A petition pending before the Supreme Court, and expected to come up before a five-judge Bench, could potentially affect the way the National Register of Citizens (NRC) is being updated in Assam. What is this petition, and how does it relate to the NRC?
It was filed in 2012 by a group of organisations in Assam. They have challenged Section 6A, inserted in the Citizenship Act in 1986 and applicable only to Assam. This is relevant to the NRC update because it is being carried out in accordance with Section 6A. While this section grants citizenship to those who entered Assam before March 25, 1971, the reference date for the rest of India is July 19, 1948. In 2014, a two-judge Bench headed by Justice Ranjan Gogoi referred the petition to a five-judge Bench. The Bench headed by Justice Madan B Lokur held a hearing on April 19, 2017, but it got dissolved on the retirement of Justice P C Pant in August 2017. In February this year, Chief Justice of India Dipak Misra assured that he would soon constitute a new Bench.
Citizenship in Assam
Applicable only to Assam, Section 6A defines as citizens every person of Indian origin who came to Assam before January 1, 1966 and are ordinary residents of Assam. Those who came after January 1, 1966 but before March 25, 1971, and have been ordinary residents of Assam and got themselves registered, will not have the right to vote for 10 years from the date of their detection as foreigners, but will have all other rights available to citizens. All others who entered Assam after March 25, 1971 would be considered illegal immigrants and deported after due process under the Illegal Migrant Determination Tribunal (IMDT) Act. This Act was later scrapped by the Supreme Court.
Citizenship in India
Under Article 6 of the Constitution, anyone who migrated to India before July 19, 1948, from territory that had become part of Pakistan, automatically became a citizen if either of their parents or grandparents was born in India. But those who entered India after this date needed to register themselves. Again, under the original Citizenship Act, 1955, anyone born in India or whose parents were born in India, could claim Indian citizenship. But after the 1986 amendment, a person born on or after July 1, 1987, can become an Indian citizen only if he was born in India and if either of his parents was a citizen of India at the time of his birth. In 2003, the then NDA government made the condition more stringent, by adding that those born in India on or after December 3, 2004, can become citizens only if both their parents were Indian citizens or one parent was a citizen and the other was not an illegal immigrant.
In three judgments —2005, 2006, 2014 — the Supreme Court had expressed displeasure about the citizenship law, in respect of foreigners who had entered Assam, being different from the law in the rest of the country.
2005: On a petition by Sarbananda Sonowal (now Chief Minister of Assam), a three-judge Bench struck down the IMDT Act as unconstitutional since it applied only to Assam and was at variance with the Foreigners’ Act, 1946. The court ignored the fact that there is variance in the rest of the country too: while for Western Pakistan the cut-off date is July 19,1948, for Eastern Pakistan the Nehru-Liaquat Pact had pushed it to 1950. The judgment is problematic as no law can be struck down on the ground that it was less efficient than an earlier law. If this were so, then the original provision of the Citizenship Act, 1955, giving citizenship on birth in India is certainly better than the 1986 and 2003 amendments. Moreover, special law can be at variance with general law.
2006: Following the scrapping of the IMDT Act, the government issued the Foreigners (Tribunal) for Assam Order, 2006, which amended the Foreigners’(Tribunal) Order, 1964. On a petition by Sonowal, the Supreme Court struck down such subordinate legislation on the ground that these orders were issued to nullify its judgment of 2005. The court ruled that a mandamus issued by the court cannot be nullified by a subordinate legislation particularly when the parent Act remains in force and applicable.
2014: In the Asom Sanmilita Mahasangha judgment, the Supreme Court discussed NRC in just one sentence while laying down that it be completed by 2016. This led to a number of orders and supervision of the NRC process by the Supreme Court. The judgment quoted from a book in which immigrants had been termed as “vast horde of land hungry immigrants mostly Muslims” and “vultures” who will gather wherever there is a “carcass”; it seems this carcass means Assam. The court also relied on former Governor S K Sinha’s controversial report of November 8, 1998, where he talked about Indian and Bangladeshi secularism and then said that “it will then only be a matter of time when a demand for their merger will Bangladesh may be made” .
What it may mean
If the Constitution bench declares Section 6A unconstitutional, then the entire exercise of NRC may become redundant. Since the petitioners are asking for a uniform cutoff for the entire country, it could mean that many people already included in the NRC would no longer be eligible. In the 2014 judgment, the court discussed at length Section 6A, which had been inserted in 1986 as a result of the Assam Accord. Also, the court accepted the challenge to the constitutionality of Section 6A and referred to a Constitution Bench as many as 13 questions, such as whether Section 6A is constitutional when it prescribes a different cutoff date for Assam from the one prescribed for the rest of the country; whether singling out of Assam in Section 6A violates the right to equality; whether Section 6A dilutes the political rights of citizens in Assam; whether Section 6A violates the right to life of people of Assam under Article 21 who have been adversely affected by the massive influx of illegal migrants from Bangladesh; and whether Section 6A violates rule of law in that it gives way to political expediency rather than to government according to law.
Faizan Mustafa is a constitutional expert and Vice Chancellor of NALSAR University of Law, Hyderabad