Section 6A of the Citizenship Act, 1955, was introduced partly to remedy the atrocities committed on the population of East Bengal after the 1971 liberation war of Bangladesh, the Supreme Court observed on Tuesday.
As a result, the act, which is regarding granting of Indian citizenship to immigrants covered by the Assam accord, cannot be compared to an amnesty scheme for illegal immigrants in general, the court noted in its reply to an argument that the population of immigrants had surged due to the said provision.
The petitions challenging the constitutional validity of Section 6A of the Citizenship Act is being heard by a constitution bench of Chief Justice of India (CJI) DY Chandrachud, along with Justices Surya Kant, MM Sundresh, JB Pardiwala, and Manoj Misra.
According to Section 6A of the Citizenship Act, individuals who came to India between January 1, 1966, and March 25, 1971, and have been residing in Assam, will have the opportunity to officially become citizens by registering themselves.
"We are looking at something which is frozen in time. We cannot adjudge the validity of the Section (based) on what happened after the (Assam) Accord," the CJI said.
We are looking at something that remains constant over time. According to the Chief Justice of India, we cannot assess the legality of the Section based on events that took place after the Assam Accord.
Senior lawyer Shyam Divan, representing the All Assam Ahom Association and other petitioners, contended that Section 6A would remain inherently flawed on its own.
"We have shown the amendment does not stand on its own legs. Look at the influx. And today, as the result of not remedying the law, it has been given a complete go by and this has been used as a shield. I say the provision is only bad completely."
The CJI answered by highlighting that there were past events that led to the inclusion of Section 6A.
"If parliament were to merely grant amnesty to a group of illegal immigrants it would have been different situation. Section 6A was enacted a time when there was a different history, and India had an important role to play in Bangladesh liberation war, and we were a part of the war as much as Bangladesh. This was for the atrocities which were being committed on the population of East Bengal then," he explained.
The initial hearing for a series of petitions challenging the legality of Section 6A of the Citizenship Act began on Tuesday. The outcome of this case will have a significant effect on the National Register of Citizens (NRC) list.
During the hearing today, Divan stated that Section 6A originated from the Assam Accord, which was a written agreement signed in 1985 between different student groups protesting and the Central government led by Rajiv Gandhi. This agreement marked the end of a peaceful six-year movement against the alleged entry of illegal immigrants from Bangladesh into Assam.
Divan argued that Section 6A goes against the fundamental principles of the Indian Constitution and the ideals of secularism, unity, and harmony stated in the Preamble. He claimed that the inclusion resulted in undermining the cultural rights of states located at the borders.
"It also violates Articles 14 and 19 of the Constitution. Also, these are political rights with respect to the citizen and there is destruction and undermining of these rights as well. We also assail this on the legislative competence aspect. Cultural rights of the border States cannot be subverted completely. If it do so, then all States will have to bear burden of this as well," he said.
Divan requested the Court to instruct the Union government to create a policy under the supervision of the court. This policy would be aimed at resolving and rehabilitating all individuals who migrated to Assam from various States and Union Territories.
The Court, on the other hand, noted that Section 6A specifically dealt with the Assam Accord. The panel also raised doubts about whether there was any evidence to demonstrate that this provision had caused a permanent change in the population makeup of the north-eastern State.
"To test your argument, there is no material before us to show that population who came from 1966 to 1971 was so much that it had an irreversible impact on the demographics. For the quantum of illegal immigration, you have to show that Assam was at par with other border States. We have always allowed an under inclusive legislation by the Parliament. Assam has a problem of infiltration but here we are on the Section 6A ... Agitation was to curb the infiltration and this was a political compromise," the CJI observed.
Divan, on the other hand, contended that Section 6A was unjust and cannot be upheld. The experienced lawyer asserted that there was a significant political consequence at stake.
"Theirs' (settlers who entered before 1971 and before the Assam Accord) is a whole set of rights and entitlements all the way upto citizenship. Otherwise my land is going to a great extent and the political impact is going to be enormous. Registration of birth was significantly higher among them, there are a likelihood of range of responses from the State. We are saying whether this statutory response can stand constitutional scrutiny or not. Look at the lawful impact on the citizens of the State," he argued.
Divan explained that within the Indian Constitution, the concept of fraternity refers to the sense of brotherhood among Indian citizens.
"The fraternity that the Constitution speaks of is something between the citizens and not something which is of a global nature! This is the preambular reading," he asserted.
In the ongoing case, Solicitor General Tushar Mehta, representing the Central government, stated today that the NRC was not a matter of dispute.
In response to a query from the panel, he also stated that approximately 5,45,000 individuals were aided by the provision, according to a Member of Parliament.
In response to another question from the Chief Justice of India (CJI) about whether anyone could still benefit from Section 6A after 2013, the Solicitor General (SG) answered in the negative. The bench then requested an official response regarding this matter, including the number of foreigners who have been registered as citizens since then.
The hearing will again take place tomorrow.
