Today, a five-judge Constitution Bench began hearing a bunch of petitions arguing that Section 6A of the Citizenship Act, 1955 caused illegal infiltration in Assam, destroying its cultural fabric.
—
Read all about Day 2 of the hearings here.
Read all about Day 3 of the hearings here.
TODAY, a five-judge Constitution Bench began hearing a bunch of petitions challenging the constitutional validity of Section 6A of the Citizenship Act, 1955.
In Re Section 6A of the Citizenship Act 1955, the petitioners argue that Section 6A caused illegal infiltration in Assam, destroying its cultural fabric.
On January 10 this year, the court had framed an issue for primary determination before the Constitution Bench: “Whether Section 6A of the Citizenship Act 1955 suffers from any constitutional infirmity.”
Today, senior advocate Shyam Divan, appearing for the petitioners before a Bench comprising Chief Justice of India Dr D.Y. Chandrachud and Justices Surya Kant, M.M. Sundresh, J.B. Pardiwala And Manoj Misra, laid down five main submissions.
Divan submitted that Section 6A of the Citizenship Act violates the essential principles of the Preamble of the Indian Constitution such as fraternity, unity and integrity of the country, and Articles 14, 21 and 29.
He also submitted that it undermines the political rights under Articles 325 and 326 of the Constitution.
Divan submitted that the provision lacks legislative competence. He questioned whether there can be legislation contrary to the deadline of citizenship provided under Part II of the Constitution.
Further, Divan submitted that the provision undermines the overarching core principles of the Constitution such as democracy, federalism and the rule of law.
Divan made averments on the history of the Assam Accord.
The Bangladesh liberation war of 1971 gave rise to apprehensions of the influx of foreign nationals into Assam and the fear of adverse effects on 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.
All Assam Students Union is a nativist student organisation of Assam.
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 had entered Assam before March 25, 1971.
In 2012, Assam Sanmilitia Mahasangha, a Guwahati-based civil society organisation, and other organisations, representing “the tribal and non-tribal population” of Assam, challenged the constitutionality of Section 6A of the Citizenship Act.
The petitioners question 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).
The petitioners contend that the sovereignty and integrity of the country were at stake due to the massive influx of “illegal” immigrants, leading to the erosion of Assamese culture.
In December 2014, a division Bench comprising the then Chief Justice of India Ranjan Gogoi and Justice Rohinton Fali Nariman framed 13 questions about the various issues challenging the constitutionality of Section 6A and fixed a timeline for updating the National Register of Citizens (NRC).
In July 2015, the Bench referred the matter to a Constitution Bench. It further directed the updating of the NRC per the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
On the cultural aspect of Assam, Divan read from the written submissions that Assamese culture developed due to the cultural assimilation of different ethnocultural groups under various politico-economic systems in different periods of history.
“The term ‘Assamese’ is often used to refer to those who are citizens of Assam. The Constitution of India has defined who shall be a citizen of India. Therefore, the reference point for determining the Assamese culture for recognition as a constitutional right has to be the date of adoption of the Constitution of India,” Divan read from the petition.
Divan informed the Bench that the Assamese language is the principal language of the state and is regarded as the lingua franca of the state. The population of Assam largely comprises numerous indigenous tribes with varied customs, languages, traditions, culture, dresses and exotic ways of life.
Some of the prominent tribes of Assam are Bodo, Singpho, Santhal, Dimasa, Karbi, Khamti, Khamyang, Mishing, Nishi, Phake and Rabha, Divan added.
Divan referred to the 175th Law Commission report on the Foreigners (Amendment) Bill, 2000, published in September 2000, which stated that the available legal framework has failed to curb illegal migration in Assam.
From the report, Divan pointed out the altercation of demographic composition in the border districts of several states.
The report highlights a higher rate of population growth in comparison to the national average in these border districts. There is evidence that many of the illegal migrants acquired ration cards and got enlisted in the electoral rolls, the report says.
