Guwahati: Even as confusion, fear, frustration, disappointment and discontent is widespread among various sections of people and the political class in Assam after the publication of the final National Register of Citizens (NRC) on August 31, a vital legal question related to the register is hanging in the balance.On August 13, while ordering the office of the Registrar General of India to publish the final NRC on August 31, the Supreme Court stated that the present NRC would be updated as per a verdict of a five-member constitution bench waiting to be re-instituted since February 2018.In all, the division bench comprising present Chief Justice Ranjan Gogoi and Justice R.F. Nariman had set aside 13 questions related to the constitutional validity of Clause 6(A) of the Citizenship Act, 1955 among other issues, including the rights of the indigenous communities to protect their distinct culture, language, script, under Article 29(A) of the Constitution to the bigger bench in December 2014.The Guwahati-based Assam Sanmilita Mahasangha, along with Assam Public Works (APW), the main petitioner in the case that led to the apex court to monitor the update of the exclusive citizens’ register in the state, have challenged the constitutional validity of Clause 6(A) on the ground that there couldn’t be an exclusive cut-off date for one state while a separate date is applicable in the rest of India. Clause 6(A) was inserted into the Act with parliamentary approval in 1985.The Wire caught up with Matiur Rahman, the working president of the Mahasangha, to understand more on the legal aspect of the NRC issue.Edited excerpts from the interview.At the outset, if you can tell our readers, what is Assam Sanmilita Mahasabha? When was it formed? What are its concerns?MatiuMatiur Rahmancomprr Rahman of the Assam Sanmilita Mahasanga. Photo: Special arrangementAssam Sanmilita Mahasangha was formed at the Talatal Ghar premises, the Rajdarbar of the Ahom kingdom in present Sibsagar district. Assam was an independent nation then.The Mahasangha was formed in 2007 to protect the rights of the indigenous people living in Assam. It is primarily a confederation of 90 indigenous organisations of the state representing diverse ethnic communities living from time immemorial in the state.Aside from Assam Public Works and other organisations from the state, the Mahasangha is also a petitioner in the SC in the NRC-related case. In short, if you can tell us what is your petition about and why did you choose to file it?As you said, the Mahasangha is not a direct petitioner in the NRC case being heard in the Supreme Court since 2009. (The main petitioner is Assam Public Works.) However, we approached the apex court with a writ petition in 2012 seeking a direction towards implementing the provisions enshrined in the UNDRIP (United Nations Declaration on the Rights of Indigenous People). (India voted for the declaration subject to certain conditions.)In the same petition, we also challenged Section 6(A) inserted into the Citizenship Act, 1955 for Assam, as per which the state has an exclusive citizenship cut-off date of March 24, 1971. We have challenged it on the ground that it is applicable only in Assam, while in the rest of India, there is a different and uniform provision adopted for citizenship. We questioned its constitutional validity.Also Read: Why Is No One In Assam Happy With the Final NRC?The final NRC, published this past August 31, has already been updated as per the 1971 date set by the Assam Accord or the Memorandum of Settlement between the All Assam Students Union, All Assam Gana Sangram Parishad and the state and the Central governments in 1985. You are now talking about turning the clock back further.The Assam Accord does not mention that the citizens’ enumeration would be done by updating the NRC of 1951. Very interestingly, the accord also doesn’t directly specify that March 24, 1971, will be the base year to identify illegal foreigners residing in the state. Rather, 1966 is mentioned as the base year for identification of non-citizens. The provision specified that the district administration would detect those who entered the state after January 1, 1966, register their names, and after that, their names would be deleted from the state’s voters’ lists for ten years.After the ten years, their names will be reinserted in voters’ lists. The NRC was not mentioned as the mechanism to detect and delete the names of foreigners.Nothing much happened since. In 2009, the Assam Public Works filed a writ petition in the SC seeking detection and deletion of names of foreigners from the voters’ list. The court thereafter decided to update the NRC based on the 1971 voters’ list. (The court agreed to do so because there was already a tripartite agreement between the All Assam Students Union, which spearheaded the anti-foreigner agitation between 1979-1985, and the Assam and Central governments in 2005.)Henceforth, the ASM also challenged Clause 6(A) of the Act as it distinguishes foreigners considering only March 24, 1971, as the base date, while the base date as per the accord is January 1, 1966. The ASM also considers this clause unconstitutional and discriminatory as it is applicable only for the state of Assam.Meanwhile, the SC has kept aside, since 2014, 13 questions on the Assam citizenship issue to be dealt with by a five-judge constitutional bench of the apex court. What is its status?The two-member division bench of the apex court comprising current Chief Justice Ranjan Gogoi and Justice R.F. Nariman heard the ASM’s plea from 2013 to 2014. Subsequently, the bench referred the writ petition to a five-judge constitution bench on December 17, 2014. Simultaneously, the same division bench had ordered the NRC to be updated based on the 1971 voter list, which is self-contradictory.Several times, the ASM had approached the division bench not to publish the NRC until the Constitution bench gives a verdict. But it had summarily rejected both our and APW’s pleas.To give you a quick chronology of this, there were already two such constitutional benches to which this subject was referred to. During the 2016-17 tenure of Chief Justice T.S. Thakur, a constitutional bench was instituted. Justice Thakur listed many cases from across the country to be taken up by the bench. Our case was sixth in the list. After the hearing was done in the fourth case, he retired and the story ended there.Then during 2017, based on our appeal, the next Chief Justice, J.S. Khehar, instituted another five-judge bench. That bench conducted two hearings, on April 11 and May 7, 2017. What was left was only the final hearing. It was decided that within one month or six weeks, there would be daily hearings and a final order would be passed. That hasn’t happened.A five-judge constitution bench of the Supreme Court will decide the validity of Clause 6(A). Credit: PTI/Ravi ChoudharyDuring Chief Justice Dipak Misra’s tenure, in February 2018, he said a fresh five-judge constitution bench would be instituted to deal with the 13 questions. But he didn’t.After he retired, we approached the present chief justice on November 1, 2018. Chief Justice Gogoi said he would deal with it in January 2019. In January, we filed our application, nothing happened. Then, our lawyer mentioned it on April 8, 2019, at the CJI’s court. That day, the CJI asked the court master to note it down and register our application for an early hearing. Accordingly, the case was listed on April 22, 2019. However, that day, the CJI dismissed it, stating that there was no need for an early hearing.Suddenly, on the August 13 written order, the same two-judge bench, while fixing the date of publication of the final NRC, categorically mentioned the constitutional bench. That particular paragraph of the order said, “We make it clear that subject to orders as may be passed by the constitution bench in WP(C) No 562 of 2012 and WP(C) No 311 of 2015, National Register of Citizens (NRC) will be updated”.In such a circumstance, the NRC published on August 31 has no constitutional sanctity and is just a waste paper on which Rs 1,600 crore was spent. So we await the constitution bench’s verdict on the issue.While we wait for it, we sincerely hope that the apex court, while hearing our plea, won’t go beyond the stipulated provisions of the Constitution and instead declare a date for Assam to detect foreigners which is similar to the rest of the country.Also Read: In Fighting for NRC-Excluded, Rights and Aspirations of Assamese People Cannot be IgnoredYou also have approached the president of India in this regard.Yes, we at the Mahasangha have sent a memorandum to the president of India on August 28 to intervene in this matter as he has the constitutional power to do so. We sought his intervention to issue a directive to the SC to not publish the NRC at this stage, without the verdict of the constitutional bench, because the constitutional validity of Clause 6(A), under which the register was updated, is still to be decided.