In upholding the constitutional validity of Section 6 A of the Citizenship Act through a 4-1 verdict, the Supreme Court has answered a question that has long sparked passions, and even violence, in Assam: Who is a foreigner in this border state in India’s North-east? The issue stoked the Assam agitation in the 1970s and early 1980s.
The 1985 agreement between the Rajiv Gandhi government at the Centre and the All Assam Students’ Union tried to arrive at a resolution by setting a cut-off date for citizenship. Section 6 A of the Citizenship Act that was inserted in the statute books after the agreement allows foreign migrants of Indian origin, who came to Assam after January 1, 1966 but before March 25, 1971, to seek Indian citizenship. However, in a state where the scars of Partition are still raw, migration remains a fraught issue.
Section 6A was contested on the grounds that it violates constitutional provisions on citizenship and goes against the Right to Equality by setting a different yardstick for Assam compared to the rest of the country. The petitioners had also alleged that by allowing migration, the clause hurts the ability of Assam’s “indigenous communities to protect their culture” — and that it, therefore, violates Article 29 of the Constitution. In its over 400-page long verdict, the SC has engaged with all these arguments.
The verdict takes a liberal and expansive view of citizenship. CJI Chandrachud sets the tone by observing that “challenges regarding the constitutionality of a statute require the Court to take a flexible approach ”. Section 6 A, as he and three of his colleagues on the bench note, was the legislative corollary to the Assam Accord. The task before the lawmakers was to balance “the humanitarian needs of migrants of Indian origin and its impact on economic and cultural needs of Indian states”.
The SC has endorsed the cut-off date for meeting this imperative. It held the March 25, 1971 cut-off rational on two grounds. One, The Illegal Migrants (Determination by Tribunals) Act, 1983 sets this cut off. Moreover, the Pakistani Army launched Operation Search Light to curb the nationalist movement in East Pakistan on this day. “The migrants before the operation,” CJI Chandrachud says, “were considered to be migrants of Partition towards which India had a liberal policy”.
The petitioners argued that the Constitution “upholds national fraternity, not global fraternity”. In an important section of the verdict, Justice Surya Kant goes into Constitutional Assembly debates to arrive at a broader view of this principle. “In the Indian constitutional context, fraternity assumes an inclusive role, aligning with the broader goals of social justice,” he points out. He terms the petitioner’s view “restrictive” — “it allows them to choose their neighbour” — and says its runs “contrary to the ethos envisaged by the Constituent Assembly”.
The Court’s “dynamic” reading of citizenship that is sensitive to the imperatives of “equality and upliftment” is significant at a time when debates over setting the parameters of Indian nationalism continue to rage. The Court is hearing other petitions on the issue — including on the fate of people who migrated to Assam after 1971. Its expansive view of citizenship should resonate in the discussions of the future.
