“Protect constitutional culture and morality, not notoriously vague ‘culture’,” Indira Jaising on Day 3 of Section 6A hearings
On Day 3 of the hearings in a batch of petitions challenging the constitutional validity of Section 6A of the Citizenship Act, 1955, the respondents sought to give historical context to their argument that the provision is constitutionally valid.
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Read all about Day 1 of the hearings here.
Read all about Day 2 of the hearings here.
TODAY, a five-judge Constitution Bench started hearing the respondents in 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.
Section 6A provides for special provisions as to the citizenship of persons covered by the Assam Accord. The Assam Accord of August 1985 is a tripartite agreement between the Assam government, the Union of India, and the All Assam Students Union.
The Accord followed the Bangladesh liberation war of 1971, which gave rise to apprehensions of the influx of Bangladeshis into Assam and the fear of adverse effects on the political, social, cultural and economic life of the state.
Section 6A of the Citizenship Act allows the grant of citizenship to those immigrants of Indian origin who had entered Assam before January 1, 1966 and allows citizenship to those who entered after January 1, 1966, but before March 25, 1971 based on certain conditions.
Plenary powers under Article 11
At the outset, the Solicitor General of India Tushar Mehta, appearing for the Union government and state government of Assam, accepted the contentions of the petitioners regarding the concerns of demographic change on account of the alleged influx of illegal immigrants in Assam.
On the rationale behind the cut-off date of January 1, 1966, Mehta explained that it represents the date when the electoral roll was prepared for the elections held in 1967. The electoral roll included citizens as well as illegal immigrants in Assam.
For the reasoning behind the date of March 25, 1971, Mehta indicated that the military Operation Searchlight could have led the then prime ministers of India and Bangladesh to enter into an agreement or an understanding.
On such an international agreement, Mehta stated that Bangladesh gave a solemn assurance that all illegal immigrants who entered Assam after March 25, 1971 would be taken back by Bangladesh.
Delving into the details of Section 6A of the Citizenship Act, Mehta explained that the benefit of citizenship can be claimed for those who are declared 'foreigners' by the Tribunal constituted under the Foreigners (Tribunals) Order, 1964.
Mehta addressed the petitioner's argument that Section 6A is not constitutionally valid.
Whereas Article 11, which allows the Parliament to "regulate the right of citizenship by law", was enacted to make space for future contingencies, Mehta added.
Mehta highlighted the documents pertaining to the Constituent Assembly debates to stress that the framers of the Constitution deemed it fit to leave the power of recognition as well as termination of citizenship to the Parliament.
Attorney General for India R. Venkataramani argued that Article 11 of the Constitution grants plenary powers to the State to deal with citizenship.
"State-specific resolutions cannot be held to be illegal or defective in view of certain larger issues not considered at the time by the government of India," the Venkataramani submitted.
Historical context to change in demography
Senior advocate Kapil Sibal, appearing for the respondents, began his arguments by stating, "Migration of people is historical and cannot be mapped."
Sibal argued that migration to Assam cannot be attributed to a single event of the birth of the State of Bangladesh. The migration has been etched in history since 1824, that is, since the then British empire occupied Assam, which was initially a part of Myanmar, Sibal submitted.
Sibal stated that with the partition of Bengal in 1905, East Bengal and Assam were forced to merge, causing the integration of Ahom and non-Ahom people.
Thus, Sibal sought to emphasise that the contention of demographic change in Assam cannot be the rationale for challenging the cultural fabric under the Constitution.
Assam has a diverse culture, he added.
On the issue of concentration of Muslim population in certain areas, Sibal contended that Assam has Scheduled Areas, inadvertently causing the concentration of the Muslims in specific areas outside such Scheduled Areas.
On the contention of the petitioners that the indigenous Assamese were deprived of their land rights, Sibal submitted that tea planters had been holding land in Assam before 1951 as well.
On the consequences of striking down Section 6A, Sibal argued that the immigrants would have no place to go and would be rendered stateless.
"Where will they go?" Sibal asked.
In agreement, the CJI reiterated that the documented understanding between the then prime ministers of India and Bangladesh provides that Bangladesh will take back only those who migrated from Bangladesh to Assam after 1971.
Culture of tribes is protected
Senior advocate Indira Jaising, appearing on behalf of the respondents, Assam Public Works and All Assam Minorities Students Union, argued that the petitioners have failed to prove that their language, culture or script is impacted, and hence Article 29 is not violated.
Jaising highlighted Assamese language continues to be adequately protected under the schedule of official languages in the Constitution.
"There is complete protection of language and script," Jaising stressed.
Assam being a multilingual state, Jaising objected to the petitioners producing data on the percentage of the population speaking Assamese as compared to Bengali.
Jaising argued that since there was no definition of "indigenous" in the Constitution, the term "tribes" could be used for indigenous people of Assam instead.
Jaising pointed out that under Article 342 of the Constitution, the Parliament is empowered to enact laws enumerating Scheduled Castes and Scheduled Tribes in different states. Under Article 244 of the Constitution, special provisions for the administration of Scheduled Areas in states including Assam have been made, she pointed out.
In addition, Jaising also stated that Article 244A of the Constitution provides for special dispensation for self-governance in tribal areas.
Jaising argued that given the "notoriously vague and ambiguous" term 'culture', "constitutional culture" or "constitutional morality" should be considered, which is not endangered in Assam.
According to Jaising, the running thread in the Constitution can be seen firstly, in the relevance of the birthmark of Partition; secondly, the consideration of intention to settle or resettle permanently in India; and thirdly, the reference to "undivided India".
All of the three factors are included in Section 6A of the Citizenship Act, Jaising stated.
Jaising submitted that Section 6A is sui generis, and hence a special provision that can be considered as included under the proviso to Article 7 (which does not freeze the cut-off date to July 19, 1947).
Lastly, Jaising argued that immigration cannot be equated with war to be included within the meaning of "external aggression".
Court's directions
During the course of the hearing, the Bench raised concerns about the burden of available limited resources in the state on account of the unlimited influx of illegal immigrants in Assam post-March 25, 1971.
Subsequently, the court directed the home ministry to submit an affidavit containing data on the number of persons granted citizenship under Section 6A between January 1, 1966, and March 25, 1971; and the number of persons detected to be foreigners by the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 during 1966–71.
The Bench also directed disclosure of the estimated inflow of illegal immigrants to India, including Assam, from March 25, 1971 onwards.
In respect of persons alleged to have entered India after March 25, 1971, the Bench directed the submission of data on the number of Tribunals set up by the Union and state governments; the number of cases disposed of; the number of cases pending; the average time taken for disposal of cases; and the number of cases pending before the Gauhati High Court.
The Bench required the ministry to also present steps which the Union and state governments should take to deal with the issue of immigration to northeastern states, particularly Assam, concerning border fencing.
The ministry was directed to submit an affidavit on or before Monday.
The respondents are set to conclude their arguments on Tuesday, after which the petitioners will make their rejoinder submissions.
Read all about Day 1 of the hearings here.
Read all about Day 2 of the hearings here.
