The Supreme Court did the right thing in holding Section 6A of the Citizenship Act, 1955, constitutionally valid. In doing so, it has also continued an unhappy status quo. This is not a contradiction but a reflection of the complicated history of Section 6A and what the petitioners challenging it were hoping to achieve.
Concern over demographic change in Assam has a long history. Even as the Constitution was being debated and finalised, representations were received from Assam asking that citizenship in Assam be limited to Assamese speakers only and not migrant Bengali speakers. Though these concerns reduced a bit due to a hard border existing between India and (then) East Pakistan, it flared up in a violent uprising in the 1970s and 1980s on the perception of increasing numbers of illegal migrants entering Assam from what had become Bangladesh.
As part of the Assam Accord and in an effort to bring peace to the state, Section 6A was introduced to create an exclusive citizenship regime for Assam. It granted citizenship to everyone who became a resident of Assam between 1950 and 1966. It allowed a pathway to citizenship for those who had come into the country illegally between 1966 and 1971.
Only those who came into Assam illegally after March 25, 1971, would be considered illegal immigrants and therefore not eligible to apply for citizenship. Section 6A was not a stand-alone provision — it was supposed to be part of the legal framework which allowed the government to identify and deport illegal migrants from Assam.
Decades after Section 6A was introduced into law, organisations from Assam wanted to have it struck down, arguing that it treated Assam differently from the rest of India by legalising illegal immigrants between 1950 to 1971 and that the cut-off date for getting citizenship should be the same across the country. Among the challenges to the provisions of Section 6A, two novel arguments were made — one that Section 6A violated the cultural and linguistic rights of the people of Assam (guaranteed under Article 29) by allowing non-Assamese to settle and gain citizenship and two, that Section 6A had become unconstitutional due to non-implementation over a period of time.
By a majority of 4-1, the Supreme Court dismissed the challenges and upheld the constitutional validity of Section 6A. The majority judgments delivered by Chief Justice of India DY Chandrachud and Justice Surya Kant reject all the arguments raised against Section 6A. The minority opinion of Justice JB Pardiwala accepts the second argument and holds Section 6A unconstitutional, but only from the date of the judgment. His opinion, however, does not disturb the citizenship of those who have already applied for or received the benefit under Section 6A.
In upholding Section 6A, the judges in the majority are keenly aware that Section 6A is woven into the larger Assam Accord and attempting to undo one thread (even assuming the arguments of the petitioners are valid) would be a judicial unravelling of what is essentially a political settlement. The Court acknowledges that Indian federalism is sufficiently flexible to allow for the Union to have different relationships with different states, keeping in mind the unique needs and history of each.
The court is also aware that striking down Section 6A in its entirety would render a large number of people in Assam stateless, and though it does not explicitly say so, this is clearly a consideration that has weighed on its mind. Nonetheless, even while upholding Section 6A, the Supreme Court seems to want to get itself involved in the minutiae of identifying illegal immigrants and border fencing. We have been down this path before.
The court involved itself deeply in the National Register of Citizens exercise in Assam, only to create a new set of problems.
The court-monitored NRC exercise which was supposed to identify all those who were illegal immigrants (those who could not trace their ancestry to someone who was a citizen before March 25, 1971) has identified 19 lakh residents (or 5.77 per cent of Assam’s population) as potential non-citizens.
Contrary to popular perceptions, these include Hindus, Muslims, Assamese speakers, Bengali speakers, tribal peoples and many others. A large number of those excluded are married women who could not produce documents either because they didn’t have them or because such documents were lost in floods and other catastrophes.
Contrary to what the Chief Minister of Assam said, even the Hindus among those left out will not be able to get the benefit of applying for citizenship after the Citizenship Amendment Act, 2019. This is because they will not be able to show they came from Bangladesh before the cut-off date prescribed in that amendment since they don’t have any documentary proof at all. It is likely that most people left out of the NRC were actually born in India and there is no possibility of them being deported en masse to Bangladesh or any country.
Leaving such a large number of people and their descendants stateless in perpetuity is not feasible or desirable. The judiciary cannot offer a way forward on this and it is once again for political leaders to step up to offer Assam a new accord — one that assuages cultural and linguistic concerns in line with the constitutional value of fraternity.
The writer is a co-founder of the Vidhi Centre for Legal Policy. Views are personal.
