Tag Archives: Citizenship

The Section 6A Challenge: “Illegal Migration” as “External Aggression”

(In this guest post, Praharsh Johorey examines whether the Supreme Court can strike down legislation for violating Article 355 of the Constitution, in the context of the constitutional challenge to S. 6A of the Citizenship Act).

Later this year, the Supreme Court is due to hear the constitutional challenge to Section 6A of the Citizenship Act of 1955, which codifies a special citizenship law for the State of Assam. As explained in a previous post here, Section 6A divides ‘illegal’ immigrants (a foreigner who enters India without a valid passport or other travel documents, or someone who stays in India beyond their permitted time) into three categories, depending on their date of entry: People who entered before 1966 (who were to be regularised), people who entered between 1966 and 1971 (before the Bangladesh war, who were to be taken off the electoral rolls for ten years, and then regularised) and people who entered after 1971 (who were to be expelled in accordance with existing law).

Assam, post-independence, has dealt with the severe economic and societal consequences of continued mass migration from East Pakistan (now Bangladesh), which, it is claimed, has caused ‘perceptible change in the demographic patterns’ of the State. The principle challenge to Section 6A is thus based on the continuing failure of existing law to adequately protect the state from the undesirable consequences of mass migration.

Legally, two grounds are urged. First, that the State has failed to uphold its constitutional duty to protect the Assamese people from ‘external aggression’ under Article 355 of the Constitution. Second, that the differential (and arguably weaker) laws applicable to the State of Assam is a breach of the right of the Assamese people to be granted equal protection under Article 14.

I will deal predominantly with the first issue in this essay. Article 355 reads:

“It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.”

The substance of this question was previously before the Supreme Court in Sarbananda Sonowal v. UOI, where Mathur J., writing for a bench of three judges, decided challenges to the Illegal Migrants (Determination by Tribunals Act), 1983 (“IMDT Act”) and its corresponding rules, which also dealt with illegal immigration in the State of Assam. Having engaged in a detailed analysis of the meaning of the term ‘external aggression’, and reading illegal immigration as falling within its scope, Mathur J. concluded in paragraph 42:

‘The provisions of the IMDT Act and the Rules made thereunder clearly negate the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect every State against external aggression and internal disturbance. The IMDT Act which contravenes Article 355 of the Constitution is, therefore, wholly unconstitutional and must be struck down.’

To declare the IMDT Act unconstitutional, Mathur J. could have relied on one of two grounds: first, that the IMDT Act is “law” under Article 13 of the Constitution, and therefore subject to constitutional scrutiny; and second (and which is more likely), that provisions such as Article 355 imposes a positive obligation upon the Government in power, the failure to adequately discharge which is unconstitutional. I will examine the veracity of both these assumptions independently.

Article 13 and Part III

Article 13 was inserted in the Constitution to ensure that ‘laws’ or ‘laws in force’ that contravene constitutional provisions are void – applying to both existing statutes and enactments subsequent to the Constitution. The question relevant for this essay is the scope of this Article, to determine whether it can apply to Article 355. The relevant provisions of the Article read:

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

The wording of Article 13(1) and (2) is clear and unequivocal – it applies exclusively to Part III. Applying the principle of literal interpretation, and read with Expressio Unius Est Exclusio Alterius (which was discussed in the context of the definition of ‘laws in force’ here), it is clear that ‘laws’ or ‘laws in force’ can be declared unconstitutional as a result of the operation of this Article only if they are in breach of the provisions of Part III, and not the Constitution as a whole. Demonstrably, Mathur J. did not and could not declare the IMDT Act unconstitutional under Article 13.

Part III and Unconstitutionality

Even accepting the contentious argument that the flow of illegal immigrants is contemplated under the term ‘external aggression’, we have to understand whether it is permissible for the Supreme Court to declare the inadequacy of state measures under Article 355 as being sufficient grounds to declare that such measures are unconstitutional.

