SC reserves verdict in the challenge to Section 6A of the Citizenship Act

Centre said that ‘it is not possible to collect accurate data of illegal migrants living in various parts of the country as such foreign nationals enter the country in a clandestine manner’

December 12, 2023 10:20 am | Updated 04:51 pm IST

A view of Supreme Court complex.

A view of Supreme Court complex. | Photo Credit: Shiv Kumar Pushpakar

A Constitution Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud on December 12 reserved its verdict on petitions challenging the constitutional validity of Section 6A of the Citizenship Act, 1955. 

Section 6A is a special provision inserted into the 1955 Act in furtherance of a Memorandum of Settlement called the ‘Assam Accord’ signed on August 15, 1985, by the then Rajiv Gandhi Government with the leaders of the Assam Movement to preserve and protect the Assamese culture, heritage, linguistic and social identity. 

In an affidavit filed before the court, the Union Home Ministry said that it would not be able to provide accurate data on the extent of illegal migration of foreigners into India. 

Also read | Over 30,000 people detected to be foreigners by tribunals in Assam since 1966: Centre

It further stipulated that a total of 14,346 foreigners were deported from the country between 2017 and 2022, due to reasons like overstay, visa violation, illegal entry etc. While 17,861 migrants who had entered Assam between January 1966 and March 1971 were given Indian citizenship.

Solicitor General Tushar Mehta appearing on behalf of the Union government apprised the bench also comprising Justices Surya Kant, M.M. Sundresh, J.B. Pardiwala, and Manoj Misra that fencing of the Indo-Bangladesh border has not been completed due to the ‘non-cooperation’ of the West Bengal government. He also detailed steps taken to curb the influx of illegal immigrants particularly in the North-East States in response to the court’s earlier order

Also read | Supreme Court asks Centre to give details of inflow of ‘illegal’ migrants

During the proceedings, the Chief Justice highlighted that Section 6A was enacted as a humanitarian measure in the wake of the 1971 Bangladesh Liberation War and is deeply interwoven in the country’s history. Therefore, it is not similarly placed as an amnesty scheme for illegal immigrants in general.

The petitioners argued that the application of the provision should be uniform across the country or equally to all States bordering Bangladesh and that ‘singling out’ Assam was impermissible. 

Defending the provision, the respondents pointed out that any argument on citizenship has to take into account that the country has witnessed the disastrous consequences of the Partition. Denying citizenship would lead to a transgression into ‘cultural nationalism’ from ‘civic nationalism’ thereby defeating sound constitutional principles, it was further argued. 

Get the latest news from the Supreme Court hearing on Section 6A of the Citizenship Act | Day 1 | Day 2| Day 3

Section 6A establishes March 24, 1971, as the cut-off date for entry into the State – those who came to the State on or after January 1, 1966, but before March 25, 1971, were to be declared as “foreigners” and would have all the rights and obligations of Indian citizens except that they would not be able to vote for 10 years.

In December 2014, the Supreme Court framed 13 questions covering various issues raised against the constitutionality of Section 6A, including whether the provision diluted the “political rights of the citizens of the State of Assam”; whether it was a violation of the rights of the Assamese people to conserve their cultural rights; whether an influx of illegal migrants in India constitutes ‘external aggression’ and ‘internal disturbance’, among others.

In 2015, a three-judge Bench of the court referred the case to a Constitution Bench.

Follow here for all live updates:
  • December 12, 2023 16:05
    Arguments have been concluded. The judgment has been reserved.
  • December 12, 2023 15:12
    The proportionate response is to apply minimum international humanitarian law standards but without the grant of citizenship: Divan

    ‘The proportionate response in this could be minimum international humanitarian law standards that could be extended. But those would be short of citizenship....and that is where section 6A fails, it grants citizenship without any meaningful scrutiny’, Divan submits further. 

  • December 12, 2023 14:53
    Section 6A delivers a ‘deathblow’ as far as demographic and future impacts are concerned: Divan

    Divan contends further that by singling out Assam, Section 6A delivers a ‘deathblow’ as far as demographic and future impacts are concerned. 

