Assam Accord | Government Has To Be Given Leeway To Make Compromises For Nation's Well Being, Says Supreme Court [Day 2 Hearing]

While hearing petitions challenging Section 6A of the Citizenship Act 1955, the Supreme Court on Wednesday (December 6) orally remarked that certain political compromises made by the government of the day for the overall welfare of the nation cannot be always judged on the basis of hindsight wisdom, as the Government has to be given the leeway to deal the expedient problems of the moment.

The Constitution Bench comprising CJI DY Chandrachud along with Justices Surya Kant, MM Sundresh, JB Pardiwala, and Manoj Misra was hearing a batch of petitions challenging the constitutional validity of Section 6A of the Citizenship Act 1955. This provision allows foreign migrants, who came to Assam after the 1st January, 1966 but before the 25th March, 1971, to seek Indian citizenship. Certain indigenous groups of Assam have challenged this provision, contending that it legalised illegal infiltration of foreign migrants from Bangladesh.

Government Should Be Given Latitude To Maintain Peace & Security Of Nation: Supreme Court

Continuing his submissions from tomorrow, Senior Advocate Shyam Divan stated that Section 6A(2) operated in a blanket manner, without any specific determination process. Thus, people who have been ordinarily resident in Assam since their entry into the state are deemed to be citizens of India from January 1, 1966. This lack of scrutiny and time limit could encourage false claims and attract people to remain in Assam as per Divan.

Divan then asserted that the classification of Assam as against other border states lacked reasonable classification in accordance with Article 14. He pointed out the singling out of Assam, when other border states like West Bengal and Tripura also faced challenges of illegal migrants from Bangladesh, was in violation of Article 14. According to Divan, Assam and neighbouring border states, as well as all states dealing with illegal migrants, formed a homogeneous single class and as such should be dealt with in a similar manner. 

At this submission, the CJI asked–

"Can parliament say that we are doing this to bring about peace in a strife-ridden state? Or should we continue that strife merely because we will be discriminating between states? These are vexed issues. The situation of Assam in 1985- there was so much violence. Any solution they would have found is bound to be an inexact solution. There cannot be a mathematical solution."

Divan responded by stressing the need for constitutionally sustainable methods that do not disproportionately impact one community or state. He argued that rewarding illegal migrants in one place was inherently discriminatory. He added that if the object and the effect of a law itself was discriminatory, the law fell foul of Article 14. In this context, he relied on the judgement in Nagpur Improvement Trust v Vithal Rao. 

However, the CJI did not seem convinced and stated that the government should be given latitude, particularly in states affected by insurgency and violence. He emphasized the need to grant the government leeway to make necessary adjustments to preserve the nation, acknowledging that compromises may be required for the overall well-being of the country. He said–

"We must also give the government that latitude. Even today we have states in the North East, we may not name them, but there are states affected by insurgency, affected by violence. We have to give the government that leeway to make adjustments necessary to save the nation. Maybe 25 years later it may appear - that why did you make that concession when the nation is stable. But at that moment, these are compromises that the government has to make to save the overall well-being of the nation."

Divan raised issues with the framing of Section 6A. He contended that there seemed to be a lack of study or material within the government that would indicate an understanding of the potential impact of the provision. Divan criticized the allowance of extensive regularization of illegal immigrants without a specified time frame, suggesting that it opened the door for future generations to make claims for citizenship. He argued that such provisions severely undermine the economic, social, and political aspirations of the indigenous people protected under Article 21 of the Constitution. Divan concluded by asserting that legislative provisions should align with constitutional principles and not run counter to them.

Parliament Protecting Illegal Immigrants Instead Of Indigenous Population: Senior Advocate KN Choudhury

Senior Advocate KN Choudhury also argued for petitioners today and stated that the situation that existed today involved the Government of India prioritizing and protecting immigrants at the expense of indigenous people of Assam. He criticized Section 6A, describing it as a "Parliamentary joke" enacted by a regime with a significant majority. He said–

"Can we ever conceive a situation where the Government of India wants to protect immigrants at the cost of indigenous people? Today, out of 126 Assembly Constituencies, indigenous people can stand in elections only in 57 constituencies. This is legislation brought by a regime who had a brute force of 400+ MPs. It is a parliamentary joke to have this legislation. Instead of protecting indigenous people, people living in the state, they're protecting illegal immigrants for the sake of politics?"

