Supreme Court hearing on the challenge to Section 6A of the Citizenship Act | Day 3

Agreeing with Jaising, the CJI remarks– 

‘Culture is such an amorphous concept. You say “Indian culture”. Is there an Indian culture? All of the us believe there is because we belong to this synchronisation. But what goes into it? Customs, social institutions, religion, practices, food, apparel, geographical conditions, and relationship with nature. Culture is an interplay of all this’. 

‘How do you define the word culture under Article 29? It is an expression which is notoriously vague’, Jaising submits further. 

Jaising submits– 

‘I, for one, do not know who is an indigenous person of Assam because there is no legal definition of indigenous persons in the Constitution. There is a definition of SC, ST, and the rest of the citizens. Kindly be cautious about the use of the word indigenous. Instead, we can use the word tribe. The question is - is the culture of tribes in danger? There is no definition of culture.’ 

Pointing out that the Assamese culture has been protected in numerous ways, Jaising says–

‘Assamese continues to be in the schedule of official languages of India, adequately protected. Assamese continues to be the official language of the State of Assam. There is complete protection of language script. It is one of the most diverse states in the country because of mass migrations long before the century.’

Jaising submits– ‘The 21st century is the century of refugees and migrants. The Constitution of India bears the birthmark of partition. You cannot understand the Constitution or the Citizenship act without understanding what happened almost a century before.’ 

Agreeing with the submission, the CJI points out– 

‘We will have Stateless persons. We will have people in India who cannot be granted citizenship but cannot be deported. Equally, there is substance in this – on one hand, we do not have an open border, we do not say that anyone from Bangladesh can come and settle down in India. At the same time, if you don’t take action to curb illegal migration, they may cause the same problem in India. The infrastructure, education, public hospitals are limited. You can’t allow for an unlimited influx.’ 

Pointing out the consequences that would take place if Section 6A were to be struck down, Sibal says– 

‘Assume that 6A is struck down. Bangladesh would not take them.’ 

Sibal refers to Article 29 of the Constitution. 

‘The submission I am making is this demographic change happened because of historic reasons and these reasons don’t relate only to 1947. They are etched in history right from 1824. It would be difficult for the court to identify that this happened only after 1947. It would be difficult for court to identify that this happened only after 1947’, he argues. 

CJI Chandrachud remarks – ‘An argument about demographic change as affecting culture can never be made within the territory of India. For instance, there is a huge migration happening in the IT sector. People can’t say our culture is being changed. India is one entity so no people in one State can say that our culture is being affected by the influx from other States. Too bad- that is what the Constitution presupposes.’

‘The migration of population has been embedded in history. It cannot be mapped. No migration can be mapped. If you look at the history of Assam, it is impossible to know who came when. Assam was originally a part of Myanmar. It was way back in 1824 after a British conquered a part by which Assam was handed to the British. You can imagine the movements that must have taken place’, Sibal says. 

The Attorney General submits – ‘This is a State specific resolution for a given point of time. So if the Parliament at that point did not address some other larger question, it would not render the state specific resolution as defective or illegal.’ 

Court asks Centre to file a detailed affidavit on illegal migration to Assam and North-Eastern States after March 25, 1971. The affidavit must also contain details of administrative steps taken to combat such influx of illegal immigrants. 

Details of the order are as follows – 

“At this stage, we are of the view that it would be necessary for the court to have some data disclosures from the MHA. We direct an affidavit be filed by the Centre before Monday on the following aspects:

1. Number of persons to whom citizenship has been granted under Section 6A with reference to the time period of persons who came into Assam between January 1, 1966 and March 25, 1971. 

2. How many persons have been detected to be foreigners under the Foreigners Tribunals Order, 1964, with reference to the above period? 

3. The estimated inflow of illegal migrants to India including but not confined to Assam after March 25, 1971. 

4. With respect to persons who entered after March 25, 1971- The total number of Foreigners Tribunals set by the Union, the total number of cases disposed of, the number of cases pending as of date, the average time taken for disposal of cases, the number of cases pending before the Guwahati High Court. 

