NRC Case: Constitutionality of Section 6-A Citizenship Act still under the judicial lens

Bar & Bench September 10 2019
Water Pollution Act

Siddhartha Shankar Ray

In the background of the recent exercise on the National Register of Citizens (NRC) in Assam, one particular issue comes to mind. A Constitution Bench of the Supreme Court is yet to determine the constitutionality of Section 6-A of the Citizenship Act, 1955.

But first, a little history.

When the Government of India Act was promulgated in 1935, Assam was stated to be a Governor’s Province under Section 46(1). 

It was in this scenario that the Foreigners Act of 1946 was enacted, under which the burden of proving whether a person was a foreigner or not lay upon such person.

Further, at the commencement of the Constitution of India, Article 5 laid down that  every person wh ohas his domicile in the territory of India and–

  1. who was either born in the territory of India; or 
  2. either of whose parents were born in the territory of India; or 
  3. who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement 

shall be a citizen of India. 

As an exception, Article 6 (which deals with rights of citizenship of certain persons who have migrated to India from Pakistan) assigned19.07.1948 as the baseline for being citizens of India. 

In the meantime, the Immigrants (Expulsion from Assam) Act, 1950 was enacted to protect the indigenous inhabitants of Assam. The Statement of Objects and Reasons of this Act reads: 

“During the last few months a serious situation had arisen from the immigration of a very large number of East Bengal residents into Assam. Such large migration is disturbing the economy of the province, besides giving rise to a serious law and order problem. The bill seeks to confer necessary powers on the Central Government to deal with the situation.”

It is pertinent to note that during the census of 1951, a National Register of Citizens (NRC) was prepared under a directive of the Ministry of Home Affairs. The same contained village-wise information of each person.

However, it was between 1948 and 1971 that large-scale migrations from the erstwhile East Pakistan to Assam were witnessed. As is well known, West Pakistan commenced hostilities against East Pakistan on March 25, 1971, culminating in the war that dismembered the two parts of Pakistan, giving rise to a new nation, Bangladesh.

The Supreme Court’s Intervention

This chain of events prompted a Bench of the Supreme Court comprising former Chief Justice of India KG Balakrishnan and Justice P Sathasivam to intervene in 2009, in response to a petition filed by a Guwahati-based civil society group known as Assam Public Works. This group volunteered to undertake the Herculean exercise of updating the NRC.

Consequently, in 2014, the Division Bench of Justice Ranjan Gogoi (as he then was) and Justice RF Nariman approved the modalities for the NRC update. The same was arrived at by the state government after a stream of consultations with the All Assam Student’s Union (AASU) and the All India Minority Students Union (AAMSU).

Since its involvement, this venerable Bench has been observing the NRC process like a hawk in addition to passing orders from time to time. 

Latest Developments

On August 31 this year, a supplementary list of inclusions and exclusions was uploaded, thereby excluding over 19 lakh persons out of 3.3 crore applicants (in contrast to the draft list published last year which had excluded nearly 40 lakh persons). 

In view of this outcome, attention must be drawn towards the root of the matter and what lies ahead.

The origin of the NRC process lies in the 1985 Assam Accord entered into between the Rajeev Gandhi-led Union Government with the leaders of Assam. A part of para 5 of the Accord was given statutory recognition by Section 6-A of the Citizenship Act, 1955.

On the touchstone of Section 6-A, citizenship of persons was to be determined based on the criteria supplied hereunder:

  1. All those persons who came to Assam on or after January 1, 1966, but before March 25, 1971 from the specified territory [meaning, territories included in Bangladesh immediately before the commencement of the Citizenship Amendment Act, 1985], are residents of Assam, and shall register themselves under Section 18 of the Act.
  2. A person so registered shall have the same rights and obligations as a citizen of India (including the right to obtain a passport).
  3. Further, a person so registered shall be deemed to be a citizen of India for all purposes (emphasis supplied).

Thus, it becomes evident that Section 6-A did not merely grant refugee status to those who were illegal migrants from East Pakistan, but went on to grant them the benefit of Indian citizenship. All persons who had migrated to Assam before 1966 and before 25.03.1971 were to become citizens of India either immediately or after a period of ten years (once there has been a determination that they have in fact settled in India between 1966 and 1971).

Coming now to what lies ahead, the Supreme Court Division Bench vide its judgment dated December 17, 2014, framed thirteen substantial questions. Out of these, two questions are of particular interest:

“(i) Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution? Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”? Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?

(ii) Whether Section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits Citizens who have allegedly not lost their Citizenship of East Pakistan to become deemed Citizens of India, thereby conferring dual Citizenship to such persons?”

Following the framing of these substantial questions as to the interpretation of the Constitution, the case will now be considered by a Constitution Bench.

In view of the above, the author departs from the present Article by alluding to the fact that notwithstanding the current political perception (for instance, Assam will become an Islamic state if NRC is not fixed, as argued by ABVP), the ultimate task lies before the Constitution Bench to determine the constitutionality of Section 6-A, which in the author’s opinion shall ascertain the fate of the illegal migrants who have enjoyed dual citizenship in India without taking the oath of allegiance to the Indian Constitution. 

The author is an Advocate at the Supreme Court of India.

 

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