Referring to a status report included in the counter-affidavit of the respondents, Divan pointed out that the rate of economic growth is low and the demographic composition has altered the rate of growth of population in districts bordering Bangladesh.
Divan highlighted the report of the Committee for Protection of Land Rights of Indigenous People of Assam, dated December 30, 2017, which urges the Union and state governments to take action by applying the Assam Accord, including through strict border fencing and establishment of foreigners tribunals.
Foreigners tribunals are quasi-judicial bodies established in India under the Foreigners Tribunal Order, 1946 and Foreigners Act, 1946 and are empowered to decide whether a person is a foreigner as provided under Section 9 of the Foreigners Act.
Subsequently, the CJI pointed out the lack of material to show the operation of Section 6A of the Citizenship Act that led to a change in Assam’s demography from 1966–71.
To this, Divan strongly questioned the Parliament’s reasoning for applying the 1966 cut-off solely to Assam. According to Divan, the law should be uniform across the country or equally to all states bordering Bangladesh in the context of the present case.
Divan objected to the “singling out” of Assam from the federation in the application of the provision of Section 6A of the Citizenship Act.
Further, the CJI stated that the agitating All Assam Students Union struck a “political compromise” with the government after 1971 that no citizenship should be allowed to foreigners.
The CJI remarked that the petition highlights the significant issue that post-1971, successive governments have failed to curb infiltration of foreigners into Assam.
This issue points to the question of enforcement of the law and does not raise doubts about the constitutional validity of the provision, the CJI said.
Divan reiterated that the infiltration of immigrants into Assam has had devastating economic, cultural, social and political impacts.
Further, Divan pointed out a report by the International Journal of Scientific and Research Publications on the change in religious and lingual composition of Assam.
Based on the analysis of district-level censuses from 1951 to 2001, the report states that “the proportion of Muslim population has been increasing rapidly in some districts whereas the Hindu population is declining”.
The report attributes the rise of the Muslim population to recent settlers from Bangladesh.
Divan highlighted from the report that from 1951–2001, the Bengali-speaking population increased by 6 percent and the population of Assamese-speaking people decreased by 9 percent in Assam.
Noting that Bangladesh is a Muslim-dominated country, the report indicated the impact of cross-border migration on religious change in the state.
When the CJI noted the decrease in the Assamese-speaking population only in the decade of 1991–2001, Divan indicated the possibility that the effect of allowing infiltration till 1966 had “a multiplier effect” on the population, with the immigrant population having more children.
Divan vehemently objected to the granting of rights and protections, including citizenship, to the Bangladeshi immigrants who entered Assam till 1966.
Further, Divan pointed out a report by the Indian Council for Social Science Research on cross-border migration into Assam from 1951–2011.
Divan highlighted the findings of the report, including that the percentage share of the Muslim population has increased from 25.37 in 1951 to 34.23 in 2011; and among eight undivided districts of Assam in 1951, five districts have experienced a sharp increase in Muslim population.
On the trends in immigration, the report states that both direct and indirect estimates reveal that Assam has been the destination for migrants mainly from East Pakistan or Bangladesh, Nepal and Myanmar before and after India’s independence.
On average, 90 percent of immigrants in Assam are of Bangladeshi or East Pakistani origin, the report says.
Divan raised the contention, “Whether the statutory response by the legislature [in the form of Section 6A of the Citizenship Act, 1955] can withstand constitutional scrutiny?”
According to Divan, the Preamble itself recognises citizens through the phrase “to secure to all its citizens” values such as justice, liberty and equality.
Divan emphasised that the Preamble’s value of fraternity is to be promoted “among citizens”, instead of a global fraternity of humankind.
Highlighting Part II of the Constitution on citizenship, Divan pointed out Articles 5 to 11 of the Constitution.
The petitioners are set to conclude their arguments and the respondents are to begin their contentions tomorrow, December 6.
Read all about Day 2 of the hearings here.
Read all about Day 3 of the hearings here.
