Citizenship Act: Supreme Court to take up pleas on contentious section from October 17

The Supreme Court will begin hearing from October 17 a set of petitions challenging the constitutionality of a provision of the 1955 Citizenship Act that allows migrants from East Pakistan, who entered India between January 1, 1966, and March 25, 1971, and have been living in Assam, to register themselves as citizens of India.

Hearing the matter on Wednesday, a five-judge constitution bench asked the petitioners as well as the Attorney General R Venkatramani and solicitor general Tushar Mehta, who appeared for the Centre and the Assam government, to get the matter ready by compiling digital record of all documents and laws to be relied upon by October 3 and file all submissions of arguments to be advanced by each lawyer in the case by October 10 — a week ahead of the date of hearing.

“The title of the proceedings shall be ‘In Re: Section 6A of the Citizenship Act, 1955’. The nodal counsels appointed in the matter shall bring the compilations filed so far in conformity with a standard operating procedure issued by the Supreme Court on August 22, 2023 (Guidelines for filing written submissions and compilations before Constitution Benches),” said the bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud.

The bench, also comprising justices AS Bopanna, MM Sundresh, JB Pardiwala and Manoj Misra, added that the final document shall bifurcate compilations and submissions based on those who oppose Section 6A and those supporting it.

Section 6A is a special provision inserted into the 1955 Citizenship Act on December 7, 1985, based on the Assam Accord -- a tripartite agreement among the Rajiv Gandhi-led central government, the Assam government and the All Assam Students Union to preserve and protect the Assamese culture, heritage, linguistic and social identity. The Accord came at the end of a six-year-long agitation by the All Assam Students Union to identify and deport illegal immigrants, mostly from neighbouring Bangladesh, from the State.

The special provision allows people who entered Assam between January 1, 1966, and March 25, 1971, and who are residing in the state, upon being detected as foreigners, to register themselves as Indian citizens. Upon registration, such people will have the same rights and obligations as a citizen of India, but will not be entitled to be included in any electoral roll for 10 years.

The law has since been challenged by several individuals and organisations, with the first among them approaching the top court in 2009. The petitions raised several issues to question this provision claiming it to be violative of right to equality (Article 14), right to life (Article 21) and minority rights (Article 29) under the Constitution of India as it singles out Assam from other border states for having a separate cut-off date for regularising illegal migrants who entered Assam as opposed to other states. Even Muslim bodies such as Jamiat Ulama-e-Hind have questioned the provision for being “anti-minority”.

On January 10 this year, the top court noted that the set of petitions, besides raising challenge to Section 6A, also raised issues pertaining to the National Register of Citizens (NRC) for Assam and setting up of foreign tribunals. These issues were segregated by the Court to be taken up at a later date.

It was also agreed between the parties to consider what relief could be given to such persons who enjoyed citizenship benefits under Section 6A, particularly whether the children born to persons who migrated into India from specified territories (including East Pakistan) are entitled to grant of citizenship.

By the same order, the Court had appointed advocates Fuzail Ayyubi and Diksha Rai as nodal counsels for the rival sides to make a common compilation having documents relied on by both sides. The bench said that such a compilation assists them while writing the judgment.

Out of the 18 petitions forming the bunch of matters under consideration, the Assam government indicated that only four petitions relate to Section 6A challenge while the bulk of petitions challenge NRC and foreign tribunals in Assam.

In the past, the Court had indicated that while examining the insertion of Section 6A, a preliminary question to be decided will be whether a political agreement by way of Assam Accord could be judicially reviewed as Courts may decline to enter the “political thicket” and annul matters of such magnitude that seeks to provide a political resolution to a long-standing dispute.

The Centre had opposed the petitions filed in the Court after a long delay of 27 years since the enactment in 1985.

Section 6A created a special provision for Assam by which persons of Indian origin who entered from Bangladesh (East Pakistan) between January 1, 1966 and March 25, 1971 and who are residing in the state, upon being detected as foreigners, will be allowed to register themselves in the NRC. Upon registration, such a person will have the same rights and obligations as a citizen of India but will not be entitled to vote for the Parliament or Assembly for a period of 10 years, the provision said.