Article 355 imposes a duty upon the Union to protect every state against external aggression. It is accepted legal theory that all duties have correlative rights (Hohfeld) which would imply that all states, or aggrieved citizens (as in the present dispute) have a ‘constitutional right’ to be protected against external aggression and internal disturbance by the Union.

Rights not expressly codified in Part III of the Constitution – and therefore not “fundamental rights” as such – have been nonetheless interpreted as ‘constitutional rights’ by the Supreme Court, notably in Rajbala v. State of Haryana – which recognised a Constitutional right to ‘contest elections’. In this case, the Constitutionality of the Haryana Panchayati Raj (Amendment) Act, 2015 was challenged, which imposed more stringent qualifications (educational and financial) to be eligible to contest Panchayati elections, and was challenged as effectively denying a class of people their ‘constitutional right’ to contest elections. Despite holding that the amendments were constitutional Chelameswar J. held:

‘Various provisions, by implication create a constitutional right to contest elections to these various constitutional offices and bodies. Such a conclusion is irresistible since there would be no requirement to prescribe constitutional limitations on a non-existent constitutional right…. Every citizen has a constitutional right to elect and to be elected to either parliament or the state legislatures.’

The implications of this are clear – that if the state undertakes certain actions that impede upon a constitutional right, for e.g. if it enacts legislation debarring citizens from contesting elections, its actions may be said to be ‘unconstitutional’, even though the right to contest elections is not specifically enshrined in the Constitution. However, Chelameswar J. recognised the supremacy of the legislature to alter these rights, noting:

Under the scheme of our Constitution, the appropriateness of the Legislative Body is determined on the basis of the nature of the rights sought to be curtailed or relevant and the competence of the Legislative Body to deal with the right having regard to the distribution of legislative powers between Parliament and State Legislatures. It is also the settled principle of law under our Constitution that every law made by any Legislative Body must be consistent with provisions of the Constitution.

Therefore, the exercise of a duty through legislation can only be deemed unconstitutional if it is outside the ‘Legislative competence of the enacting body’, or it abrogates ‘provisions of the constitution’. It is my contention that ‘provisions of the constitution’ here means Part III, most crucially, Articles 14 and 21. In Rajabala itself, the Court’s determination of whether the Constitutional right to contest was violated was based on an examination of Article 14, and whether the scheme imposed was ‘arbitrary’, or created a classification without intelligible differentia. The Court undertook no analysis of whether ‘Constitutional rights’ could per se be violated, and demonstrated that at best, they can be linked to a breach of provisions of Part III.

External Aggression and the Insufficiency of State Action

Assuming (but not conceding) that the Court could strike down the IMDT Act for insufficiently discharging the 355 duty, it becomes significant to note the reasons why J. Mathur declared the IMDT Act so woefully inadequate, so as to render it in direct conflict with the Union’s obligations. He first frames the duty of the state as:

‘To take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose.

Thus, to satisfactorily discharge its constitutional obligation, the Union was required to prove that it had undertaken any measures in furtherance of protecting the State of Assam from illegal migration. The Statement of Objects and Reasons of the Act makes clear that the Union recognised this problem, stating that ‘the influx of foreigners who illegal migrated into India…pose a threat to the integrity and security of the region’ with the Preamble further elucidating that ‘the continuance of these such foreigners in India is detrimental to the interests of the public of India.’ Thus there was clear recognition of the problem, and demonstrable intent to take measures to deal with it.

The scheme created under the Act was to authorise the Government to set up Tribunals for the purpose of determining whether migrants were legal. The justification for the scheme was to ensure that adequate safeguards were granted to those migrants who entered and resided in India legally, and to prevent their arbitrary deportation by granting them access to fair judicial process.

However, a perusal of the provisions of the Act lead to Mathur J. concluding:

The application of the IMDT act and the rules made thereunder in the state of Assam has created the biggest hurdle and is the main impediment or barrier in identification and deportation of illegal migrants. On the contrary, it is coming to the advantage of such illegal migrants as any proceedings initiated against them under the said provision which, as demonstrated above, almost entirely ends in their favour, enables them to have a document having official sanctity to the effect that they are not illegal migrants.

