The Supreme Court docket did the fitting factor in holding Part 6A of the Citizenship Act, 1955, constitutionally legitimate. In doing so, it has additionally continued an sad established order. This isn’t a contradiction however a mirrored image of the sophisticated historical past of Part 6A and what the petitioners difficult it have been hoping to attain.
Concern over demographic change in Assam has a protracted historical past. Even because the Structure was being debated and finalised, representations have been obtained from Assam asking that citizenship in Assam be restricted to Assamese audio system solely and never migrant Bengali audio system. Although these issues diminished a bit because of a tough border present between India and (then) East Pakistan, it flared up in a violent rebellion within the Seventies and Nineteen Eighties on the notion of accelerating numbers of unlawful migrants coming into Assam from what had develop into Bangladesh.
As a part of the Assam Accord and in an effort to deliver peace to the state, Part 6A was launched to create an unique citizenship regime for Assam. It granted citizenship to everybody who turned a resident of Assam between 1950 and 1966. It allowed a pathway to citizenship for many who had come into the nation illegally between 1966 and 1971.
Solely those that got here into Assam illegally after March 25, 1971, can be thought of unlawful immigrants and due to this fact not eligible to use for citizenship. Part 6A was not a stand-alone provision — it was speculated to be a part of the authorized framework which allowed the federal government to determine and deport unlawful migrants from Assam.
A long time after Part 6A was launched into legislation, organisations from Assam wished to have it struck down, arguing that it handled Assam in a different way from the remainder of India by legalising unlawful immigrants between 1950 to 1971 and that the deadline for getting citizenship ought to be the identical throughout the nation. Among the many challenges to the provisions of Part 6A, two novel arguments have been made — one which Part 6A violated the cultural and linguistic rights of the folks of Assam (assured below Article 29) by permitting non-Assamese to settle and achieve citizenship and two, that Part 6A had develop into unconstitutional because of non-implementation over a time period.
By a majority of 4-1, the Supreme Court docket dismissed the challenges and upheld the constitutional validity of Part 6A. The bulk judgments delivered by Chief Justice of India DY Chandrachud and Justice Surya Kant reject all of the arguments raised towards Part 6A. The minority opinion of Justice JB Pardiwala accepts the second argument and holds Part 6A unconstitutional, however solely from the date of the judgment. His opinion, nonetheless, doesn’t disturb the citizenship of those that have already utilized for or obtained the profit below Part 6A.
In upholding Part 6A, the judges within the majority are keenly conscious that Part 6A is woven into the bigger Assam Accord and trying to undo one thread (even assuming the arguments of the petitioners are legitimate) can be a judicial unravelling of what’s basically a political settlement. The Court docket acknowledges that Indian federalism is sufficiently versatile to permit for the Union to have totally different relationships with totally different states, retaining in thoughts the distinctive wants and historical past of every.
The courtroom can also be conscious that placing down Part 6A in its entirety would render numerous folks in Assam stateless, and although it doesn’t explicitly say so, that is clearly a consideration that has weighed on its thoughts. Nonetheless, even whereas upholding Part 6A, the Supreme Court docket appears to need to get itself concerned within the trivialities of figuring out unlawful immigrants and border fencing. We’ve been down this path earlier than.
The courtroom concerned itself deeply within the Nationwide Register of Residents train in Assam, solely to create a brand new set of issues.
The court-monitored NRC train which was speculated to determine all those that have been unlawful immigrants (those that couldn’t hint their ancestry to somebody who was a citizen earlier than March 25, 1971) has recognized 19 lakh residents (or 5.77 per cent of Assam’s inhabitants) as potential non-citizens.
Opposite to standard perceptions, these embody Hindus, Muslims, Assamese audio system, Bengali audio system, tribal peoples and lots of others. Numerous these excluded are married ladies who couldn’t produce paperwork both as a result of they didn’t have them or as a result of such paperwork have been misplaced in floods and different catastrophes.
Opposite to what the Chief Minister of Assam mentioned, even the Hindus amongst these neglected will be unable to get the advantage of making use of for citizenship after the Citizenship Modification Act, 2019. It’s because they will be unable to indicate they got here from Bangladesh earlier than the deadline prescribed in that modification since they don’t have any documentary proof in any respect. It’s doubtless that most individuals neglected of the NRC have been truly born in India and there’s no risk of them being deported en masse to Bangladesh or any nation.
Leaving such numerous folks and their descendants stateless in perpetuity isn’t possible or fascinating. The judiciary can not provide a method ahead on this and it’s as soon as once more for political leaders to step as much as provide Assam a brand new accord — one which assuages cultural and linguistic issues in keeping with the constitutional worth of fraternity.
The author is a co-founder of the Vidhi Centre for Authorized Coverage. Views are private.