5. The steps taken by the Union government at an administrative level to deal with illegal immigration into the territory of India from the North Eastern States particularly Assam. Details have to be furnished with regard to the extent of border fencing and steps the Union intends to take with estimated timelines to complete border fencing.” 

CJI Chandrachud says that the bench will dictate an order on specific aspects on which it wants data from the Centre. 

SG Mehta points out that the Supreme Court in its prior judgments has held that where the application of unequal laws is reasonably justified for historical reasons, a geographical classification founded on those historical reasons would be upheld.

CJI asks the Centre to file an updated affidavit on the steps that have been taken to safeguard the border India shares with Bangladesh. 

‘We undertake to file an affidavit of the authorised officer latest by tomorrow or the day after’, SG Mehta submits. 

CJI questions further about the steps taken to deal with illegal immigrants in West Bengal– ‘What is the extent of illegal migration from 1971 and what is the position in West Bengal? What is the government doing in West Bengal?’ 

SG Mehta responds by saying – ‘With Bengalis, their food habits, dressings, everything - they mingle easily. Because of that there may not be uproar. But that doesn’t justify the government not taking steps. I must admit.’ 

Highlighting that there are crucial problems independent of the challenge to Section 6A, CJI Chandrachud enquires from the Centre– 

‘What is the Government of India doing in terms of ensuring that you have an impermeable border? How much investment is the Government of India taking to ensure that the border becomes impermeable? What are the executive steps which the government of India is taking? To what extent has the border been fenced?

Underscoring that due process has to be followed while dealing with illegal immigrants, CJI Chandrachud says– ‘We deal with illegal immigrants who are here with some due process of law. We are not some authoritarian country that picks them up...We have to follow the rule of law because we are a democratic country. If you don’t follow the rule of law, genuine people may be picked out and thrown out.’ 

Enquiring as to why Assam was singled out amongst other border States, the CJI asks– 

‘Most important, why did you single out Assam because just yesterday we found out that West Bengal shares a much larger border with Bangladesh? Therefore, presumably, the extent of illegal migration into West Bengal would be as or even more significant. Did we have any cogent data to indicate that the extent of illegal migration in West Bengal was minimal as compared to this so we left it alone?’

CJI questions the Solicitor General further – ‘How many people got citizenship in the pre-January 1, 1966 category? How many people got citizenship between January 1, 1966, and 1971?’ How many people have entered post-March 25, 1971? 

‘We want to know from the Government of India what are we doing now because this is not just about changing the demographic of Assam. That is just one aspect. But also the burden on the existing resources’, the CJI says. 

Addressing the Solicitor General, CJI Chandrachud asks – ‘How many cases are pending before the Foreigners tribunals today? We need up-to-date data. 2,31,000 cases pending in 2014. But what is the progress? How many have been disposed off?’ 

Assam Chief Secretary Alok Kumar admitted to the Supreme Court in 2019 that the “performance” of the State government and its task force to trace illegal foreigners and deport them had been “poor” and “not satisfactory” over the past five years.

Read more here. 

Efforts to trace, deport illegal foreigners in Assam have been poor, unsatisfactory: State Chief Secretary tells SC

The government had deported only four out of 46,000 illegal foreigners identified in Assam.

Responding to this, the CJI Chandrachud remarks – 

‘In that sense, this was an international understanding between the then Prime Minister of India and Prime Minister of Bangladesh. Bangladesh would take back post-March 25, 1971. What would you do? They couldn’t be pushed out from Indian territory as illegal immigrants. The tacit understanding was that they would remain in India. You couldn’t push them out to Bangladesh because that wasn’t the obligation that was assumed by Bangladesh. Instead of maintaining them as stateless persons in India, you bring them into the mainstream by giving them citizenship.’ 

SG Mehta refers to the assurance given by the then Prime Minister of Bangladesh in February 1972, that they would take back all Bangladesh nationals who had taken shelter in India since March 25, 1971. Accordingly, a circular was issued by the Government of India on September 30, 1972, setting out guidelines for action to be taken in respect of persons who had come to India from Bangladesh. 

