S.6A Citizenship Act | Why Assam Singled Out Though West Bengal Shares Larger Border With Bangladesh? Supreme Court Asks Union [Day 3]

While hearing petitions challenging Section 6A of the Citizenship Act 1955, the Supreme Court on Thursday (December 6) orally remarked that regardless of the outcome of the petitions on the constitutionality aspect, the issues raised in the petitions pertaining to illegal immigration were "crucial problem independent of Section 6A". The court directed the Union Government to furnish data on the inflow of illegal migrants to Assam and North-Eastern states after March 25, 1971. It also directed the Centre to inform the steps taken by the Government at an administrative level to deal with illegal immigration into the North Eastern states particularly Assam. Details have to be furnished in regard to extent of border fencing and the estimated timelines to complete border fencing.

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.

Why Was Assam "Singled Out" When West Bengal Shared Larger Border With Bangladesh?: Supreme Court

At the outset, Solicitor General Tushar Mehta emphasized that the examination before the court was limited to the question of constitutional validity of Section 6A of the Citizenship Act 1955. He then stated that while it was acknowledged that there was an influx of immigrants that were eating away opportunities for Indian citizens, declaring Section 6A as unconstitutional was not the solution. Referring to the text of Section 6A, the SG asserted that the provision confined to a particular period of time (pre-1971) for a particular place (Assam). Further, the category from which persons were permitted to enter India was only through Bangladesh, with additional conditions such as their parents or grandparents having been born in undivided India. 

To the submissions of the SG, Justice MM Sundresh remarked–

"There is a huge gap between action taken by instrument of state and the proceedings before 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."

Justice Sundresh added that non-citizen persons of Indian origin who came before 1 January 1966 and had been residing in Assam without a serious break were deemed to be citizens of India. SG Mehta stated that this was because of an assurance given by then Prime Minister of Bangladesh in February 1972 that all Bangladeshi nationals who had taken shelter in India since 25 March 1971 were to be taken back. Based on the same, a circular was issued by the government of India in September 1972 stating that those who had arrived in India before 25 March 1971 were not to be sent back. 

The CJI referred to this as an “interesting understanding” between the two governments to prevent people from being stateless in India.

The SG asserted that the provision had outlived its utility and nobody alive would be able to take benefits of the same except progenies of those who came before 1971. He added that Section 6A was made by the Parliament based on considerations foreign policy and maintenance of international relations. Adding that the Parliament was empowered to make laws on citizenship, which was a matter of legislative policy he submitted that it was “very difficult, if not altogether impossible” for the court to judge the constitutional validity of the provision.

The bench asked the SG why Assam was "singled out" with no mirroring provisions for States like West Bengal which were also a border state. The CJI asked–

"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."

The SG, clarifying that his response represented his views and not necessarily the government's official stance, stated that Assam faced the problem and raised it at a higher level because of cultural differences between Bengali-speaking migrants and Assamese people. He highlighted that culturally, Bengalis and Bangladeshi were similar.  The CJI pressed further, questioning why Parliament believed that the problem of illegal immigration was peculiar to Assam. 

The SG responded by emphasizing that the business of laying down permanent laws on citizenship was left to Parliament. He argued that the contention was essentially an argument of underclassification, suggesting that instead of one, laws should have been made for all border states. However, he asserted that underclassification, in this case, may not be a ground to declare the existing law as ultra vires. He cited precedents where the court upheld geographical classifications based on historical reasons when reasonably justified.

On similar lines, the Attorney General for India R Venkatramani asserted that this was a state specific resolution for a given point of time. So if parliament at that point did not address some other larger question, it would not render the state specific resolution as defective or illegal. He also submitted that the use of the word "deemed" was only used to connote that those who fall under Articles 6,7 and much later under 11, shall also become citizens of India.

Demographic Changes Cannot Be Pinned To A Single Historic Event: Senior Advocate Kapil Sibal

In his submissions, Senior Advocate Kapil Sibal, appearing for Jamiat Ulema-i-Hind(which supports Section 6A), outlined three main contentions put forth by the petitioners: the impact of immigration on cultural rights of Assamese people, the violation of Article 14, and the freezing of Articles 5 and 6 in time. Sibal challenged these arguments, asserting that migration of populations to India had a deep historical context and could not be precisely mapped. He delved into the historical background of Assam, highlighting events such as the British conquest in 1824, the partition of Bengal in 1905, and the subsequent reversal in 1911. Sibal emphasized that these historical events, including the absorption of the Bengali population in Assam during Bengal's partition in 1905, were influenced by external factors such as British decisions.

