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

A Constitution Bench of the Supreme Court on Tuesday (December 5) commenced the hearing of a batch of petitions challenging Section 6A of the Citizenship Act 1955, the statutory provision giving effect to the Assam Accord.

The provision, inter alia, 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. 

The bench comprising CJI DY Chandrachud along with Justices Surya Kant, MM Sundresh, JB Pardiwala, and Manoj Misra heard the arguments raised by Senior Advocate Shyam Divan for petitioners.

Senior Advocate Shyam Divan commenced arguments on behalf of the petitioners today. 

Section 6A Interwoven In Indian History: Supreme Court

During the proceedings, the CJI questioned whether the specific cutoff date of 1971 in the amendment to the Citizenship Act had a significant impact. He posited a hypothetical scenario where, instead of freezing immigration at 1971, the amendment might have encouraged illegal immigration by allowing citizenship after ten years of entry. The CJI argued that the actual amendment froze the immigration at 1971, presenting it as a one-time measure. However, Divan countered this by stating that, despite the 1971 cutoff, the influx of immigrants continued due to a lack of law enforcement. He expressed concern about the impact on cultural rights, land, and economic rights of indigenous people in Assam. Divan characterized the situation as a "demographic invasion" and questioned the need for a special regime for Assam, suggesting that other border states faced similar challenges but only Assam had to accept the immigrants. He added– "The moment you have a situation where you're recognising a set of people and conferring citizenship on them automatically - what happens to next generation? You're cementing something illegal."

While the CJI acknowledged the ongoing influx, he highlighted the historical context of the amendment. He mentioned that India had a vital role in the liberation of Bangladesh and the humanitarian aspect of the immigration had to be considered. He said–

"One thing you have to bear in mind is that if the Parliament were to merely grant amnesty to a group of illegal immigrants that would be a different situation. But we can't deny that 6A was enacted at a point which is deeply connected to our history. India had a very vital role in the liberation of Bangladesh. We were part of the war as much as Bangladesh was. Parliament seems to have proceeded on the basis that the immigration which took place cannot be regraded purely as illegal but it was something humanitarian. It was humanitarian on the aspect of the atrocities committed on the population of the then East Pakistan which is why India intervened. This was not just looked at by Parliament as illegal immigration. It is interwoven in our history."

Inputs From Committees May Not Reflect Accurate Data: CJI 

Senior Advocate Divan opened his arguments by taking the bench through the judgement in Assam Sanmilita Mahasangha & Ors v Union Of India & Ors, 2014 (the reference judgment). Attempting to highlight the narrative in terms of which the sequence leading to the Assam Accord was built, Divan stated that the Assam Accord came into being owing to the potential influence of international Islamic fundamentalism and the shift in Bangladesh's stance from secularism to becoming an Islamic State. In this context, Divan referred to the report framed by the former LG of Assam LK Sinha, which emphasized concerns about the unabated influx of illegal immigrants from Bangladesh and its potential consequences for the indigenous Assamese population. He added that a similar conclusion was also reached by the Brahma committee report and the 175th Law Commission Report. Referring to the reports, he said–

"Bangladesh census records indicate a reduction of 39 lakh Hindus between 1971-1981 and another 36 lakh between 1981-1989...Muslim population of Assam has shown a rise of 77.42% in 1991 from what it was in 1971. Hindu population has risen by nearly 41.89% in this period."

However, the CJI raised apprehensions about the accuracy of the statistics presented. He said–

"The caveat we must have is that these are inputs to the committee. I'm not sure if they are authenticate figures, whether they're accepted by the government...figures of government of India are census we can safely go by. But something which is an input of the committee - for us to proceed as a constitutional court...someone may say that these figures may not be right. Accuracy we don't know. It may convey a broad trend but specific figures I'm not sure if they can be relied on."

To this, the senior counsel stated that the court could accept the figures to showcase a trend but it was "an important trend". He asserted that the figures showed that serious threats to the land rights and to the very identity of indigenous people of Assam came from unabated influx from Bangladesh. He added– "The indigenous people are bound to become landless people and become foreigners in their own homes. The relatively lower population density of Assam prior to 1971 compared to India propped up...the higher density of Assam population can be attributed to higher growth of Muslim population." He added that what was right now causing a dilution of identity and cultural rights of indigenous people would ultimately translate into political dilution as well.

Section 6A In Violation Of Constitution: Senior Advocate Shyam Divan

Providing an overview of his submissions, the senior counsel for petitioners divided his arguments under five heads–

1. Section 6A violates the essential fabric of the Constitution as provided under Preamble, namely, fraternity, citizenship, unity, and integrity of India. 

2. Section 6A violates fundamental rights as provided under Articles 14, 21, and 29.

3. Section 6A violates political rights of citizens as provided under Articles 325 and 326. 

4. The provision is outside the ambit of legislative competence and it is contrary to the "cut off line" as provided under the Constitution.

5. The provision undermines the overarching principles of democracy, federalism, and rule of law which are a part of the basic structure of the Indian Constitution. 

Accordingly, the following prayers arose from the petition–

1. Declare that Section 6A is unconstitutional for being violative of Article 14, 21, and 29;

2. Declare Rule 4A of the 2003 Rules as well as the notification dated 5 December 2013 as ultra vires of Section 6A;

3. In the alternative, issue a writ of mandamus or any other writ to order/direct the Union of India to frame a policy in consultation with States and Union Territories (UTs) for settlement and rehabilitation of immigrants who came to Assam after 6 January 1951 across all States and UTs of India proportionally;

4. Direct the Union to complete fencing of the border and take steps for the process of identification, detection, and deportation of foreigners from the State of Assam;

5. Direct the Union to take steps to remove encroachers from protected tribal lands created under Assam Lands and Revenue Regulations.

