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

‘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. 

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

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.’

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.’ 

‘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. 

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. 

‘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. 

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. 

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. 

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. 

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. 

‘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. 

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. 

‘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. 

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. 

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

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. 

‘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. 

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.

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] 

‘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. 

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.

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. 

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. 

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. 

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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​. 

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1985: Assam Accord signed

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