Assam Accord : Supreme Court To Decide Constitutionality Of Section 6A Of Citizenship Act As Preliminary Issue

A Constitution Bench of the Supreme Court, on Tuesday, framed the preliminary issue in the matter concerning the constitutional validity of Section 6A of the Citizenship Act inserted by way of an amendment in 1985 in furtherance of the Assam Accord. The bench noted that the issue - "Whether Section 6A of the Citizenship Act suffers from any constitutional infirmity?" covered all other issues that arose in the matter. The matter was listed before a bench comprising Chief Justice D.Y. Chandrachud and Justices M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha. 

At the outset, the Solicitor General of India submitted–

"We have categorised the matters into three categories. First category is matters pertaining to Section 6A of the Citizenship Act. Category 2 is NRC – the challenges to it. Third is foreigners tribunals. That is completely different. If your lordships may take up category 1, rest may be staggered and decided later."

Senior Advocate Kapil Sibal while apprising the bench of the fact that a compilation of all issues framed by all counsels had been submitted stated that the issue pertaining to Section 6A maybe taken up first. He added–

"What your lordships may do is formulate it on basis of issues and we'll argue."

This prompted the bench to frame the preliminary issue. CJI DY Chandrachud remarked–

"Whether Section 6A of the Citizenship Act suffers from any constitutional infirmity? That covers everything. We'll frame that primarily as the issue. That doesn't stop us from framing other issues later."

When multiple counsels tried to suggest other issues that may be added, CJI DY Chandrachud remarked–

"Many of the issues are shades of the same issue. We won't stop anyone from the bar from arguing on these- the 21 argument, the statutory argument. If all the counsels can sit together and distribute all issues so that there is no overlap- to save judicial time. So the petitioners will argue first, then the government will respond, and the rest can argue."

Ms. Diksha Rai(assisting Attorney General for India R Venkataramani), Mr. Manish Goswami (assisting Senior Advocate KN Choudhary) and Mr. Fuzail Ahmad Ayyubi (assisting Senior Advocate Kapil Sibal) were appointed as nodal counsels in the matter to prepare a common compilation of documents.

The pleas are now listed for 14th February 2023.

Background

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 this backdrop, a tripartite agreement was reached amongst the All Assam Students Union, 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 and have been detected as foreigners and must register themselves for Indian citizenship under Section 18 for citizenship. Such a person shall be deemed to be a citizen of India for all purposes as from the date of expiry of a period of ten years from the date on which he has been detected to be a foreigner. 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 in the said Bench, 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 v. Union of India & Ors. W.P. (C) No.562/2012

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