The Supreme Court 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, a five-judge Constitution bench headed by Chief Justice D Y Chandrachud referred to the humanitarian aspect of the 1971 Indo-Pakistan war for the liberation of Bangladesh which also led to the influx of immigrants.
The bench, also comprising Justices Surya Kant, M M Sundresh, J B Pardiwala and Manoj Misra, commenced 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.
”But to test your argument there is no material before us to indicate that the impact of granting certain benefits to citizens who came in between 1966-71 was so grave that the demographic and cultural identity of the state was affected by those five years,” the bench told senior advocate Shyam Divan who said the socio-cultural, economic and other rights of the indigenous people are getting affected due to the influx and the special provision.
”Yes, we will have to see whether the impact of Section 6 A was such that between 1966 and 1971 a radical change in demography took place in the state so as to affect the cultural identity of Assam,” the bench said.
It asked Solicitor General Tushar Mehta, appearing for the Centre, to provide the data on the beneficiaries of the legislation since 1966 to July 16, 2013. Mehta assured he will file it.
”One thing you have to bear in mind is that if Parliament were to merely grant amnesty to a group of illegal immigrants then that can be a very different situation. But we can't deny that Section 6A was enacted at a point which is deeply connected to our history, namely, that India had a very vital role, if I may use that expression, in the creation of Bangladesh. Because we were part of the war as much as Bangladesh was and illegal immigration took place then,” the bench said.
Parliament seems to have proceeded on the basis that the immigration which took place cannot be regarded purely as ”illegal but it was something humanitarian”, the CJI said.
”The war took place, there was liberation. Bangladesh was created. And therefore this was not just looked at by Parliament from the perspective of an illegal immigration, but something which is deeply interwoven in our own history of conflict and the liberation of Bangladesh,” the bench said.
The solicitor general 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.
Divan, appearing for several Assam petitioners who are opposed to the provision, said it violated the basic fabric of the Constitution which are the preambular values of secularism, fraternity and brotherhood of the nation.
Referring to fraternity as mentioned in the Constitution, he said it is among the citizens and not related to some kind of 'global fraternity'.
He said West Bengal has more illegal immigrants than Assam, and this provision has been enacted for Assam as if it were a kind of licence to outsiders to come and acquire Indian citizenship.
”For the quantum of illegal immigration you have to show that Assam was at par with other border states... We have always allowed an underinclusive legislation by Parliament,” the bench said.
”This is not underinclusive legislation. Here we are a community and 6A completely destroys my community,” Divan asserted.
He referred to various reports, including the one prepared by S K Sinha, a former governor of Assam, on the "grave threat" posed by the influx of people from Bangladesh to Assam.
"The influx of illegal migrants is turning these districts into a Muslim majority region. It will then only be a matter of time when a demand for their merger with Bangladesh may be made," he said quoting the report.
Seeking data, the bench said, ”What is the quantum? How many people have taken the benefit of this prior to 1966 and what about the quantum of 1966-71. Post 1971 there was a cut off completely.”
”You cannot have a situation where cultural rights of one border state get completely undermined and destroyed. There has to be a corresponding duty to ensure that people are not reduced into a minority in their own homeland," Divan said.
Seeking declaration of the provision as invalid, Divan also 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.
"Then there are various directions we have requested regarding complete fencing of the border, steps for the process of identification, detection and deportation of foreigners in the state of Assam,” he said.
The bench analysed census data since Independence and asked, ”There has been a sudden increase in infiltration according to you post the amendment as well. But will that have an impact on the validity of amendment?”
Divan said in a federation, if a law is drafted, it has to be made applicable across the country, and if the border state is a class, it must apply to all such entities.
"Then again the burden lies on you to show that the extent of infiltration between 1966-71 in Assam was comparable to infiltration in other states,” the bench said.
”It's not for me to show... You are singling out one unit from the entire federation and you are making a special provision there which is destroying my cultural rights and my identity,” Divan said.
The hearing will resume on Wednesday.
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 the foreigners, Section 6A was inserted into the Citizenship Act to grant citizenship to people who have migrated to Assam.
A two-judge bench had referred the matter to the Constitution bench in 2014.