Observing that several northeastern states are affected by insurgency and violence, the Supreme Court Wednesday said the government must be given "latitude and leeway" to make adjustments necessary to save the nation.
Referring to section 6A of the Citizenship Act applicable exclusively to Assam, a five-judge constitution bench headed by Chief Justice DY Chandrachud said governments have to make compromises for the overall well-being of the nation.
"We must also give the government that latitude. Even today there are parts of North East, we may not name them, but there are states affected by insurgency, affected by violence. We have to give the government that leeway to make adjustments necessary to save the nation," Chandrachud said.
He made the observation after senior advocate Shyam Divan, appearing for the petitioners, submitted that section 6A operates in a "blanket manner" and rewards illegal immigrants who continue to stay in Assam in violation of the citizenship law.
"Assam and other immediate neighbouring border states form a homogeneous single class. Singling out Assam is impermissible," Divan said.
The bench, also comprising Justices Surya Kant, MM Sundresh, JB Pardiwala and Manoj Misra, is hearing 17 petitions to examine the constitutional validity of section 6A of the Citizenship Act relating to illegal immigrants in Assam.
Section 6A was inserted in the Citizenship Act as a special provision to deal with the citizenship of people covered under the Assam Accord.
It says those who came to Assam on or after January 1, 1966 but before March 25, 1971 from specified territories, including Bangladesh, in accordance with the Citizenship Act amended in 1985, and since then are residents of the northeastern state, must register themselves under section 18 for acquiring Indian citizenship. As a result, the provision fixes March 25, 1971 as the cut-off date for granting citizenship to Bangladeshi migrants in Assam.
Seeking declaration of the provision as invalid, Divan had on Tuesday sought a direction to the Centre to frame a policy in consultation with states/UTs for settlement and rehabilitation of all people of Indian origin who came to Assam after January 6, 1951 proportionally across the country.
Responding to his submission, the bench asked if Parliament could let the "strife" continue in Assam on the ground that the law will discriminate among states.
"Can Parliament say that we are doing this to bring about peace in a strife-ridden State? Or should we continue that strife merely because we will be discriminating between states? ...The situation of Assam in 1985, there was so much violence. Any solution they would have found is bound to be an inexact solution," the bench said.
At the outset, Divan said illegal migrants in Assam who are required to be processed under Section 3 of the Foreigners Act are rewarded with citizenship.
"The very existence of section 6A operates even today as a beacon to persons to migrate illegally into Assam and then gain the system in the manner they want and make claim to citizenship.
"My submission is that Assam and other immediate neighbouring border states form a homogeneous single class. Singling out Assam is impermissible. The next point is that a violent or any type of political agitation resulting in a political settlement is not a sufficient basis for classification," he said.
Divan said allowing huge illegal immigrant regularisation with potentially future generations also making a claim without any time frame undermines economic, social, and political aspirations, which are facets of Article 21, of the people of Assam.
Opposing section 6A, senior advocate KN Choudhury, representing one of the petitioners, claimed that out of the state's 126 assembly constituencies, indeginious people can win elections only in 57.
"That is the state of affairs. Can we ever conceive a situation where the government of India wants to protect immigrants at the cost of indeginious people?
This is a legislation brought by a regime who had a brute force of 400 plus MPs. It is a parliamentary joke to have this legislation. Instead of protecting indigenous people, people living in the state, they're protecting illegal immigrants for the sake of politics," Choudhury said.
The hearing remained inconclusive and will resume on Thursday.
The top court had on Tuesday sought data on the beneficiaries of section 6A of the Citizenship Act in Assam, saying there was no material before it which could indicate that the effect of granting Indian citizenship to Bangladeshi immigrants between 1966 and 1971 was so great that it impacted the demographic and cultural identity of the border state.
While acknowledging the problem of cross-border infiltration in Assam, the constitution bench had referred to the humanitarian aspect of the 1971 Indo-Pakistan war for liberation of Bangladesh which also led to influx of immigrants.
Solicitor General Tushar Mehta had referred to data produced by an MP in the Rajya Sabha earlier and said 5.45 lakh illegal immigrants had come to Assam between 1966 and 1971.
From 1951 to 1966, the figure was 15 lakhs, he added.
As many as 17 petitions, including the one filed by NGO Assam Public Works in 2009, are pending in the apex court.
Under the Assam Accord signed by the All Assam Students Union, Assam government and the Government of India on August 15, 1985, to detect and deport foreigners, Section 6A was inserted into the Citizenship Act to grant citizenship to people who have migrated to the state.
A two-judge bench had referred the matter to the Constitution bench in 2014.
