With a 4-1 decision, the Supreme Court (SC) answered an issue that has long fuelled passions, and sometimes threats, in Assam: Who is a foreigner in this border state in India’s northeast? The problem fuelled the Assam movement during the 1970s and early 1980s. It was a clause included to give effect to a key aspect of the Assam Accord, and the SC of India has helped sustain the existing legal structure for assessing citizenship and identifying foreigners in Assam. The All Assam Students’ Union (AASU), All Assam Gana Sangram Parishad, and the Rajiv Gandhi-led Central government signed the Assam Accord in 1985, following a six-year violent anti-foreigner struggle. The accord stipulated, among other things, that the names of all foreigners who arrived in Assam on or after March 25, 1971, would be detected and removed from electoral records, with deportation proceedings initiated.
ALSO READ: Opinion | Urban Tree Cover: Is Guwahati Losing Its Vintage Beauty?
The SC’s decision on October 17, 2024, regarding Section 6A of the Citizenship Act—which was added to the Act as a unique provision to address the citizenship of those covered by the Accord—was hailed by political parties of all sorts. The ruling was hailed by the AASU as an Assamese movement triumph.
In their petitions, NGOs such as Assam Public Works and the Assam Sanmilita Mahasangha criticised Section 6A for the massive influx of illegal immigration, which was not only causing demographic shifts but also placing an extreme burden on the State’s economic and developmental objectives. According to the NGOs, the clause jeopardises the Assamese people’s ability to defend and preserve their political, linguistic, and cultural rights. They asked that Section 6A be ruled unlawful, arbitrary, and discriminatory by the highest court.
The Constitution Bench, chaired by Chief Justice of India (CJI) D.Y. Chandrachud, affirmed the March 25, 1971 entry date for Assam and granted citizenship as correct. The Court’s “dynamic” reading of citizenship, which is attentive to the imperatives of “equality and upliftment” is relevant in light of ongoing discussions over the scope of Indian nationalism. Other petitions on the subject are being heard by the Court, including those concerning the fate of persons who migrated to Assam after 1971. Its broad perspective on citizenship should resonate in future conversations.
However, simply finalising the cutoff date will not resolve the infiltration issue. The National Register of Citizens (NRC) was planned with 1971 as its cutoff year, but it has yet to be implemented. The government believes that the NRC should be revised by 20% in districts with international borders with Bangladesh; however, AASU believes that the entire NRC should be reviewed.
The majority of the bench determined that Section 6A did not violate the citizenship provisions of Articles 6 and 7 of the Constitution. The Articles set a deadline for awarding citizenship to migrants from East and West Pakistan at the “commencement of the Constitution” which was January 26, 1950; however, Section 6A took effect considerably later. They also rejected the argument that the clause is unconstitutional since it treats Assam differently than the rest of the country. In his major conclusion, speaking for himself and two other judges, Justice Surya Kant acknowledged the petitioners’ “demographic anxiety” but did not find that a mere change in demography undermined the Constitution’s concept of fraternity.
In his concurring opinion, CJI states that Section 6A was designed to strike a balance between assuring that the Assamese people’s cultural, economic, and political rights are not violated by mass immigration and taking a humanitarian stance towards the state’s immigrant population.
The SC heard a lawsuit that primarily argued that Section 6A was unconstitutional because it infringed upon the right of the indigenous people of Assam to preserve their culture. This argument is rejected by the majority, which interprets Article 29 in a pluralist and multicultural manner rather than in a way that would strengthen cultural exclusivity. It states that the article does not forbid the coexistence of any other culture; rather, it seeks to “conserve” the culture of any particular group of citizens.
The Court correctly considered historical trends before making its ruling. While Section 6A granted deemed citizenship to all individuals who arrived in Assam from regions in what was then East Pakistan prior to January 1, 1966, it also established a registration system for those who arrived between that date and March 25, 1971, when Pakistan launched Operation Searchlight, a military campaign to quell the Bengali nationalist movement. Before they could request to be registered as citizens, the latter group of people had to be regularly residing in Assam and have been deemed foreigners by a tribunal. They would, however, lose their right to vote for ten years following the date of detection.
In his dissent, Justice Pardiwala ruled that Section 6A was invalid by using the criterion of temporal unreasonableness. This theory, which has not been applied much in India, holds that a clause that was acceptable when it was passed could eventually become irrational. According to the dissent, Section 6A(3) has grown irrational over time as it was unable to accomplish its main goal of stopping illegal immigration. The dissent claims that this is because Section 6A has no sunset clause, meaning that anyone can benefit from it now or in the future, including if they are found to be a foreign national. He has so thrown aside the clause with prospective effect, arguing that it is irrational.
Nonetheless, Justice Kant agreed with Justices M.M. Sundresh and Manoj Misra that Assam was burdened by the constant influx of migrants from Bangladesh. However, Section 6A was not solely to blame for this phenomenon. According to Justice Kant, the government’s tardiness in identifying and deporting the post-1971 immigrants from Bangladesh was largely to blame. He claims that embracing the idea that a portion of society’s cultural rights may be eroded due to demographic change might pave the way for similar arguments to discourage interstate movement under the pretence of preserving indigenous culture. This is not a baseless fear. Despite the fact that 19 lakh persons have been recognised as non-citizens, nothing more has been done in the ongoing process to finalise an NRC for Assam.
Although it does not mention so directly, the court is aware that invalidating Section 6A in its entirety would leave many Assamese stateless, and this is obviously something that has been on its mind. The SC appears to want to become involved in the specifics of border barriers and illegal immigration identification, even as it upholds Section 6A. The Constitution Bench has requested information regarding the unauthorised immigration from Bangladesh and the actions taken by the Central government to identify and expel the unauthorised individuals. According to a government affidavit submitted to the court, identifying, apprehending, and expelling foreign nationals who have entered India illegally is a “complex ongoing process.” According to the Centre, the entire length of the boundary was 4,096.7 kilometres. The ground was hilly, it was porous, and rivers cut across it. West Bengal, Meghalaya, Mizoram, Tripura, and Assam are the states that form the boundary. West Bengal alone shared 2,216.7 km of its border with Bangladesh, the ministry pointed out, while Assam shared 263 km with the neighbour.
(The writer is a Columnist. All views and opinion expressed in the are the author’s own)