Thus, the malfunctioning/ineffectiveness of the Act, and not the absence of measures itself that lead to Mathur J.’s declaration – which belies his own standard for the discharge of the 355 duty. We should therefore examine whether the Supreme Court has in the past struck down any acts for insufficiently fulfilling a positive State obligation, even when no discernible standard for adequate discharge is established. The positive duties of the State under Article 21 serve as an appropriate starting point.

For example, the Supreme Court has read the right to a ‘Clean and healthy environment’ as being an essential feature of the ‘Right to Life’ under Article 21 – with the right to clean water and air forming part of the broader corpus of this right. Hohfeld’s test implies that there exists a correlative duty upon the State to ensure a clean environment, with access to clean air and water. Applying Mathur J.’s test, legislations like the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution Act), 1974 are therefore liable to be struck down as being ‘unconstitutional’ if it is proven that despite their operation, the environment continues to be polluted, or that people still do not have free access to clean resources. However, the Courts have continually refused to engage in the effectiveness of these legislations (or their consequent constitutionality) in solving these problems, instead engaging only with interpreting the Right to Life under Article 21. The dictum of the Andhra Pradesh High Court in Wasim Ahmed Khan v. Government of AP is relevant. Here, a PIL was filed against the Government for its failure to provide safe drinking water and prevent the outbreak of disease in the state as illegal and unconstitutional. While recognising that providing drinking water is a ‘priority issue’, the bench noted:

‘So far as the relief in general terms which was claimed by the petitioner (of the negligence being an unconstitutional act) is concerned, it should be borne in mind that in a State or rather a country where growth of population is in geometrical proportion and the natural resources are not only static but depleting or made to deplete, it will be only utopian to issue a direction as desired by the petitioner.

It is submitted that such a demonstrable failure of a ‘priority’ state duty under Article 21 can be treated no differently from the separate duty of the State under Article 355. Both problems: ensuring access to vital resources and preventing illegal immigration, are constrained by the limited resources of the State and the partial burden that is borne by the local populous in discharging such an obligation. The AP High Court went on to note:

There cannot be any second opinion that the State is under obligation to provide atleast drinking water to all its citizens, but at the same time, the limited availability of the water resources as well as the financial resources cannot be ignored. Within the available resources, the problem should be attended to with utmost importance and promptitude. In fact, it should be treated as a priority issue. At the same time, making the Government alone responsible and liable to provide water may not solve the issue. The people at large should address themselves to the problem and learn to use the water, particularly drinking water, in a judicious and reasonable manner. Wastage of drinking water, which is not available in plenty, would naturally result in denial of the same to the other needy persons. Individual and collective efforts in this regard are very much necessary and such efforts go a very long way in minimizing the scarcity.

In respect of State duty under Article 355, considerable responsibility was placed upon the local citizenry to report incidents of illegal immigration to allow the State to maximise the resources available to it. While the ultimate functioning of the Act may have resulted in an excessive burden upon the citizens, which caused lower rates of deportation and difficulty in identification of illegal immigration, it is respectfully submitted that these are not sufficient grounds to declare that the IMDT Act is wholly unconstitutional – but that parts of it are to be enforced with greater effectiveness. In summary, only a successful challenge to the IMDT Act under Part III (which was done) should have lead to a declaration of unconstitutionality.

Fact-Finding and the Insufficiency of the Supreme Court

A close reading of the Sonowal judgement reveals another troubling truth – that the Court makes its determination of the inadequacies of the IMDT Act on the basis of a distinct lack of concrete evidence. It relies primarily on a single report of the Governor of Assam (1998) to draw its conclusions on the efficacy of the Act, disputing none of the reports factual conclusions. Without drawing any inferences as to the accuracy of the report itself, this raises the questions of the ability of the Supreme Court to make concrete factual determinations, and whether it is even the correct forum for such determinations to be made.