Sibal contended that arguing on a constitutional point that demographic changes were impacting the culture of Assam was invalid. He asserted that migration was a fundamental right, emphasizing the historical context and the impossibility of attributing demographic changes to a single event. Sibal also pointed out that, as per constitutional law, the enforcement of rights was covered by Part III, while Article 29 was specifically about the preservation of rights. He challenged the notion that demographic changes could be a basis for claiming a violation of cultural rights under constitutional law, asserting that the burden was on the opposing side to demonstrate such a violation.

"When Pakistan was created, people would like to come naturally - Bengalis, Hindus- that's the point I'm making. Demographic change can never be basis of saying that my culture is impacted as a matter of constitutional law. Because Part III is enforcement of rights. Article 29 is preservation of rights Their argument is that culture is being infringed demographically. They have to show violation," he said.

However, the CJI asserted that while an argument about demographic change as affecting culture could never be made within the territory of India, the same would not be true for people coming from outside the territory of India. 

Sibal reiterated that the demographic changes had historical roots dating back to 1824, and it would be challenging for the court to pinpoint these changes only after 1947. He suggested that Assam's multicultural and multi-linguistic nature made it a diverse state, and addressing the issue of demographic changes based on historical reasons was a slippery slope. Sibal emphasized the need for the opposing side to demonstrate specific violations related to language, script, or other cultural aspects protected under Article 29. He stated that Article 29 pertained to the preservation of the rights of minorities and was triggered only when there was an actual violation.

Moving to Article 14, Sibal argued that if Section 6A was struck down, individuals may not be accepted by Bangladesh, leading to a situation where divisions were created in society. Sibal suggested that this transformed the issue from a political one to an "us versus them" dynamic, contrary to the constitutional principle of fraternity.

"You're creating divisions in society where your preamble calls for fraternity...The whole NRC exercise was that it may be wrong. It was monitored by this court but ultimately it was found out that the majority of the 19 lakhs were Hindus. 1600 crores was spent on that exercise", he said.

Court Can Only See The 'Constitutional Culture': Senior Advocate Indira Jaising

Senior Advocate Indira Jaising, appearing for the All Assam Minority Students Union(also supporting S.6A),  began her submissions by highlighting the 21st century was the era of refugees and migrants and emphasized that the Constitution of India was deeply influenced by the partition. She characterized Section 6A as a sui generis provision, denoting its special and distinct nature. Jaising pointed out that the proviso to Article 7 left the door open for migration, indicating that the provision does not freeze citizenship.

On petitioners arguments pertaining to a demographic invasion, she asserted that the Assamese language was adequately protected, remaining in the schedule of official languages of India and continuing as the official language of the state of Assam. Jaising contended that there was complete protection of language scripts and customs, suggesting that if customs and culture are synonymous, they are well protected under existing provisions.

Jaising then addressed the term "indigenous persons" used by the petitioners and cautioned against its use due to the lack of a legal definition in the Constitution. Instead, she suggested using the term "tribe" and raised the question of whether the culture of tribes was genuinely in danger. Jaising challenged the concept of defining culture under Article 29, stating that it was an expression notoriously vague.

The CJI joined the discussion, acknowledging the amorphous nature of the concept of culture. He illustrated that culture involves an interplay of various elements, including language, customs, social institutions, religion, practices, food, apparel, geographical conditions, and the relationship with nature. The CJI emphasized that culture was an aspect of identity and self-identification.

Continuing her arguments, Jaising asserted that judicially, the court could only accept constitutional culture and constitutional morality as the culture of a citizen, in addition to any other culture they may have. She emphasized the importance of recognizing and preserving constitutional culture, asserting that it cannot be endangered.

She highlighted that Section 6A was based on certain conditions - that the person must be of Indian origin(i.e if he, or either of his parents or any of grandparents was born in undivided India) and that he has been an ordinary resident of Assam since his entry. These conditions mean that Section 6A has nexus with the Indian origin of the person and his intention to reside in Assam. In view of these parameters, the provision can't be termed as manifestly arbitrary.

Jaising concluded by highlighting the complexity of defining who is Indian, who is not, and who is Assamese or not, emphasizing that migration could not be described as external aggression.

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

Supreme Court Seeks Data From Union Government On Illegal Migration To Assam & NE States Post-1971