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Citizenship and Assam: An Explainer on the Legal Questions That Still Loom Large

The Assam NRC has been updated. The home minister has promised a nationwide exercise. Yet loopholes continue to populate the citizenship issue.

New Delhi: It has now been nearly three months since the final National Register of Citizens (NRC) was published in Assam.

While the apprehension over the possible loss of citizenship of nearly 20 lakh people in the north-eastern border state continues to grip national news, and a more threatening air of uncertainty looms over those who comprise that number. The time is perhaps ripe to put the lens over some legal questions pertaining to citizenship in Assam vis-à-vis the rest of India.

The basic premise to begin from is what we know already: Assam is the only state in India to have an exclusive cut-off date for citizenship. Section 6A, inserted into the Citizenship Act, 1955, in December 1985, denotes it.

However, once this provision is examined in detail, a a litany of unanswered questions are raised.

A point from which we could begin looking at the issue could be the last order of the two-judge bench led by then Chief Justice of India, Ranjan Gogoi, before the publication of the final NRC.

What does the last order of the Supreme Court say?

The order, passed on August 13, said, “We make it clear that subject to orders as may be passed by the Constitution Bench in Writ Petition (C) No. 562 of 2012 and Writ Petition (C) No. 311 of 2015, National Register of Citizens (NRC) will be updated.” 

Why did the apex court say so?

This is because 13 questions related to section 6A of the Citizenship Act – framed by the bench on December 17, 2014, for a constitutional bench – are yet to be dealt with conclusively.

These questions came up during the hearing of a petition by a Guwahati-based civil society organisation, Assam Sanmilita Mahasangha (ASM), which challenged the constitutional validity of Section 6A of the Act.

ASM had filed a writ petition (000562/2012) in the Supreme Court in 2012, calling the section discriminatory towards Assam as it is applicable only in the case of that particular state while there is a uniform cut-off date for citizenship in the rest of India.

What are the 13 questions that the two-judge bench had set aside for a bigger bench for clarification?

“1) Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6A of the Citizenship Act in as much as Section 6A of the Citizenship Act, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4 (2) read with Article 368 (1)?

2) Whether Section 6A violates Articles 325 and 326 of the Constitution of India in that it has diluted the political rights of the citizens of the State of Assam?

3) What is the scope of the fundamental right contained in Article 29(1)? Is the fundamental right absolute in its terms? In particular, what is the meaning of the expression “culture” and the expression “conserve”? Whether Section 6A violates Article 29(1)?

Women with their family members gather at Hatishala Bazaar in Assam after the NRC release. Photo: By special arrangement

4) Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution? Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”? Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?

5) Whether Section 6A violates Article 14 in that, it singles out Assam from other border States (which comprise a distinct class) and discriminates against it. Also whether there is no rational basis for having a separate cut-off date for regularising illegal migrants who enter Assam as opposed to the rest of the country?

6) Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh?

7) Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?

8) Whether, after a large number of migrants from East Pakistan have enjoyed rights as Citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases?

9) Whether section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits Citizens who have allegedly not lost their Citizenship of East Pakistan to become deemed Citizens of India, thereby conferring dual Citizenship to such persons?

10) Whether section 6A violates the fundamental basis of section 5 (1) proviso and section 5 (2) of the Citizenship Act (as it stood in 1985) in that it permits a class of migrants to become deemed Citizens of India without any reciprocity from Bangladesh and without taking the oath of allegiance to the Indian Constitution?

11) Whether the Immigrants (Expulsion from Assam) Act, 1950, being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners’ Act and the Foreigners (Tribunal) Order, 1964 made thereunder?

12) Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law?

13) Whether Section 6A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed citizenship to such persons arbitrarily?” 

Also, in response to an application filed by ASM in 2015 in regard to the contours of section 3 of the Citizenship Act in terms of Assam, the SC turned it into a writ petition, stating that the “issues arising are of considerable public importance having the potential of affecting the fundamental rights of a large number of citizens”.   

What does Section 6A say?

It essentially says that those who entered Assam till January 1, 1966, from East Pakistan (which became Bangladesh) would be considered Indian citizens.

Those who settled in the state between January 2, 1966 and March 24, 1971, would have to register themselves as per rules to be set up by the Central government and would enjoy all other rights except the voting right for a ten-year period. On the expiry of that period, their names would be included in the electoral rolls. 

Also read: Nationwide NRC: Here’s a List of Documents You May Have to Furnish if Assam is the Model

Though Section 6A of the Act differentiates between those who came till January 1, 1966 and those till March 24, 1971, the updated NRC does not. The NRC authorities accepted any one of the listed documents under list A and from list B till March 24, 1971.