The Supreme Court has been vested with wide powers to do justice in the Constitution – but its power to appreciate new evidence, or interfere with the findings of lower courts is limited when exercising its appellate authority. However, the Supreme Court has called on ‘expert committees’ to assess more closely the evidence submitted by the parties. For example, in an order passed concerning the Cauvery Water Dispute between Karnataka and Tamil Nadu, the Court ordered:

‘It is submitted that it would be in the fitness of things that a High Powered Technical Team is appointed by the Chairman of the Supervisory Committee who is the Secretary of the Ministry of Water Resources…to proceed immediately to the site so that an inspection of the entire Basin is done for assessing the ground realities and prepare a report forthwith for being placed before this Hon’ble Court.’

There have been numerous incidents of the Supreme Court having relied upon neutral ‘expert evidence’, such as in State of Tamil Nadu v. K. Balu, concerning liquor vendors on highways, or its creation of a Technical Expert Committee that studied Genetically Modified Organisms in Aruna Rodrigues v. UOI. Its treatment of facts in Sonowal is thus a departure from its current practice of commissioning independent studies to determine contentious assertions of on-ground realities. The Judiciary, in comprising of judges who are (justifiably) unable to address the several scientific and complex questions of fact posed to it, is invariably one-sided in its approach, as it lacks the inherent institutional expertise to make its own determinations of fact. As a consequence, the Supreme Court isn’t equipped to scientifically determine when a partial breach of duty has taken place, and what the threshold for such partial breach should be. As a result, judgements like Sonowal ignore the often overlapping (and not the binary positive or negative) outcomes that may result from legislations like the IMDT.

Conclusion

The Constitutional Bench of the Supreme Court is required to answer a set of thirteen questions as referred to it by the Division Bench before which the case was originally placed, some of which are crucial for the purposes of this essay:

(iv)

  • Whether Section 6A violates Article 355?
  • What is the true interpretation of Article 355 of the Constitution?
  • Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”?
  • Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?

To answer these questions effectively, it is crucial that the Supreme Court deliberate upon the nature of Article 355 – as to whether it requires that any measure be undertaken, or that these measures must also be effective. Answering these questions clearly would avoid Mathur J.’s dictum, which confused ‘unconstitutionality’ with ‘ineffectiveness’ – and may go some way to easing the plight of the Assamese.

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Filed under External Aggression (Article 355), positive rights

The Constitutional Challenge to S. 6A of the Citizenship Act (Assam Accord): A Primer

Tomorrow, a Constitution Bench of the Supreme Court will commence hearings in the constitutional challenge to Section 6A of the Citizenship Act. The case comes up for hearing as the result of a referral order under Article 145(3) of the Constitution, passed by a bench of two judges in Assam Sanmilita Mahasangha vs Union of Indiawho framed thirteen questions of law to be decided by a Constitution Bench.

Tomorrow’s hearing may be a brief one. The Bench has indicated that it is unlikely to hear the matter unless all counsel commit to finishing within seven working days. Given the scale and complexity of some of the questions (as we shall see), as well as the number of intervention applications that were allowed after the referral, this is unlikely. In light of the fact, however, that even if it is not heard at the present, it is likely to be taken up soon after the vacations (in July or August), I shall provide a brief primer to the case.

History

Migration has been a source of social and political conflict in the border-state of Assam at least the middle of the 19th century. During the framing of the citizenship provisions of the Constitution during the Constituent Assembly Debates, the representative from Assam highlighted issues pertaining to large-scale migration from Bengal, its impact upon the indigenous population and culture, and asked for specific constitutional provisions to deal with the issue. Ultimately, however, the Constitution contained only skeletal provisions on citizenship – in particular, to deal with the Partition – and left the issue to be addressed by Parliament. Article 5 of the Constitution incorporated the broad jus soli principle of citizenship, stipulating that all those who had their domicile in India at the time of the commencement of the Constitution, would be citizens if they were born here, if either of their parents were born here, or who had been ordinarily resident for not less than five years. Articles 6 and 7 were the Partition provisions, dealing with migrations to and from Pakistan, and fixing 19th July 1948 as the “cut-off date” for citizenship. And to clarify that these provisions were only dealing with the special situation created by the Partition, Article 11 contained an overriding clause authorising Parliament to legislate for citizenship. Parliament did so in 1955, with the Citizenship Act, and a special law for Assam titled the Immigrants (Expulsion from Assam) Act of 1950.