  • December 12, 2023 14:24
    If you are not providing a machinery, it means there is no criteria: Divan

    Responding to this, Divan points out – ‘If you are not providing a machinery, it means there is no criteria.’

    He adds – ‘When you have such key concepts which remain undefined and open-ended, we are left guessing as to what is the exact contour or parameter of persons who are ordinarily residents in Assam.’

  • December 12, 2023 14:19
    When the law provides for a deeming consequence, that consequence operates without adjudicating: CJI Chandrachud

    Addressing Divan’s contention, CJI Chandrachud remarks – 

    ‘When the law provides for a deeming consequence, that consequence operates without adjudicating. When the consequence is called into question in an individual case on the ground that condition requisite for attaining that consequence are absent, the fact that those conditions were not satisfied and therefore the person is not entitled to benefit of deeming consequence is always up for adjudication.’ 

    Citing an example, he further states – ‘Suppose a person prior to 1966 applies for passport. The passport officer says I can’t give you a passport, you are not an Indian citizen. At that stage, if he says no I am an Indian citizen by virtue of Section 6A(2), certainly the validity of his status can then be decided.’ 

  • December 12, 2023 14:14
    The bench has reconvened. The hearing has resumed.
  • December 12, 2023 13:09
    The hearing will resume post lunch at 2pm
  • December 12, 2023 13:08
    You cannot distribute citizenship without rational, reasonable logic: Divan

    ‘This is a fatal flaw in the scheme of Section 6A. This is completely void because you cannot distribute citizenship without rational, reasonable logic. When you prescribe criteria and no machinery to determine the criteria, the net effect is no criteria’, Divan argues. 

  • December 12, 2023 13:08
    No temporal limit to the operation of Section 6A, citizenship can be applied even today: Divan

    Divan contends that there is no temporal limit to the operation of Section 6A and that application for citizenship under the provision can be done even today.

    ‘There is no machinery for the purpose of evaluating, assessing or determining the grant of citizenship under Section 6A(2)‘, he adds. 

  • December 12, 2023 13:04
    Senior Advocate Shyam Divan commences his rejoinder arguments
  • December 12, 2023 13:03
    Non-cooperation by West Bengal government: SG Mehta

    ‘West Bengal Government follows a far slower, more complex direct land purchase policy. Even for national security purpose like border fencing, there is non-cooperation by the state government. If the State of West Bengal cooperates in acquiring the land and hands over the land for fencing, the Central government will do so’, the Solicitor General says. 

  • December 12, 2023 13:01
    Timely completion of fencing not done due to pending land acquisition issues with the WB government: SG Mehta

    SG Mehta informs the court that the State of West Bengal shares about 2216 km border with Bangladesh of which 78 percent has been covered with fence.

    ‘Progress has been hindered due to pending land acquisition issues with the Government of West Bengal. The state government has not adopted the right to fair acquisition and transparency in land acquisition’, he says. 

  • December 12, 2023 12:54
    Fencing of the Indo-Bangladesh border to be completed in 3 years: SG Mehta

    SG Mehta submits that the Union government intends to secure the remaining portion of the Indo-Bangladesh border through fencing and technological steps. 

    ‘The fence work is expected to be done in 3 years. The technological work is expected to be done in 2 years’, he adds. 

  • December 12, 2023 12:48
    Assam Police Border Personnel and Assam Police Armed Branch personnel deployed on the Indo- Bangladesh border: SG Mehta

    The court is informed that the Assam Police Border Personnel along with the Assam Police Armed Branch personnel are deployed in the second line of defense behind the border outposts along the Indo-Bangladesh border. 

    ‘Presently 14 number of border outposts and 14 numbers of petrol posts are functional as second lines of defense unit in 4 districts of Assam sharing the international border with Bangladesh to detect illegal migrants’, the Solicitor General says. 

  • December 12, 2023 12:43
    State governments have been requested to take steps to curb illegal migration: SG Mehta

    The Solicitor General informs the court that State governments have been requested to take steps to curb illegal migration. 

