Assam Accord : Supreme Court CB To Set Hearing Schedule In Challenge Against Section 6A Citizenship Act On 1st November

The Supreme Court, on Wednesday,posted the hearing of the pleas challenging the constitutional validity of Section 6A of the Citizenship Act inserted by way of an amendment in 1985 in furtherance of the Assam Accord on 1st November, 2022.

The bench will set out directions for scheduling the hearing dates on November 1.

Senior Advocate, Ms. Indira Jaising had apprised the Constitution Bench comprising Justices D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha that one of the ten questions of law referred to the Constitutional Bench was whether the delay in the hearing of the matter would affect the vested interest. She suggested that the same can be decided as a preliminary issue.

"One question is whether delay in hearing would affect vested interest. What is in issue is the validity of Section 6A, whether it would relate back to affect vested interest. If it can be taken as a preliminary issue."

Solicitor General, Mr. Tushar Mehta was of the opinion that in order to decide the effect of delay as a preliminary issue the Bench might have to go into the larger issues pertaining to Citizenship indicated in the reference order.

Justice Chandrachud stated that it would consider the same on the next occasion when the Bench is acquainted with the documents filed in the matter.

The aftermath of the Bangladesh liberation war, which eventually led to the independence of Bangladesh from Pakistan, witnessed a massive influx of migrants to India. The migration from East Pakistan had started prior to the independence of Bangladesh, when West Pakistan had commenced with hostilities. After the culmination of the said war, on 19.03.1972, Bangladesh and India entered into a treaty for friendship, cooperation and peace, vouching to refrain from causing aggression against each other and to prohibit use of each of their territories to cause military damage to or threaten the security of the other.

In Assam there was an abrupt increase in the number of registered voters in the list for assembly elections; from 6.5 million in 1972 to 8.7 million in 1979, which led to an anti-immigration movement; the 'Assam Movement'. The movement led by the All Assam Students' Union (AASU) and All Assam Gana Sangram Parishad (AAGSP) sought identification, disenfranchisement and expulsion of illegal immigrants from Assam.

In this backdrop, a tripartite agreement was reached amongst the AASU, Government of India and Government of Assam and, on 15.08.1985; the Assam Accord was signed. For detection of foreigners 01.01.1996 was set out as the cut-off date. Consequently, people who had migrated to Assam prior to the said date were to be regularised. Those who came to Assam after 01.01.1966 (inclusive) and upto 24.03.1971 were to be detected as per the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964. They would have all rights, but the right to vote for a term of ten years. Accordingly, Section 6A was inserted to the Citizenship to reinforce these cut-off dates for granting citizenship in the State of Assam.

Assam Sanmilita Mahasangha, a Guwahati based civil society organisation had challenged Section 6A way back in 2012. It argued that Section 6A is discriminatory, arbitrary and illegal so far as it provides for different cut-off dates for regularising illegal migrant who entered Assam and the rest of India. It sought the Court's indulgence in directing the concerned authority to update the National Register of Citizens (NCR) with respect to the State of Assam based on the details incorporated in the NRC prepared in 1951 as opposed to updating the same by taking account of the electoral rolls prior to 24.03.1971. Eventually, other organisations from Assam filed petitions challenging the validity of Section 6A. When the matter was heard by the Apex Court in 2014, a two-judge Bench led by Justice Rohinton Nariman referred the matter to a Constitution Bench, which was eventually constituted on 19.04.2017 and comprised Justices Madan B. Lokur, R.K. Agarawal, Prafulla Chandra Pant, D.Y. Chandrachud and Ashok Bhushan. Since all the judges, except Justice D.Y. Chandrachud, have retired since, CJI Lalit has now constituted the present Constitution Bench.

In this matter, the issue pending is whether the expression "every person born in India" would apply only to persons born to Indian citizens and whether the expression "either of whose parents is a citizen of India at the time of his birth" in S.3(1)(b) of the Citizenship Act, 1955 would apply to only a person who is born to parents one of whom is a citizen and the other a foreigner, provided he or she has entered India lawfully and his/her stay in India is not in contravention of applicable Indian laws.

Case Title: Assam Sanmilita Mahasangha & Ors. Vs. Union of India & Ors. X with 16 connected matters - regarding Citizenship Act

Case No.: W.P. (C) No.562/2012