Constitution Bench to take up Section 6A of Citizenship Act for preliminary determination

Bench led by CJI Chandrachud will determine if the section of the Citizenship Act, 1955 suffers ‘constitutional’ infirmity’

Updated - January 11, 2023 02:27 am IST

Published - January 10, 2023 10:47 pm IST - NEW DELHI

Supreme Court of India. File

Supreme Court of India. File | Photo Credit: ANI

A Constitution Bench led by Chief Justice of India D.Y. Chandrachud on Tuesday said it will first take up for preliminary determination whether Section 6A of the Citizenship Act, 1955 suffers from any “constitutional infirmity”.

Section 6A was 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. The Accord came at the end of a six-year-long agitation by the All Assam Students Union (AASU) to identify and deport illegal immigrants, mostly from neighbouring Bangladesh, from the State.

During the hearing, Solicitor General Tushar Mehta urged that Section 6A was valid. It was enacted as part of a statute, that is, the 1955 Act. The petitions challenging the provision, filed after nearly 40 years since the enactment of Section 6A, should not be entertained.

Mr. Mehta also raised the question whether the court would be entering the political thicket by judicially reviewing the provision.

Under Section 6A, foreigners who had entered Assam before January 1, 1966, and been “ordinarily resident” in the State, would have all the rights and obligations of Indian citizens. Those who had entered the State between January 1, 1966 and March 25, 1971 would have the same rights and obligations except that they would not be able to vote for 10 years.

Petitions were filed challenging the “discriminatory” nature of Section 6A in granting citizenship to immigrants, illegal ones at that. The petitioners, including Assam Public Works and others, argued that the special provision was in violation of Article 6 of the Constitution, which fixed the cut-off date for granting citizenship to immigrants at July 19, 1948.

One of the parties in the case, Assam Sanmilita Mahasangha, a Guwahati-based civil society organisation, had sought the update of the National Register of Citizens (NRC) for Assam on the basis of the 1951 NRC and not on the electoral rolls of March 1971.

On December 2014, the Supreme Court had 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 constitute ‘external aggression’ and ‘internal disturbance’, among others.

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

All these years, the ‘Section 6A’ case had waited out even as the Supreme Court monitored the preparation and publication of the final Assam NRC list in August 2019, which saw the exclusion of over 19 lakh people. The Assam NRC authority has now approached the court seeking a re-verification. The past years also saw the enactment of the controversial Citizenship (Amendment) Act, which allowed accelerated citizenship to immigrants who belong to minority communities in Afghanistan, Bangladesh and Pakistan.

The Bench listed the case for hearing from February 14, giving time to the parties to prepare and circulate the records before the hearing.

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