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The Constitution Bench of the Supreme Court, on Tuesday, posted a plea challenging the constitutional validity of Section 6A of the Citizenship Act which was incorporated in the 1985 amendment process in continuation of the Assam Constitution, with directions, 13th December, 2022.
The senior lawyer, Mr. Kapil Sibal submitted it to the 5-judge bench Judges DY Chandrachud, MR Shah, Krishna Murari, Hima Kohli and PS Narasimha that several documents, including ‘very old’ documents, relevant to the current proceedings are in the High Court Register. He asked the bench to pass an order to the Registry to allow them to enter the same. Accordingly, the Chair proceeded as follows:
“At the request of the Ld Counsel, the Registrar is directed to inspect all records and documents relating to this batch of cases by the lawyers on record representing the contesting parties on a specified day.”
The bench also asked the counsel representing the parties concerned to jointly file written submissions, preambles, and any other documents along with a general index. She asked two junior lawyers from both sides to undertake the task of preparing the documents in simple copies and distributing the same to all the concerned Counsel.
She also suggested that the advisers representing the parties concerned meet before the date of the next hearing and discuss the important issues that need to be considered by the Constitutional Court.
Counsel told the bench that in the order dated 13.08.2019 passed by the Apex court, there was a specific observation that the National Register of Citizens would be updated, subject to a writ petition. In the same he sought directions that no objection to NRC should be issued in the interim.
The Advocate General of India, Mr. Tushar Mehta chimed in saying, “This (proceeding) is not about the NRC issue.“
It also noted that without hearing the parties, orders cannot be passed.
“We can’t do it like this. We would like to see the papers, argue a little and then issue orders.”
The original
After the liberation war of Bangladesh which eventually led to Bangladesh’s independence from Pakistan, a large number of migrants were seen pouring into India. Emigration to East Pakistan started before the independence of Bangladesh, when West Pakistan started conflicts. After the end of the war, on 19.03.1972, Bangladesh and India entered into an agreement of friendship, cooperation and peace, vowing to refrain from aggression against each other and to prohibit the use of each of their territories for harm or endanger the safety of another.
On this subject, a tripartite agreement was reached between AASU, Government of India and Government of Assam and, on 15.08.1985; The Assam treaty was signed. To identify foreigners 01.01.1996 is set as the termination date. Therefore, the people who migrated to Assam before the said date should be settled permanently. Those who came to Assam after 01.01.1966 (inclusive) and up to 24.03.1971 should be identified as per the provisions of the Aliens Act, 1946 and the Aliens (Courts) Order, 1964. They would have all rights, but the right to vote for a period ten years. Therefore, Section 6A has been inserted in the Citizenship Act to strengthen the cut-off dates for granting citizenship in the State of Assam.
Assam Sanmilita Mahasangha, a civil society organization based in Guwahati challenged Section 6A in 2012. It argued that Section 6A was discriminatory, unreasonable and illegal as it provided different cut-off dates. regular illegal immigrants into Assam and the rest of India. It sought the action of the Court to direct the concerned authority to update the National Citizen Register (NCR) for the State of Assam on the basis of the details included in the NRC prepared in 1951 against updating the same. considering the choice of roll before 24.03.1971. Finally, other organizations in Assam filed petitions challenging the validity of Section 6A. When the case was heard by the Apex Court in 2014, a two-judge bench headed by Justice Rohinton Nariman referred the case to the Constitutional Court, which was finally done on 19.04.2017 comprising Justices Madan B. Lokur, RK Agarawal, Prafulla. . Chandra Pant, DY Chandrachud and Ashok Bhushan. As all the judges on the said bench, except Justice DY Chandrachud, have retired since then, CJI Lalit has now made the current Constitution Bench.
In this matter, the pending issue is whether the term “any person born in India” applies only to persons born to Indian citizens and whether the term “one of whose parents is a citizen of India at the time of his birth” in S. .3(1) (b) of the Citizenship Act, 1955 is applicable only to a person born to one parent who is a citizen and the other a foreigner, provided that he has lawfully entered and remained in India. India is not inconsistent with applicable Indian laws.
[Case Title: Assam Sanmilita Mahasangha & Ors v. Union of India & Ors. W.P. (C) No.562/2012]
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