The NRC was updated as per the Rule 4A of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. 

Was there ever a bigger bench set up to look into those 13 questions?

A five-judge constitutional bench was instituted by Chief Justice J.S. Khehar in 2017 when the court was on vacation. The bench conducted two hearings, on April 11 and May 7. However, since the arguments would take more time, it was decided to reconstitute a fresh bench later.

In February 2018, the next Chief Justice, Dipak Misra, said a fresh five-judge constitution bench would be instituted soon to deal with the 13 questions. But neither he nor his successor, Justice Gogoi, did it.

Justice Gogoi, without setting up the bigger bench to deal with the fundamental questions around the contours of Sections 6A and 3, went ahead with the update of the NRC as per the citizenship cut-off date of March 24, 1971. This is the reason the bench led by him said that the NRC would be updated if the constitution bench, when formed, passes any order on the constitutional validity of Section 6A.  

People check their names on the NRC final list at a centre in Buraburi Gaon, Morigaon, Assam on Saturday, August 31. Photo: PTI

What does the Section 3 of the Citizenship Act say?

Section 3 principally states that those who were born on or after January 26, 1950 in India but before July 1, 1987 would be an Indian citizen. 

So, while Assam has March 24, 1971 as the citizenship cut-off date, Clause 3 of the Citizenship Act says anyone born in India before July 1, 1987, would be considered an Indian citizen. Is it then not incongruous to the provision exclusive inserted for Assam?

Section 3 clashes with Section 6A. While in Assam, there is a March 1971 cut-off date, for the entire country, it is effectively July 1, 1987. Since the Citizenship Act doesn’t mention that Section 3 will not be applicable to Assam, legal experts are of the view that it would be applicable to the state too along with the rest of India.

What would happen in Assam if we take into consideration both Sections 6A and 3 of the Act?

First, the exclusive cut-off date under Section 6A, brought for only a state, complicated the concept of ‘one country, one citizenship, one set of rules,’ for the purpose.

Secondly, while Section 3 speaks about granting citizenship to anyone born in India before July 1, 1987, 6A comes across as a sort of general amnesty granted to those not necessarily born in independent India but may have crossed over from East Pakistan to settle down in Assam between 1950 (the citizenship cut-off year in India) and 1971 (the citizenship cut-off year set for Assam).

While migration from neighbouring countries, particularly from East Pakistan, might have happened to other bordering states like West Bengal and Bihar too between 1951 and 1971, in Assam, that category of people could become Indian citizens due to the later date for Indian citizenship, unlike in other states.

That the government gave a general amnesty to such migrants in Assam, have also led some to presume that it might have encouraged that category of people from other border states to move into Assam. Since the government didn’t register the category of people who came to the state post the 1950 citizenship cut-off date before granting the general amnesty of 1971, there is no data, though, to pin down exactly how many people benefitted from the exclusive cut-off date in Assam.

Though Assam accepted migrants till March 24, 1971 as per the Assam Accord, both the Accord and Section 6A of the Citizenship Act are silent on the descendants of those to be granted citizenship till 1971.

Herein comes the significance of Section 3 of the Act. While the Section 6A was inserted for Assam on December 7, 1985, the government brought in Section 3 in 1986, stating that those who were born till the time of its notification would be considered Indian citizens. Since it was notified on July 1, 1987, anyone born in India till that date would be considered an Indian citizen.

Since there is no mention of the descendants of those who came to Assam after March 24, 1971 being necessarily kept out of this provision under Section 6A or in the Assam Accord, they will get the benefit of this amendment along with any other person born on Indian soil of such parentage till that day. This is if an NRC is to be conducted countrywide.

Those eligible to be Indian citizens by birth till July 1987 do not necessarily have to have Indian parentage. However, the amendment brought to the Act in 2003 says that a person can be a citizen by birth only if any of their parents is an Indian citizen. Does this then not apply to Assam?

It does. This, particularly, can benefit the descendants of those persons who might have settled in Assam after the 1971 citizenship cut-off date without papers but married an Indian citizen. The apex court’s August 13 order clarified that such category of descendants will get the benefit if they have drawn their legacy from a parent who is an Indian citizen.

The Supreme Court took into cognisance not just the 2003 amendment but also a 2004 amendment to the Citizenship Act which states that a person will not be considered an Indian citizen by birth if one of the parents is an illegal immigrant or their citizenship is under a cloud.