To regulate the entry of migrants into India, the colonial government had passed the Foreigners Act of 1946, which continued even after Independence. This Act conferred powers upon the government to prohibit entry of foreigners, among other things. In 1964, acting under the authority of the Act, the Government promulgated the Foreigners Tribunal Order. This Order authorised the Government to establish Tribunals to determine questions of nationality, in accordance with the provisions of the Foreigners Act. Consequently, the Constitution of India, the Citizenship Act of 1955, the Foreigners Act of 1946, and the Foreigners Tribunal Order of 1964 comprised a comprehensive statutory regime dealing with both substantive and procedural questions of citizenship and migration.

Meanwhile, issues of migration continued to cause conflict in Assam. Matters came to a head during the run-up to the Bangladesh War of 1971, where in fact a massive influx of refugees into India from (what was then) East Pakistan was cited as one of the reasons for India’s involvement in the war. The issues did not cease even after 1971, however, because it was perceived that many of “illegal immigrants” were being put on voting rolls by political parties attempting to create faithful constituencies. Ultimately, this led to a state-wide student movement called the Assam Agitation, which lasted six years, from 1979 to 1985. The movement was sometimes punctuated by violence, including the Nellie massacre of 1983. It was finally brought to a close in 1985, with the signing of the Assam Accord between the Government of India, and the leaders of the movement.

The Assam Accord, S. 6A of the Citizenship Act, and the IMDT Act 

The Assam Accord was effectively a political compromise between the government and the leaders of the Assam Agitation. While providing for two separate cut-off dates for regularisation of migrants (an issue we shall discuss in a moment), the Accord also contained provisions for the development of Assam, as well as obligating the Government to see that “the international border shall be made secure against future infiltration by erection of physical barriers like walls, barbed wire fencing and other obstacles at appropriate places.”

Section 6A of the Citizenship Act – introduced through an amendment in 1985 – was the legislative enactment of the legal part of the Assam Accord. Section 6A divided “illegal” immigrants of Indian origin (i.e., those whose parents or grandparents were born in undivided India) who came into Assam from Bangladesh into three groups: those who came into the state before 1966; those who came into the state between 1966 and 25th March, 1971 (the official date of the commencement of the Bangladesh War); and those who came into the state after 1971. The first group (pre-’66) was to be regularised. The second group (’66 – ’71) was to be taken off the electoral rolls, and regularised after ten years. The third group (’71-onwards) was to be detected and expelled in accordance with law.

Section 6A, therefore, was a special citizenship law for Assam, hammered out as a result of a political settlement. Meanwhile, two years before the Accord and S. 6A, the Parliament had also passed the Illegal Migrants (Determination by Tribunals Act) of 1983. This Act authorised the Government to set up Tribunals for the purposes of determining whether migrants were illegal. Under the Act, the Government framed the Illegal Migrant Rules of 1984. The Act and the Rules, taken together, made some departures from the procedure under the Foreigners Act and the Foreigners Tribunal Order: for example, the procedure for making a reference to the Tribunal was made more onerous, the burden of proof was shifted from the State to the individual, and so on.

Consequently, the statutory regime governing migration to Assam now became Section 6A of the Citizenship Act, read with the Illegal Migrants Act of 1983, and the Illegal Migrant Rules of 1984. While the Government defended this regime on the basis of protecting minorities, who were genuine citizens of India, from persecution they were also attacked as being too lax on illegal migration, and making it almost impossible to deport illegal migrants.