    ‘Police authorities in the State and other law enforcement agencies may be constantly sensitised on the issue of illegal immigration of foreign nationals and be appraised of legal provisions. They are advised to take prompt action...Action is directed to be taken against those who abet as well’, he says further. 

  • December 12, 2023 12:41
    SG Mehta elaborates on the steps taken by the Centre to address the influx of immigrants

    ‘Monitoring of deporting of detected foreigners and convicted foreigners in the State of Assam is done by a standing committee headed by the Joint Secretary of the Ministry of External Affairs and having members from the State of Assam. The standing committee has held 6 meetings so far’, he says. 

  • December 12, 2023 12:38
    3,34,966 cases disposed of by Foreigners Tribunals, 97714 cases pending: SG Mehta

    The Solicitor General says that the total number of cases disposed of by Foreigners Tribunals is 3,34,966 and the number of cases pending is 97714. 

  • December 12, 2023 12:36
    The situation is grim, will not dispute the citizens on that: SG Mehta
  • December 12, 2023 12:35
    Not possible to give an exact estimate of the inflow of illegal migrants; they come clandestinely: SG Mehta

    ‘The second question was the estimated inflow of illegal migrants into India including but not confined to the State of Assam. In substance we have said there is a porous border, they come clandestinely. Therefore it is not possible to give exact figures’, Mehta says. 

    Also Read: Over 30,000 people detected to be foreigners by tribunals in Assam since 1966: Centre

    Over 30,000 people detected to be foreigners by tribunals in Assam since 1966: Centre

    The Centre said 3,34,966 cases were disposed of by 100 FTs operational in Assam till October 31, and 97,714 cases were pending. It said that till December 1, 8,461 cases arising out of FTs were pending before the Gauhati High Court. 

  • December 12, 2023 12:32
    32,381 people detected to be foreigners by Foreigners Tribunals in Assam since 1966

    Solicitor General (SG) Tushar Mehta apprises the court that 32,381 people were “detected to be foreigners” by Foreigners Tribunals in Assam since 1966. 

    ‘There may be few cases that may be pending before HCs or this court but largely the number will not vary’, he adds. 

  • December 12, 2023 12:18
    A citizenship regime has to be based without discrimination: Farasat

    Farasat underscores that a citizenship regime has to be based without discrimination and that India has a continuously changing electorate. 

  • December 12, 2023 12:14
    The minute we elevate culture to the extent of denying someone else citizenship, we have transgressed from the area of civic nationalism to cultural nationalism: Farasat

    Farasat submits that the right to culture cannot be extended to deny someone citizenship. He points out that the citizenship regime under Article 14 is that of a civic nationalism.

    ‘The minute we elevate culture to the extent of denying someone else citizenship, we have transgressed from the area of civic nationalism to cultural nationalism’, he adds. 

  • December 12, 2023 12:12
    Advocate Shadan Farasat begins his submissions
  • December 12, 2023 11:41
    Merely because you are granting citizenship to one class of people, does not mean there is a violation: Singh

    ‘Merely because you are granting citizenship to one class of people, does not mean there is a violation. Violation may be claimed by another class who is denied citizenship. But can someone else say why are you giving it to him?’, Singh asserts. 

  • December 12, 2023 11:38
    Section 6A of Citizenship Act does not violate Article 14 of the Constitution: Singh

    Singh contends that Section 6A does not violate Article 14 of the Constitution and is rather a step towards legalising the determination of foreigners as per the Assam Accord.

  • December 12, 2023 11:37
    Senior advocate C.U. Singh begins his arguments
  • December 12, 2023 11:36
    Senior advocate Sanjay Hegde concludes his submissions
  • December 12, 2023 11:35
    Hedge recounts how the citizenship of Zulfikar Ali Bhutto [former Prime Minster of Pakistan] was questioned

    Hedge recounts – ‘There was a man who went to school in Bombay. His family was in Karachi. He became minister there. The question of his citizenship came up. It was in Nov ‘58 that he withdrew his petition before this court to assert that he was Indian. The gentleman’s name was Zulfikar Ali Bhutto.’ 

