SC expands the scope of Assam immigrants case

The Centre must be very serious about what is happening in states bordering Bangladesh as an unchecked influx of illegal immigrants not only impacts demography but stresses resources, the Supreme Court said on Thursday as it dramatically expanded the scope of ongoing hearings over a contentious clause in India’s citizenship law.

A five-judge Constitution Bench headed by Chief Justice of India Dhananjaya Y Chandrachud also sought an estimate of all illegal immigrants to India, including but not limited to Assam, after March 25, 1971, when the war of Bangladesh began. The top court also asked for details of foreigner tribunals and deportations given and steps taken by the government to deal with illegal migration and border fencing, setting a deadline of Monday for all the data to be furnished.

“We cannot allow for an unlimited influx [of illegal immigrants]. The infrastructure, education, public hospitals here are limited… We are of the considered view that it would be necessary for the central government to provide data-based disclosures to the court. We direct that an affidavit be filed to this court on or before Monday,” said the bench, also comprising justices Surya Kant, MM Sundresh, JB Pardiwala and Manoj Misra.

The apex court was considering a clutch of petitions challenging the validity of section 6A of the Citizenship Act. This provision provided citizenship to illegal immigrants who entered and settled in Assam from erstwhile East Pakistan (now Bangladesh) between January 1, 1966 and March 25, 1971 and was inserted into the 1955 Citizenship Act in 1985, as a special provision to deal with the citizenship of people covered under the Assam Accord — a tripartite agreement signed by the All Assam Students’ Union (AASU), the Assam government and the then Rajiv Gandhi-led Union government, to preserve and protect the cultural, linguistic and social identity of Assam. A violent anti-migrant movement that had raged for six years in the border province ended with the signing of the pact.

The court was hearing a raft of petitions filed by All Assam Ahom Sabhawhich argue that section 6A is violative of Articles 14 (right to equality), 21 (right to life) and 29 (right to protection of interests of minorities) of the Constitution because it led to proliferation of illegal migrants in Assam, thus distorting the ethnic, demographic, social, cultural and economic profile of the state.

The hearings, which began on Tuesday, had so far focused on the impact of illegal immigration in Assam. But on Thursday, the court sought to expand its purview. “Irrespective of what happens on Section 6A, this is a constitutional court, and we want to know what is being done to address the problem of illegal immigration,” the court said.

In its order, the bench directed the Centre to provide information on steps taken at the administrative level to deal with illegal immigration, limited not just to Assam but all northeastern states. The Court sought information on the extent of border fencing and estimated timelines to complete the exercise in an affidavit to be filed by Monday.

The affidavit also required the Centre to inform how many people in Assam were detected as foreigners under section 6A and those immigrants who were granted citizenship upon arriving in the state between January 1, 1966 and March 25, 1971. The top court also asked for information on the number of foreigner tribunals — quasi-judicial courts set up in Assam that determine whether a person is an Indian citizen — established, the number of cases disposed by them and pending with them, the average time for disposal of cases, and appeals against tribunal decisions pending with the Gauhati high court.

In doing so, the court not only looked beyond Assam but also broadened the timeframe beyond 1971.

During the hearings, solicitor general Tushar Mehta, who appeared for the Centre, said that the petitions raise serious concerns of how the influx of illegal immigration continues unabated.

“It is a real, serious issue which is an ongoing problem and their concerns are genuine. But, declaring section 6A to be unconstitutional is not the solution. This is only for purpose of one state and a provision based on peculiar situation facing the state,” he said. He agreed to provide the necessary information required by the Court in an affidavit to be filed by the Union home secretary.

The court talked tough on illegal immigration.

“We will deal with the validity of section 6A but what are we doing post-1971? Government must be very serious on what is happening post-1971 on the ground. What the petitioners are saying is not a great deal just for Assam but the entire country as well,” the bench said.

The court also referred to the problems of border fencing as being “more critical”.

“What is the government doing to ensure we have an impermeable border? What steps are being taken to fence the border? These problems are more crucial, independent of section 6A. We keep getting matters of people seeking bail for smuggling cattle and even our own paramilitary forces are involved in some cases,” the court said.

