Chief Justice of India D.Y. Chandrachud on Tuesday asked petitioners to show material that benefits given to cross-border migrants, who arrived in India between 1966 and 1971 just before the Bangladesh Liberation War, led to radical demographic change which impacted the Assamese cultural identity.
The Chief Justice is heading a Constitution Bench hearing a series of petitions challenging the constitutionality of Section 6A of the Citizenship Act, 1955.
Section 6A was a special provision inserted into the 1955 Act in furtherance of a Memorandum of Settlement called the ‘Assam Accord’ signed on August 15, 1985 by the Rajiv Gandhi government.
Under Section 6A, foreigners who had entered Assam before January 1, 1966, and been “ordinarily resident” in the State, would have all the rights and obligations of Indian citizens. Those who had entered the State between January 1, 1966 and March 25, 1971 would have the same rights and obligations except that they would not be able to vote for 10 years.
No evidence
“There is no material to indicate that the impact of granting certain benefits to people who came in between 1966 and 1971 was so great that the demographics or the cultural identity of the State was affected by the inflow in those five years,” Chief Justice Chandrachud told senior advocate Shyam Divan, appearing for the petitioners.
The Chief Justice said the infiltration across the border into Assam post Section 6A required an examination of the steps taken by the government. “We cannot adjudicate on the validity of Section 6A on the basis of what happened subsequently. According to you, there has been an increase in infiltration post the amendment. But will that have an impact on the validity of the amendment itself?” Chief Justice Chandrachud asked.
The Constitution Bench also made it clear that its ambit was limited to examining the validity of Section 6A and not the Assam National Register of Citizens (NRC). “The reference made to us was on Section 6A. So the ambit of the issue before us is Section 6A and not the NRC,” Chief Justice Chandrachud clarified.
In the hearing, Mr. Divan asked why Assam alone, among the border States, was singled out to implement Section 6A. He said the “rise in infiltration was a consequence or an effect of Section 6A”.
Destruction of identity
“Why just Assam? This way an illegal can just infiltrate into Assam and settle there as a citizen. My land, my property, my political and economic rights are taken away by heaping them on me, by destroying my cultural identity... Then 6A should have been applied to all States or at least in all border States,” he submitted.
The Chief Justice referred to the HS Brahma Committee report, saying it had called for the “complete implementation” of the Assam Accord to protect local land rights.
“The Accord had also called for strict border fencing, deportation of foreigners, deletion from electoral roll, establishment of more tribunals, to give teeth to the purpose of the law to detect illegals and their deportation…” the Chief Justice noted.
Chief Justice Chandrachud pointed out that migrants who entered India from 1966 to 1971 had no aspiration to citizenship. “They just came in,” the CJI said.
The Chief Justice said the influx from Bangladesh, then East Pakistan, into India was not looked at by the Parliament, while enacting Section 6A, as merely “illegal migration”.
‘Cementing illegality’
“The Parliament looked at it as something that was deeply interwoven in our own history of the conflict which led to the liberation of Bangladesh… There was a humanitarian aspect that the Parliament saw in the migration from Bangladesh at that time, considering the atrocities which were committed on the population in East Pakistan... India had intervened which led to war and the liberation of Bangladesh,” Chief Justice Chandrachud observed.
Mr. Divan said the conferring of citizenship on the migrant population in Assam amounted to “cementing an illegality”. Post the amendment in the 1955 Act, the influx had continued unabated. “Section 6A had a multiplier effect by recognising these people as citizens,” he argued.
The petitioners, including Assam Public Works and others, argued that the special provision was in violation of Article 6 of the Constitution which fixed the cut-off date for granting citizenship to immigrants at July 19, 1948.
On December 2014, the Supreme Court had framed 13 questions covering various issues raised against the constitutionality of Section 6A, including whether the provision diluted the “political rights of the citizens of the State of Assam”; whether it was a violation of the rights of the Assamese people to conserve their cultural rights; whether an influx of illegal migrants in India constitute ‘external aggression’ and ‘internal disturbance’, among others.
In 2015, a three-judge Bench of the court had referred the case to the Constitution Bench.