Burden Is On Petitioners To Show That Infiltration In Assam Between 1966-71 Was Comparable To Other States: Supreme Court

As the proceedings carried forward, the CJI questioned the validity of the challenge to Section 6A of the Citizenship Act, stating that the impact of Section 6A needed to be tested in terms of its constitutional validity and not whether the enforcement of law against illegal immigration was proper. He questioned whether there was any material to indicate that the demographic and cultural identity of Assam was significantly affected by the benefits granted to citizens who came in between 1966 and 1971. He said–

"Insofar as 6A is concerned - it is not a question of law enforcement. 6A we are testing pure validity. So is there any material to indicate that the impact between '66 and '71 was directly impacted by Section 6A?...The Brahma Committee in fact says that please implement the Assam Accord completely. The committee didn't say that go behind that part of the Assam Accord which conferred citizenship on that group of people that came between '66 and '71. They're saying implement provisions for detection of foreigners, deportation, deletion from electoral rolls, establishment of more tribunals- giving teeth to the purpose of the law to detect illegal infiltration from any other country and deportation of persons."

Senior Advocate Divan, in response, asserted that the Assam Accord was a political settlement but argued that political settlements do not grant immunity to statutes, and the statute must adhere to the constitutional test. He raised the question of why Assam should suffer under this provision when other border states don't have similar provisions.

The CJI countered this by suggesting that the burden was on the challenging party (petitioners) to show that the extent of infiltration between 1966-71 in Assam was comparable to other states. Divan, however, argued that it's not for petitioners to show this, emphasizing that singling out Assam and making a special provision in the State affected cultural rights and identity. He said–

"It's not for me to show... You're singling out one unit from the entire federation. And you're making a special provision there which are destroying my cultural rights and my identity by heaping me and protecting people there notionally."

However, the CJI reiterated that the burden of proof initially lied on the challenging party because they were contesting the constitutional validity of the law. The CJI said–

"When we begin hearing any petition on constitutional validity, we begin with a presumption of constitutionality. We also give parliament a latitude to recognise degrees of evil. Parliament can identify the degrees of the problems. Parliament doesn't have to legislate with respect to everything in order to legislate with respect to something."

Issue seems Of Enforcement Of Law Not Constitutional Validity: Supreme Court

In his arguments Senior Advocate Divan contended that the state must provide a strong justification for enacting such a law, particularly if it had an oppressive impact on certain communities, affecting their culture, economy, politics, and society. Divan suggested that Section 6A encouraged a destructive impact on the constitutional mandate of fraternity among citizens. He said–

"We are not dealing with some taxing statute. We are dealing with citizenship, political rights, issues of tremendous importance not only for current generation but the future generations as well...It's not enough to say that I had a political settlement, an Assam Accord and so I made a law. Law has to be even handed...The constitutional mandate in preamble is about fraternity- fraternity amongst citizens. That fraternity amongst citizens is sought to be destroyed by a statute which destroys my community."

The CJI responded by seeking clarification on the specific impact of Section 6A on the demographic and cultural aspects. The CJI noted the need for data to evaluate the law's impact. The CJI reiterated the historical context of the Assam Accord, which aimed to address concerns about illegal infiltration, with a compromise that those who arrived before 1971 would be left alone. 

Divan contended that the lack of action post-1971, as highlighted in the petition, was related to the constitutional validity of Section 6A. He argued that there was no justification for the provision, and the effects were disastrous.

The CJI suggested that the petition might have prompted the court to pass orders for enforcing the law if not for the reference that preempted such actions. The CJI said–

"Your petition highlights a very significant problem that post '71 nothing has been done by successive governments to curb the infiltration. But that's not an issue of constitutional validity. That's on the enforcement of law."

The bench then examined demographic data, noting the fluctuations in percentages over time, with a significant increase from 1991 to 2001, suggesting that this period may have seen a critical change in demographics. The CJI said–

"1951- see the Bengali population is 21.2, dips to 18.5 in 1961. Then in 1971 increases to 19.7 and then in 1991 it becomes 21.7% and 2001 - 27.5%. It must be that that is the critical period where the demographic really changed. So the problem which you're referring to seems to have occurred from 1991-2001."

Senior Advocate Divan responded by expressing concern about the multiplier effect that occurs when individuals granted citizenship have children. He pointed out that while there may be historical reasons for certain rights and entitlements, conferring citizenship had far-reaching consequences, including economic, cultural, and political impacts. Divan argued that the statute's framing is problematic, as it confers citizenship to individuals based on historical facts, leading to significant downstream effects. He said–

"If you're giving legitimacy or citizenship to someone who has entered in a particular time...it is reasonable to expect that those people will also have children and you will have a multiplier effect in subsequent decades. Therefore, you're allowing someone in but the multiplier impact may take place subsequently."

Divan also highlighted the disparity in treatment between someone entering from Assam and someone entering from another border state, emphasizing the enormous impacts on citizens living in Assam. He used the example of two individuals from the same village—one crossing the Assam border and the other crossing the West Bengal border—where the former was conferred citizenship, leading to adverse effects on the natives in terms of land, economics, politics, and culture, while the latter was not.

Case Title:  In Re: Section 6A Citizenship Act 1955