Supreme Court Posts Pleas Challenging Section 6A Citizenship Act For Directions On 10th January, 2023

A Constitution Bench of the Supreme Court, on Tuesday, posted 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, for directions, on 10th January, 2023. The 5-Judge Bench comprised Chief Justice D.Y. Chandrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli and Justice P.S. Narasimha.

At the outset, Senior Advocate Kapil Sibal apprised the bench that the parties had decided to sit together and identify the issues which were to be segregated and heard in the case. Accordingly, the bench noted–

"It has been agreed between AG and the SG on one hand and Sr. Adv. Kapil Sibal, Sr. Adv. Dave and Sr. Adv. Indira Jaising for petitioners that the counsels would segregate the cases which fall for decision before this court into distinct categories and the order in which the arguments are to be made."

The Solicitor General of India Tushar Mehta requested the bench to direct the registry to give a soft copy of all petitions to all the counsels. The request was granted and the registry was directed to give a complete set to all counsels.

Senior Advocate Ajay Tewari, on behalf of the State of Arunachal Pradesh sought impleadment in the matter to argue on the issue of the citizenship of Chakma refugees. However, CJI Chandrachud stated that the same could be mentioned after the matters currently under consideration were heard. He said–

"Let us hear the main matter first. When matter opens, you can submit and we will hear you."

The matter is now listed for directions on 10th January 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 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, one of the issues 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]