Assam Accord : Supreme Court CB Posted The Challenge Against Section 6A Citizenship Act For Directions On 13th December, 2022

Senior Advocate, Mr. Kapil Sibal apprised the 5-Judge Bench comprising Justices D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha that several documents, including 'very old' documents, relevant to the present proceedings are with the Supreme Court Registry. He requested the Bench to pass an order to the Registry to permit them to access the same. Accordingly, the Bench passed the following direction -

"On the request of the L.d Counsel, Registry is directed to furnish inspection of all the records and documents pertaining to this batch of cases to the advocates on record on behalf of the contesting parties on an appointed day."

The Bench also asked the Counsel representing the parties concerned to file joint compilation of written submissions, precedents, and any other documentary material along with a common index. It asked two junior advocates from both sides to take up the task of compilation of the documents in soft copies and distribution of the same to all the concerned Counsels.

It further suggested that the Counsels representing the parties concerned meet before the next date of hearing and chalk out salient issues that need to be considered by the Constitution Bench.

A Counsel apprised the Bench that in an order dated 13.08.2019 passed by the Apex Court, there was a categorical observation that the Nation Register of Citizens would be updated, subject to the writ petition pending before it. In view of the same he sought a direction to the effect that no rejections from the NRC be issued in the interim.

The Solicitor General of India, Mr. Tushar Mehta interjected stating, "This (proceeding) is not on NRC issue."

The Bench also noted that without hearing the parties, no orders can be passed -

"We cannot do it like this. We would like to see the papers, have a little bit of argument and then issue orders."

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 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 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]