    [Zulfikar Ali Bhutto was the former Prime Minsiter of Pakistan] 

  • December 12, 2023 11:29
    People resent greatly when their Indian-ness is questioned: Hedge

    ‘I say this from some experience, particularly from when I went to Shaheen Bagh- people resent greatly when their Indian-ness is questioned. We are all Indians. We may have come from different boats but we are in the same ship’, Hedge says. 

  • December 12, 2023 11:27
    This very year a seemingly innocuous statement in a tax case ended up having consequences in Sikkim: Hedge

    Referring to the Supreme Court’s order in Association of Old Settlers of Sikkim v. Union of India (January 2023), Hedge submits – 

    ‘For example, this very year a seemingly innocuous statement in a tax case ended up having consequences in Sikkim. The Learned Solicitor General appeared there. I will pass on the order.’ 

    Also Read: Supreme Court observation on Sikkimese Nepalis: Kiren Rijiju says Centre to file review petition supporting Sikkim govt

    Supreme Court observation on Sikkimese Nepalis: Kiren Rijiju says Centre to file review petition supporting Sikkim govt

    The Supreme Court in an observation on January 13 referred to the Sikkimese Nepali community as “immigrants”, sparking protests in the State.

  • December 12, 2023 11:22
    Indian citizenship is not ethno-nationalist; No superior or inferior citizenship based on ancestry: Hegde

    Hegde contends that Indian citizenship is not ethno-nationalist and is not based on language, religion, or culture. There is no superior or inferior citizenship based on ancestry of any time. 

    ‘This court should eschew any statement that may ever unintentionally be judgemental of such claims, especially in emotive areas of North East’, he cautions. 

  • December 12, 2023 11:20
    Arguments on citizenship have to take into account that the nation has witnessed a Partition: Hedge

    Hedge submits that arguments on citizenship have to take into account that the nation has witnessed a Partition. 

    ‘Those who had gone from India needed a permit to come back and resettle. That permission was very difficult to get. This applied largely to the western border....it is clear that the permit system isn’t to apply on the eastern border, and for good reason. There was a substantial number of Hindus who still remained in erstwhile East Pakistan who were yet to come over’, he says. 

  • December 12, 2023 11:13
    Senior advocate Sanjay Hedge begins his submissions on behalf of the respondents
  • December 12, 2023 11:11
    The Bench has convened. The hearing has begun.
  • December 12, 2023 10:20
    A five-judge Constitution Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud will hear rejoinder submissions today

    A five-judge Constitution Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud and also comprising Justices Surya Kant, M.M. Sundresh, J.B. Pardiwala, and Manoj Misra will hear rejoinder submissions in the case today from 10:30 am onwards. The proceedings can be watched live here. 

  • December 12, 2023 10:18
    1985: Assam Accord signed

    The Assam Accord, a Memorandum of Settlement (MoS), signed in the early hours of August 15, 1985, by the Union government, the All Assam Students’ Union (AASU) and the All Assam Gana Sangram Parishad ended the six-year bloody agitation (1979-1985) to detect, disenfranchise and deport “illegal” residents from the State. It also altered the nature and perception of India’s federal characteristics and left an indelible imprint on the issue of citizenship in the country. 

    Read more here​. 

    1985: Assam Accord signed

    At the core of the Accord was the “Foreigners Issue”.

  • December 12, 2023 09:51
    Over 30,000 people detected to be foreigners by tribunals in Assam since 1966: Centre

    The Union government submitted an affidavit in the Supreme Court on December 11 stating that 32,381 people were “detected to be foreigners” by Foreigners Tribunals (FTs) in Assam since 1966.

    Replying to a question on number of persons in Assam who were granted citizenship between the years 1966-1971 under Section 6A (2) of the Citizenship Act, 1955, the government said 17,861 persons registered with the Foreigners Regional Registration Office (FRRO) till October 31 this year.

    Click here to read more...

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