The Judgment in Sarbananda Sonowal vs Union of India

The Illegal Migrants Act and Rules were challenged before the Supreme Court in Sarbananda Sonowal vs Union of India. A three-judge bench of the Supreme Court held that the statutory regime, with its reversal of the burden of proof clause (placing the burden of proof upon the State rather than the alleged illegal migrant), and its procedural requirements of filing applications (“… accompanied by affidavits sworn by not less than two persons residing within the jurisdiction of the same police station in which the person referred to in the application is found, or residing, corroborating the averments made in the application.“), was insufficient to check the problem of illegal migration. Relying upon a 1998 report by the Governor of Assam, the Supreme Court held that there was a flood of Bangladeshi migrants into Assam, which the statutory regime had failed to check. This, the Court held, amounted to “external aggression” against the State of Assam, and under Article 355 of the Constitution, it was the duty of the Union to protect every state against external aggression. Holding the statutory regime of the Illegal Migrants Act and Illegal Migrants Rules to be directly responsible for this failure, the Court held the Act and Rules to be unconstitutional.

After Sarbananda Sonowal, therefore, the Tribunals under the IMDT ceased to function, and the statutory regime reverted to Section 6A of the Citizenship Act, and the Foreigners Act and the Foreigners Tribunal Order. The State’s attempt to get around this through passing the Foreigners Tribunal (for Assam) Order of 2006 was also struck down by the Court in Sarbananda Sonowal (II)

The Referral Order

It is in this context that the challenge to Section 6A of the Citizenship Act came before the Supreme Court. In his referral order, Justice Nariman framed thirteen questions of law:

“(i) Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6A of the Citizenship Act in as much as Section 6A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4 (2) read with Article 368 (1)?

(ii) Whether Section 6A violates Articles 325 and 326 of the Constitution of India in that it has diluted the political rights of the citizens of the State of Assam;

(iii) What is the scope of the fundamental right contained in Article 29(1)? Is the fundamental right absolute in its terms? In particular, what is the meaning of the expression “culture” and the expression “conserve”? Whether Section 6A violates Article 29(1)?

(iv) Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution? Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”? Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?

(v) Whether Section 6A violates Article 14 in that, it singles out Assam from other border States (which comprise a distinct class) and discriminates against it. Also whether there is no rational basis for having a separate cut-off date for regularizing illegal migrants who enter Assam as opposed to the rest of the country; and

(vi) Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh.

(vii) Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?

(viii) Whether, after a large number of migrants from East Pakistan have enjoyed rights as Citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases?

(ix) Whether section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits Citizens who have allegedly not lost their Citizenship of East Pakistan to become deemed Citizens of India, thereby conferring dual Citizenship to such persons?

(x) Whether section 6A violates the fundamental basis of section 5 (1) proviso and section 5 (2) of the Citizenship Act (as it stood in 1985) in that it permits a class of migrants to become deemed Citizens of India without any reciprocity from Bangladesh and without taking the oath of allegiance to the Indian Constitution? 

(xi) Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order, 1964 made thereunder?

(xii) Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law?

(xiii) Whether Section 6A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed citizenship to such persons arbitrarily?”

As we can see, these referral questions raise a host of complex issues about the interaction between the State’s sovereign power of conferring citizenship, the right to equal treatment, and the right to preservation of culture and identity; the interaction between rule of law and citizenship provisions arising as a result of political settlements; and the impact of a possible judgment of unconstitutionality upon vested rights that have stood for decades.

The Aftermath

After the referral order, some further petitions were filed, that were tagged with the main case. These included a petition asking that Section 3 of the Citizenship Act be read in a manner that children of illegal immigrants, when it came to Assam, ought not to be granted citizenship, on the basis that Section 6A was a comprehensive provision dealing with the issue of migration and citizenship in Assam. Petitions were also filed challenging the Foreigners (Amendment) Order of 2015 and the Passport (Entry into India) Amendment Rules, 2015, which stated that “persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31 st December, 2014” would be granted exemption from application of the Foreigners Act and the Passport Rules. It is unclear whether the Court will take up these additional issues for hearing as well.

Either way, we shall know more about the progress of this case tomorrow.

(Disclosure: The writer is assisting the Respondents (AASU) in defending the constitutionality of S. 6A)

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Filed under Citizenship, Cultural Rights, Equality, External Aggression (Article 355), Migration, Minority Rights