Assam Accord : Supreme Court Reserves Judgement On Pleas Challenging Constitutional Validity Of Section 6A Of Citizenship Act

A Constitution Bench of the Supreme Court reserved its judgement in the batch of petitions challenging Section 6A of the Citizenship Act 1955 today (12.12.2023). The bench comprising CJI DY Chandrachud along with Justices Surya Kant, MM Sundresh, JB Pardiwala, and Manoj Misra heard the matter for four days before reserving the judgement. Section 6A of the Citizenship Act 1955 allows foreign migrants of Indian origin, 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.

Today, the bench concluded the proceedings after hearing the arguments of the intervenors and the rejoinder submissions of the petitioners. During the proceedings, Solicitor General of India Tushar Mehta also provided the bench with details on illegal immigrants and those who had been granted citizenship in light of S. 6A of the Citizenship Act, 1955. He also provided details regarding the border fencing. Details regarding the same can be found here.

Indian Citizenship Not Ethno-Nationalist: Senior Advocate Sanjay Hegde

The arguments made by Senior Advocate Sanjay Hegde today emphasized the historical context of Indian citizenship, highlighting the fluidity in the identification of citizenship, especially in the context of the partition. Hegde stated that people entering through the Eastern border (through Bangladesh) were allowed to do so as a substantial number of Hindus were yet to come into the territory of India. He said–

"We were a nation that had suffered a partition. There was a question as to who was an Indian and who wasn't. Therefore, we defined only at commencement... situation also had to take into account migration caused by partition. Those who had gone from India needed a permit to come back and resettle. That permission was very difficult to get. This applied largely to the western border. On the Eastern Border, Mr Iyengar makes it clear that permit system isn't to apply on eastern border. And for good reason. There was a substantial number of Hindus who still remained in erstwhile East Pakistan who were yet to come over. Among the Hindus that came was the first law minister of Pakistan Mr Jogender Nath Mandal."

Hegde emphasized that Indian citizenship was not ethno-nationalist and was not based on factors such as language, religion, or culture. He urged the court to avoid making statements that could unintentionally be judgmental in sensitive areas, particularly in the North East, and mentioned the potential consequences of seemingly innocuous statements on other cases. He stated that–

"While on the western border, it was clearly drawn, on the eastern border, it was kept fluid. Indian citizenship is not ethno-nationalist. It's not based on language, religion, culture. There is no superior or inferior citizenship based on ancestry of any time."

He gave an example of a "seemingly innocuous statement" made in a tax law case which ended up being deleted due to its consequences in Sikkim. He added–

"I say this from some experience, particularly from when I went to Shaheen Bagh- people resent greatly when their Indian-ness is questioned. We are all Indians. We may have come from different boats but we're in the same ship."

Petitioners Seeking To Strip Away Rights Accrued To Others: Senior Advocate CU Singh

Senior Advocate CU Singh argued that the petitioners were not merely seeking their own rights but were attempting to strip away the rights accrued to others over several decades. He contended that Section 6A, which allowed the determination of foreigners as per the Assam Accord, did not violate Article 14 of the Constitution. Singh suggested that granting citizenship to one class of people did not automatically constitute a violation, and the denial of citizenship to another class could not be questioned by someone else. He said–

"This is not a case where the petitioners were merely seeking assertion of some right of their own. The petitioners are seeking a right which would strip away other people the rights accrued to them over 27-30 years. Today it is 40 years...Section 6A doesn't violate Article 14 but is rather a step forward to legalise the determination of foreigners as per the Assam Accord...Merely because you're granting citizenship to one class of people, doesn't mean there is a violation. Violation maybe claimed by another class who is denied citizenship. But can someone else say why are you giving it to him?"

Advocate Shadan Farasat, representing the Social Justice Forum, acknowledging the importance of the right to culture argued that it should not be used to deny someone citizenship. He raised concerns about the potential shift from civic nationalism to cultural nationalism when culture is elevated to the extent of denying citizenship. Farasat also referred to the situation in Malaysia, where citizenship was available to everyone, but affirmative actions are taken for the socio-economically backward indigenous Malay people. He said–

"The right to culture they have asserted cannot be extended to deny someone citizenship. The citizenship regime under Article 14 is that of a civic nationalism. The minute we elevate culture to the extent of denying someone else citizenship, we have transgressed from the area of civic nationalism to cultural nationalism."

Additionally, Farasat pointed out that the citizenship regime should be based on non-discrimination, citing Article 325, which prohibited discrimination. He added that Article 326, which defines the electorate, notes that the electoral roll undergoes continuous changes, indicating that the electorate is not static. He said–

"Article 326 defines electorate. At intervals the electoral roll is changed. That by itself envisages a continuously changing electorate."

No Temporal Limit To Operation Of Section 6A: Petitioners In Rejoinder Submissions

In his rejoinder submission, Senior Advocate Shyam Divan asserted that there was no temporal limit to the operation of Section 6A, meaning that individuals could still apply for citizenship under Section 6A today. 

Divan argued that there was no machinery or mechanism for evaluating, assessing, or determining the grant of citizenship under Section 6A(2). This, according to him, was a fatal flaw in the scheme of Section 6A. He stated–

"There is no machinery for the purposes of evaluating, assessing, determining grant of citizenship under 6A(2). Notice, the legislature describes four criteria. This is a fatal flaw to the scheme of 6A."

He contended that the provision is void because it lacked a rational and reasonable basis for distributing citizenship. He pointed out that the legislation prescribes criteria without providing a mechanism to determine those criteria effectively, leading to a situation where, in practical terms, there are no criteria.

"Anyone over the age of 57 years in Assam can claim citizenship without the requirement of establishing ancestry. That's the net effect," he submitted.

At this juncture, the CJI discussed the deeming consequence provided by the constitution and the possibility of adjudicating the absence of conditions requisite for attaining that consequence in individual cases. He said–

"When the law provides for a deeming consequence, that consequence operates without adjudicating. When the consequence is called into question in an individual case on the ground that condition requisite for attaining that consequence are absent, the fact that those four conditions were not satisfied and therefore the person is not entitled to benefit of deeming consequence is always up for adjudication. Suppose a person prior to '66 applies for passport. The passport officer says I can't give you a passport, you're not an Indian citizen. At that stage, if he says no I'm an Indian citizen by virtue of 6A(2), certainly the validity of his status can then be decided."

However, Divan reiterated that while criteria was necessary for grant of citizenship, there was no way to confirm if a person met with the criteria. To this, the CJI said–

"Deeming fiction is provided under constitution itself. The constitution itself provides for a deeming grant of citizenship in Article 6. There is no machinery in Article 6."

Divan responded by stating that Article 6 was a "starting provision" and hence was very different as someone had to be the citizen of the country.

Divan asserted that singling out Assam in this way had significant demographic and future impacts, necessitating heightened scrutiny. He challenged the argument of potential statelessness, stating that the same regime that applies across the country can be applied to Assam without resulting in statelessness.

He added that a proportionate response for immigrants could be as minimum international humanitarian law standards but the same would be short of citizenship. 

Senior Advocate KN Choudhury and Senior Advocate Vijay Hansaria also made rejoinder submissions in the matter.   

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