Context: A five-judge Constitution Bench of the Supreme Court headed by Chief Justice of India (CJI) by a 4-1 majority verdict upheld Section 6A of The Citizenship Act, 1955, which codified the political consensus of the 1985 Assam Accord.
Assam Accord 1985
- The tripartite Assam Accord was signed among the central and Assam governments and the leaders of the Assam Movement on 15 August 1985.
- IN 1979, All Assam Students Union (AASU) began an agitation demanding the identification and deportation of “illegal foreigners”, predominantly from Bangladesh.
- The agitation lasted six years, culminating in the historic Assam Accord between the central and state governments and the leaders of the Assam Movement.
- It set January 1, 1966, as the base cut-off date for detecting “foreigners” and deleting them from electoral rolls.
- It also provided a process for granting citizenship to those who arrived in the state after January 1, 1966, up to March 24, 1971. Those who arrived after this date but up to March 24, 1971, would “have their names deleted from electoral rolls” for 10 years, after which their names would be restored.
- IN 1985, in order to give effect to the Assam Accord, Section 6A was introduced in The Citizenship Act, 1955.
Section 6A of The Citizenship Act, 1955
- Through an amendment to the Indian Constitution in 1985, Section 6A was added to the Citizenship Act, 1955, following the Assam Accord. It deals with the issue of citizenship for residents of Assam, particularly in the context of illegal immigration from East Pakistan (now Bangladesh).
- Key Provisions of Section 6A:
- Immigrants who entered Assam before the date of January 1, 1966, are deemed to be Indian citizens.
- Immigrants who entered Assam between the dates January 1, 1966, and March 25, 1971, are entitled to seek Indian citizenship provided they fulfil the eligibility criteria. They would, however, be disenfranchised (i.e., they would not have voting rights) for a period of 10 years from the date of detection.
- Immigrants who entered Assam on or after March 25, 1971, are declared to be illegal immigrants and are liable to be detected, detained and deported. Section 6A outlines the establishment of tribunals to detect and verify foreigners in Assam.
Arguments challenging Section 6A
- The legal scheme for granting citizenship for those who migrated from Pakistan is in Articles 6 and 7 of the Constitution. The petitioners argued that Section 6A, which deals with migrants from East Pakistan (later Bangladesh) amends this provision — a change that can only be made through a constitutional amendment.
- The petitioners argued that Section 6A, which was specifically drafted for Assam, violates the principle of equality because (i) it confers citizenship only to migrants to Assam, and (ii) if curbing Bangladeshi migrants is the issue, then other border states are also excluded. They also argued that the March 24, 1971 cut-off date is arbitrary.
- The petitioners argued that extending the cut-off date to include migrants as citizens went against the SC’s ruling in Sarbananda Sonowal vs Union of India (2005), in which the court held that “illegal immigration” falls under the definition of “external aggression”.
- In Sonowal, the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) was under challenge. The court struck down the law, which also applied only to Assam, saying it was ineffective in dealing with illegal immigration in comparison to laws such as the Foreigners Act, 1946, which applied to the entire country.
- Article 29(1) of the Constitution guarantees citizens the fundamental right to conserve the “distinct language, script or culture of its own”. The petitioners argued that Section 6A is violative of Article 29, since conferring citizenship to migrants from Bangladesh increases the Bengali population and affects the “culture of the Assamese population”.
Observations by SC
Does Parliament have the power to make law regulating citizenship?
- The SC held that Articles 6 and 7 are only meant to determine citizenship at the commencement of the Constitution on January 26, 1950. Section 6A, on the other hand, “deals with those who are not covered by the constitutional provisions”. “Section 6A aligns with the fundamental purpose of Articles 6 and 7, which was to extend citizenship rights to those affected by the country’s partition”.
- Articles 6 and 7 were aimed at safeguarding the rights of those citizens who found themselves residing in Pakistan after Partition.
- Section 6A grants citizenship to persons of Indian origin migrating from erstwhile East Pakistan “due to political disturbances in a foreign territory”
- Entry 17 of the Union List gives Parliament the power to make laws to address “Citizenship, naturalisation and aliens”.
- Article 11 of the Constitution, under which Parliament can make “any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship”. None of the other Articles in this Part of the Constitution (including Articles 6 and 7) will “derogate” or take away from this power.
- Thus, the Parliament can amend the law relating to citizenship is the most significant takeaway from the ruling — since this could have ramifications for other cases, including the challenge to the 2019 Citizenship (Amendment) Act.
Does Section 6A violate the Right to Equality?
- The SC held that the events leading up to the signing of the Assam Accord placed the state in a unique position, even when compared to other border states. The magnitude of influx to Assam and its impact on the cultural and political rights of the Assamese and Tribal populations is higher [than elsewhere].
- Although West Bengal has a higher immigrant population than Assam, the impact on Assam is greater because of its smaller size and population.
- It is, therefore, “rational” to classify Assam as separate from other border states for the purposes of 6A.
- Since a piquant situation such as that in Assam [because of the Movement] did not exist in any of the other states, Section 6A’s objective did not extend to allowing such citizenship in these other States.
Does Section 6A facilitate “external aggression” by allowing illegal immigration?
- The SC expressed reservations in applying Sonowal in the challenge to Section 6A. Section 6A does not allow for “unabated migration”, and instead offers a “practical solution” in the form of a “controlled and regulated form of immigration”, which does not amount to “external aggression”.
Does granting citizenship to migrants violate the rights of Assamese people to conserve their culture?
- The majority verdict rejected the argument that change in the demography of Assam erodes the rights of indigenous Assamese. Accepting this contention “would undermine the idea of fraternity envisaged by our Constitutional drafters, and bring to life their fears by threatening the cohesion of our diverse nation”.
- SC held that “the mere presence of different ethnic groups in a State is insufficient to infringe the right guaranteed by Article 29(1)”.
Key Fact:
- THE CAA, 2019 introduced another group-specific section, Section 6B, in The Citizenship Act, which set December 31, 2014, as the cutoff date for Hindu, Christian, Sikh, Parsi, Buddhist, and Jain migrants from the Muslim-majority countries of Pakistan, Bangladesh, Afghanistan.