A reading of the apex court’s August 13 order clears it too. It is the reason why children born after 2004 have not been included in the NRC if one of their parents have been either declared a doubtful voter, or a foreigner by a Foreigners’ Tribunal, or is contesting such an order in a higher court.

People wait while officials check for their names on the NRC. Photo: nrcassam.nic.in

The anti-foreigner agitation in Assam hinged on the fear of smaller communities losing their cultural, social and primarily political rights on the face of large-scale undocumented migration from across the international border. The 1971 cut-off date for citizenship in the state was brought in to address that fear. The Accord also spoke of granting ‘constitutional safeguards’ to the ‘Assamese people’ for the same reason. Have those ‘safeguards’ been granted?

Not yet. However, in order to silence the vehement protests against the Citizenship (Amendment) Bill in Assam prior to the 2019 general elections, the Narendra Modi government did announce a ‘high-powered committee’ to deliberate on the issue mentioned in Clause 6 of the Accord. But the members named by the Centre for the committee refused to be a part of it on the argument that it was a token move only to douse the protest in the state against diluting the terms of the Assam Accord.

The Modi government formed yet another “high powered” Clause 6 committee in July 2019. The committee, under the Ministry of Home Affairs – the nodal ministry for implementation of Assam Accord – has to submit its report within a period of six months.

Union home minister Amit Shah has yet again begun talking about re-introducing the controversial Citizenship (Amendment) Bill to provide relief to Bengali Hindus (among other groups countrywide) in Assam who have found themselves out of the final NRC. Will this promised amendment really come in handy to that category of people?

In this context, the report of the joint parliamentary committee (JPC) on the Citizenship (Amendment) Bill 2019, submitted to the Lok Sabha on January 7, 2019, can be instructive. A reading of the report makes it clear that a legal loophole will most likely be made use of to justify the Bill in case of Assam.

Also read: Why BJP and Amit Shah Are Pushing For Another Round of NRC in Assam

The report mentioned that Assam Accord paved the insertion of Section 6A to the Citizenship Act. However, the Department of Legal Affairs pointed out that though December 31, 2014, the revised cut-off date for citizenship as per the Bill for Hindu Bangladeshis (among others), is in conflict with the Accord, as 6A “only deals with foreigners who entered India from Bangladesh into Assam from 1 January 1966 to March 24, 1971. It doesn’t provide any form of detection, deletion or expulsion of foreigners beyond the said date.”

The department told the committee that if any case of Bangladeshi Hindus have not been already decided under Section 6A by the Foreigners’ Tribunal, then the Bill if it becomes a law, will not treat that class of people as ‘illegal migrants’. Also, the pending proceedings against such people “should be abated” due to the amendment brought to the Act.   

In effect, this also means that those who had applied to be included in the NRC in Assam with the claim that they entered the state before the formation of Bangladesh in March, 1971, but whose claims were rejected by the authorities for some reason, would be given the option to find protection under a law essentially to be brought to grant citizenship to those who came to Assam (and rest of India) after formation of Bangladesh.

By bringing in the amendment to the Act before activating the process of Tribunals in Assam to look into the citizenship cases of those left out of the final NRC, the Modi government is hoping to keep Hindu Bengalis out of Section 6A jurisdiction.

Also read: Why Is No One In Assam Happy With the Final NRC?

Though the Modi government is aiming to grant citizenship to six religious groups from Afghanistan, Bangladesh and Pakistan on the ground of ‘religious persecution’ or ‘fear of religious persecution’ in their home countries, the Citizenship (Amendment) Bill brought by the government in the last Parliament session didn’t spell out the ‘religious’ reason.

Yes. The JPC report stated:

“Taking into account the views expressed by the Constitutional expert, the Committee desired to know from the Ministry of Law & Justice, the overall impact it would have if ‘persecuted minorities from the neighbouring countries’ replace the proposed Amendment specifying the religiously persecuted minority communities in Afghanistan, Bangladesh and Pakistan. In response, the Legislative Department submitted as under:

“Using persecuted minorities from the neighbouring countries instead of its current form may negate the objectives of the Bill. As there is a possibility for wider scope of interpretation, it may be construed to include other communities (religious or otherwise). Moreover, the aspect of ‘religious persecution’ would also be lost sight of.”

Seeking clarifications for not mentioning the term ‘religious persecution’ anywhere in the Bill or in the Principal Act, the Legislative Department stated:

“The Bill has been drafted in such a way that it gives reference to the notification dated 7.9. 2015 containing the above expressions”.