He pointed out that the government should have adhered to the 1950 act, which mandated the deportation of illegal migrants, rather than introducing amendments. Choudhury alleged that these changes were driven by vote bank politics. He said–

"Our own people have been rendered a minority in their own state. There is a section of citizens who cannot enjoy their Pujas in the State of Assam. If we go to this district it is almost 90% plus immigrants. We cannot even venture into those areas. Government of the day has the duty to create an atmosphere where we can enjoy our culture."

He contended that there was no compelling reason for the enactment and challenged the validity of the Assam Accord as a basis, asserting that it lacked parliamentary ratification as required by Article 253 of the Constitution. Choudhury argued that Section 6A violated both Part II and Part III of the Constitution, including Article 13, characterizing it as a "stillborn legislation."

He further asserted that Section 6A infringed upon the political rights of the people of Assam, violating Article 326 and 327 of the Constitution. Choudhury contended that the provision, by its nature, took away political rights from the people in Assam.

Choudhury asserted that without a variation of Article 6, Section 6A could not have been enacted. He pointed out that Article 6 provides for a cut-off date of July 19, 1948. The CJI interjected, noting that Article 6 pertained to migration from Pakistan. Choudhury responded by stating that present-day Bangladesh was a part of Pakistan and since Bangladesh was a successor state, even its citizens should be bound by the cut-off date of July 19, 1948.

Choudhury, in his submissions also emphasized the principle of non-dual citizenship, asserting that individuals affected by Section 6A had not renounced their citizenship of the other country (Bangladesh). He further claimed that there was no record with the government indicating renunciation of citizenship.

Cannot Say That Parliament Was Conferring Citizenship To Citizens Of Pakistan, It Was Looking At Human Sufferings: Supreme Court

Senior Advocate Vijay Hansaria argued on similar lines as Senior Advocate Shyam Divan and stated that all border states were homogeneously placed and should be treated similarly. He added that India had refugee policies for Tibetans, Chakmas, Rohingyas, and Tamils but did not confer citizenship in this manner to any of the said refugees. Thus, Section 6A was in violation to Article 14 of the Constitution.

The CJI countered this by stating that Article 6 of the Constitution conferred citizenship on a class of persons who migrated from Pakistan, subject to certain conditions. The CJI emphasized that this provision doesn't limit the power of Parliament to confer extended citizenship from any place be it Pakistan or Bangladesh. He urged a contextual interpretation of constitutional provisions, stating that Article 6 primarily dealt with the partition and the protection of those fleeing from Pakistan due to violence. The CJI asserted that Parliament had the authority to legislate and confer citizenship. He said–

"Article 6 confers citizenship on a class of persons who migrated from Pakistan. That doesn't dilute the power of Parliament under Articles 245 and 246 and Entry 17 to confer extended citizenship from Pakistan itself, forget Bangladesh! We can't look at constitutional provisions in the abstract. Article 6 deals with the partition. Large number of persons were fleeing from Pakistan to India because of the sheer violence. Article 6 protected those people. The last thing we can say is that they were conferring citizenship to citizens of Pakistan. Parliament was looking at the whole human sufferings."

Hansaria continued the discussion, stating that immigrants from Bangladesh were individuals who had taken an oath of allegiance to a Constitution that recognized Islam as the final arbiter. He said–

"We have a continued identity. We have secularism. Persons who have come have an oath of allegiance to a constitution where they recognize Islam as the final arbiter. I'm not saying they cannot. But we don't share that in India. People go to Meghalaya. Cross the road and come to Assam and then claim citizenship. It is a huge problem. If a person is bound by the preamble of his parent constitution which says that Allah has sovereignty over the entire universe, can such a person who is subscribing to that oath become an Indian citizen without subscribing to Indian oath of allegiance?"

To this, the CJI stated that the compelling circumstances that lead people to become refugees would show that individuals often leave their homes under duress. The CJI noted that refugees may not want to plead allegiance to the motherland from which they fled due to adverse conditions.

However, Hansaria insisted that refugees may be granted other help but not citizenship.

Case Title: In Re Section 6A Of The Citizenship Act 1955 W.P.(C) No. 274/2009 PIL-W

Assam Accord | S.6A Citizenship Act Was Enacted Considering Humanitarian Aspects After Bangladesh Liberation, Says Supreme Court During Hearing

Assam Accord | Supreme Court Seeks Official Data On Number Of People Benefitted From Section 6A Of Citizenship Act