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 India, who 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.
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.
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)