According to this circular, those Bangladesh nationals who had come to India before 25 March 1971 were not to be sent back and those who entered India in or after the said date were to be repatriated. 

Reiterating the concerns of the CJI, Justice Sundresh says– ‘There is no adjudication. So everyone would claim that I have come before Jan 1, 1966. How would you determine? All of them are immigrants. You have given a cut-off period. Unless there is a mechanism to deal with this, it creates confusion.’ 

‘Everyone who came between 1966-1971 did not get citizenship because for citizenship they needed to be detected. So within that larger circle, there is a smaller circle of people who came to India but never got citizenship. What happened to those people?’, the CJI enquires further. 

CJI Chandrachud points out – ‘There were people who benefited from the grant of citizenship under Section 6A. What happens to those who weren’t granted the benefit of citizenship but are illegal immigrants. And they continue to remain in Indian territory without a grant of citizenship. Nothing was done about them at all.’ 

Foreigners Tribunals, unique to Assam, are in the news as the final list of the National Register of Citizens (NRC) is to be published by July 31, on the directions of the Supreme Court. The Registrar General & Census Commissioner, India, under the Union Home Ministry, published the final draft list of the NRC on July 30, 2018 to segregate Indian citizens living in Assam from those who had illegally entered the State from Bangladesh after March 25, 1971. 

Read more here. 

Why does Assam need more Foreigners Tribunals?

As the NRC drive reaches its final stage, the Central government has sanctioned more tribunals. How will they work?

Justice MM Sundresh enquires – ‘How many of those persons you deported? None. They are neither here nor there but entitled to citizenship.’ 

The judge further underscores that there is a ‘huge gap’ between action taken by the instrument of the State and the proceedings before the tribunal.

‘The situation in Assam is facilitated by the lacuna under the Act because neither you push them to the tribunal nor they’re willing to go before the tribunal’, he adds. 

SG Mehta responds by saying – ‘The first date is 1966. It is taken because on that day an electoral roll was prepared containing the names of everyone- whether disputed, undisputed, native, or illegal. The election took place in 1967.’ 

‘Section 6A are not cases where they argue that they are not foreigners. 6A are cases where they say they are foreigners, they fulfill these conditions and therefore entitled to be citizens’, Mehta explains. 

‘Before 1985, no one would have gone and said declare me a foreigner because the cause would be deportation. But after the Act, the cause would be protection’, he adds. 

[Note: Foreigners tribunals are quasi-judicial bodies established in India under the Foreigners Tribunal Order, 1946 and Foreigners Act, 1946, and are empowered to decide whether a person is a foreigner as provided under Section 9 of the Foreigners Act.]

SG Mehta outlines that the application of Section 6A is limited to only a specific period of time. 

‘Person is deemed citizen if his parents or any grandparents were born in undivided India. The category is very limited- it applies in Assam, a limited geographical area. The category from which persons are permitted is only Bangladesh, a very limited area’, he adds. 

SG Mehta contends – ‘So far as the ground realities as pointed out by the petitioners are concerned– this influx of immigrants from foreign countries, they eat away resources that were otherwise available to them, that there are less job opportunities, there is demographic change, etc– all their concerns are true. 

The submission is declaring Section 6A to be unconstitutional is not the solution’. 

Solicitor General (SG) Tushar Mehta submits that the examination of the constitutional validity of Section 6A has nothing to do with any other amendments in the Citizenship Act. 

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 resume hearing the matter from 10:30 am. Solicitor General of India Tushar Mehta to begin submissions today.

The proceedings can be watched live here. 

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”.

Chief Justice of India D.Y. Chandrachud on Tuesday asked petitioners to show material that benefits given to cross-border migrants, who arrived in India between 1966 and 1971 just before the Bangladesh Liberation War, led to radical demographic change which impacted the Assamese cultural identity.

​​Read more here​​. 

What happened on Day 2 of the hearing?

​Read more here​. 

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Supreme Court hearing on Assam Accord LIVE updates

Supreme Court hearing on Assam Accord LIVE updates | A five-judge Constitution Bench is hearing a batch of petitions challenging the constitutional validity of Section 6A of the Citizenship Act, 1955. Follow live updates here