The apex court further asked the Centre why Assam was specifically singled out by Parliament though West Bengal shared a longer boundary with Bangladesh.

“Why did you single out Assam when West Bengal shares a much larger border with Bangladesh? We want to know why was West Bengal excluded from the grant of citizenship... the argument cannot be that there was agitation in Assam... Why was West Bengal left alone... What is the position in West Bengal now?” asked the bench.

Mehta said that the statement of objects and reasons while introducing section 6A in 1985 stated that it was brought in light of the Assam Accord. The solicitor general further stated that culturally and otherwise, Axomiya and those from Bangladesh were quite distinct while in West Bengal, the migrants intermingle easily and are difficult to trace.

Mehta said between January 1966 and March 25, 1971, about 27,000 people were declared citizens. Under this provision, the grant of citizenship required the migrant to be declared a foreigner by a foreigner tribunal following which she had to register with the authorities. In some cases, the decision by tribunal got delayed. Mehta said that between 1971 and 2014, another 64,500 people got citizenship.

As the figure was not updated, the bench directed the Centre and Assam to provide data on the number of people granted citizenship under section 6A, along with the information of the number of people detected as foreigners.

Senior advocates Kapil Sibal and Indira Jaising, who appeared for people and groups supporting section 6A, said that Assam had constantly had an influx of migrants and it was wrong to suggest that they impacted culture of Assam, whose society and people have essentially been multicultural.

Sibal said, “I have a fundamental right to move from one country to another.”

The bench pointed out, “That is within the country.” To this, Sibal responded, “They were all part of undivided India. They are bound to migrate.”

The Court again said, “This right is not available to non-citizens.”

Sibal argued that petitioners cannot claim that their culture is affected without sharing proof of it. The Court said, “Demographic change affecting culture can never be made within the territory of India”, citing the example of the huge migration taking place in the IT sector. “People can’t say our culture is being changed.”

Sibal argued, “It’s a slippery slope to address the issue on demographic changes,” and requested the Court not to enter into this determination as the issue of immigration has a historical past.

Jaising said that culture did not have a specific definition and migration could not be termed as an “external aggression” as the migrants had fled their country in search of safe harbour and not with the intention of destroying the culture of a place.

“You cannot define the word culture under Article 29. It is an expression which is notoriously vague,” Jaising said. She said that in her practice at the bar for several decades she was yet to ce across a judgment defining culture.

CJI replied, “Culture is an amorphous concept. Is there an Indian culture? All of us believe there is one because we belong to this synchronisation. What goes into it? Language, custom, social institutions, religion, practices, food, apparel, geographical conditions, relationship with nature. Even music has an important bearing on culture.”

The matter will be next heard on Tuesday.

This is not the first time that the apex court is considering the issue of border fencing along the Bangladesh frontier. In a petition filed by the Assam Sanmilita Mahasangh, seeking an update of the National Register of Citizens (NRC) for Assam, the top court issued elaborate directions on border fencing on December 17, 2014.

“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. Patrolling by security forces on land and riverine routes all along the international border shall be adequately intensified,” the court had held.

The next year, the court even appointed senior advocate Upmanyu Hazarika as court commissioner to assess the progress made on the ground and file reports. This matter is also part of the 17 petitions being heard by the Constitution bench.

The issue of migration from Bangladesh to Assam has been a delicate issue in the eastern state and stoked wanton violence and clashes since the 1960s. Assamese groups say that unchecked influx of people from Bangladesh is threatening to overrun their province, but rights groups say many of those who migrated to lower Assam regions are destitute and economic migrants with little nefarious intentions.

The fault line came under sharp focus in 2019 when the state updated its NRC — which was first conducted in 1951 — and left out 1.9 million people. The process, which was monitored by the top court and required applicants to prove their ancestry and citizenship, was plagued by allegations of irregularities and arbitrariness with people not making the cut over misspellings. Since then, the institution of foreigner tribunal has come under particular criticism with the state government recently telling the Gauhati high court that in almost 85% cases, those who were declared suspected illegal immigrants were finally found to be Indian citizens.