Supreme Court reserved verdict on key section of Citizenship act

A Constitution bench of the Supreme Court on Tuesday said that it does not deny that the issue of illegal immigration is “serious” while reserving orders on a bunch of petitions challenging the constitutional validity of Section 6A of the Citizenship Act.

The five-judge bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud said that the court will confine itself only to the validity of Section 6A after the Centre, represented through solicitor general (SG) Tushar Mehta, objected to a “wrong” remark made during the arguments claiming Assam was once a part of Myanmar. The issue of influx of Rohingya refugees from Myanmar is pending before another bench of the top court.

The bench, also comprising justices Surya Kant, MM Sundresh, JB Pardiwala and Manoj Misra, said, “We have already made it clear. We will confine ourselves to the validity of Section 6A.” This provision was introduced in 1985 by Parliament, extending citizenship to migrants from Bangladesh who settled in Assam after coming into the country between January 1, 1966 and March 25, 1971.

The petitions, filed by Assam Sanmilita Mahasangha and All Assam Ahom Sabha, among others, argued that singling out Assam was discriminatory as it violated the cultural, social, and political rights of indigenous citizens of one state at a time when the problem of illegal immigration was common to other states bordering Bangladesh.

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On Monday, the Centre filed an affidavit producing figures of persons granted citizenship under Section 6A, and those detected as foreigners who came in during the specified period (January 1966 to March 25, 1971). The response filed by Union home secretary Ajay Kumar Bhalla said that a total of 32,381 persons were detected as foreigners by foreigner tribunals and 17,861 of them citizenship after getting registered with FRRO as on October 31 this year.

Referring to these figures, senior advocate Kamal Nayan Chaudhary, appearing for one of the petitioners, said: “The Centre is trying to suggest this is a trivial issue as it concerns only 17,000-odd persons being given citizenship. This is not trivial, and the Centre must indicate what it has done to contain this problem.”

The court had also sought information on the inflow of illegal immigrants who came in after the cut-off period of March 25, 1971, but the Centre said that an accurate figure could not be given “since entry of such foreign nationals into the country is clandestine and surreptitious”. It further said that the detection, detention and deportation of foreign nationals staying illegally in India was a “complex, ongoing process”.

During Tuesday’s hearing, Mehta referred to a remark by senior advocate Kapil Sibal, who was appearing for Jamait UIema-I-Hind, that referred to Assam as once being part of Myanmar.

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Sibal, in his submissions last week, said, “If you look at the history of Assam, you’ll realise that it’s impossible to figure out who came when. Assam originally was a part of Myanmar and it was way back in 1824 after the British conquered a part of it that a treaty was entered into, by which Assam was handed over to the British.”

Objecting to this, Mehta said, “It seems my senior friend has read the wrong book of history. Assam was never a part of Myanmar.... I don’t think this has any relevance for the purpose of deciding the validity of Section 6A.” He further stated, “This submission has some relevance when we deal with the matter at some other level. The issue of influx from Myanmar (referring to Rohingya migrants) is separately pending before this court.”

Sibal, who was present in court, responded that there was a British book that had recording this historical fact, and pointed told Mehta, who also appeared for Assam, to check up this fact on the Assam government’s official website. The part in the website he referred to says, “The rule of the Ahom dynasty ended with the Burmese invasion of Assam and the subsequent annexation by the British East India Company following the Treaty of Yandaboo in 1826. The British emperor took charge of the state and thus begun the colonial era of Assam.”

The arguments against Section 6A were led by senior advocates Shyam Divan, KN Chaudhary, and Vijay Hansaria. They submitted that Parliament, while enacting Section 6A, amended the Constitution. It was argued that Article 6 of the Constitution provided that migrants who came from Pakistan after July 19, 1948 were permitted to become citizens if they filed an application before the appropriate authority before the commencement of the Constitution in January 1950. The petitioners argued that Section 6A changed the cut-off to January 1966 as migrants from Bangladesh as on March 25, 1971 were citizens of East Pakistan.

They further submitted that, with the settling of illegal immigrants in Assam, the demography of the state underwent a change, and the migrants now hold a dominant position in 32 out of 126 assembly constituencies.

The Centre and Assam government maintained that Section 6A served its purpose, and it was passed in a peculiar situation following the Assam Accord of 1985 to quell violent protests in the state.