Assam NRC: Supreme Court to hear constitutional validity of Section 6A of the Citizenship Act

Constitution bench led by the Chief Justice fixes February 14 to hear the petitions challenging the provision. 

– –

ON Tuesday, a five-judge Constitution bench of the Supreme Court, comprising Chief Justice of India Dr. D.Y. Chandrachud, and Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha, while hearing a series of petitions challenging the validity of Section 6A of the Citizenship Act, 1955, framed, for primary determination, the issue of whether the provision 'suffers from any constitutional infirmity'.

The parties were directed to submit a joint compilation and written submissions within a period of three weeks. The matter is listed to be heard on February 14.

On the point of framing of issues, the Solicitor General of India, Tushar Mehta, presented the categorisation of a series of related matters in three categories, that is, firstly, the 'parent question' of the constitutionality of section 6A of the Act; secondly, the challenge to the validity of the National Register of Citizens ('NRC'); thirdly, relating to the Foreigner's Tribunal.

Senior Advocates Kapil Sibal, Indira Jaising and Dushyant Dave, representing the respondents who are supporting the validity of section 6A, agreed with Mehta that the issue of challenges to section 6A must be prioritised by the court. The bench, subsequently, noted that the issue of the constitutional infirmity of the provision would be taken up.

National Register of Citizens

Assam's NRC is purported to be a list of all citizens in the state of Assam. While there has been an expression of plans by the Union Home Minister to implement the NRC across India, the NRC has seen its implementation solely in Assam. In order to manage the migration of 'illegal' immigrants post-partition into Assam, an NRC, containing the particulars of individuals registered within Assam, was prepared during the census of 1951 under the directive of the Union Ministry of Home Affairs.

However, the Bangladesh liberation war in 1971 gave rise to apprehensions of the influx of foreign nationals into Assam and the fear of adverse effects upon the political, social, cultural and economic life of the state. This led to the Assam Accord of August 1985, a tripartite agreement between the Assam government, the Union of India, and the All Assam Students Union.

Section 6A was inserted in the Citizenship Act in 1985 to give effect to the Assam Accord, and allow the grant of citizenship to those immigrants who entered the state of Assam before March 25, 1971, paving the way for the preparation of a second NRC, after the 1951 census, to ascertain a list of 'illegal' immigrants in Assam. The provision categorises immigrants in Assam as those who entered the State before 1966, between 1966 and March 25, 1971, and after March 25, 1971.

Also read: Ten reasons why the NRC exercise is both illegal and unconstitutional

Challenge to Section 6A of the Citizenship Act:

In 2012, Assam Sanmilitia Mahasangha and other organisations, representing 'the tribal and non-tribal population' of Assam, challenged the constitutionality of section 6A. The petitioners questioned the separate cut-off date for Assam, which is March 1971, as opposed to the rest of the country, which is July 1948 (as provided under Section 6 of the Citizenship Act). It was the contention of the petitioners that the sovereignty and integrity of the country were at stake due to the massive influx of 'illegal' immigrants, leading to the erosion of the Assamese culture.

In December 2014, a division bench comprising the then Chief Justice of India Rajan Gogoi and Justice Rohinton Fali Nariman framed 13 questions pertaining to the various issues challenging the constitutionality of section 6A, and fixed a timeline for updating the NRC. Under the monitoring of the Supreme Court, thus, the process of updating the 1951 NRC began.

In July 2015, the bench referred the matter to the Constitution bench. It further directed the updating of the NRC in accordance with the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. Thereafter, in July 2018, the final draft of the 'Supreme Court-monitored exercise' to prepare the NRC was released. Out of the 3.29 crore applicants, 40 lakh names were left out.

In response to the release of the NRC, the division bench observed that the published NRC is only a draft and 'cannot be the basis of any action by any authority'. The court permitted the then Union Government to undertake modalities to deal with claims or objections to enable publication of the final NRC. Under the continued monitoring of the Supreme Court, in August 2019, the final Assam NRC list was published. A total of 19 lakh names, out of the 3.3 crore applicants, were excluded from the list.

In a recent development in May 2021, the Assam NRC authority approached the Supreme Court to seek re-verification of the citizen's list and highlighted irregularities in the process.