The landmark judgment by the Constitution Bench of the Supreme Court upholding the constitutional validity of the Section 6A of the Citizenship Act, 1955 has brought finality to the cut-off date based on which the National Register of Citizens (NRC) in Assam was updated and published in 2019.
The NRC updated under SC monitoring included names of 3.11 crore applicants and excluded names of 19.06 lakh applicants but disposal of claims and objections are yet to be started with petitions seeking review of the updated list still pending before the apex court.
The cut-off date for determining the eligibility for inclusion on the updated NRC list is March 25, 1971. This is also the cut-off date for detection, deletion of names from electoral rolls, and expulsion of undocumented Bangladeshi migrants from Assam in accordance with the historic Assam Accord signed in 1985.
The Section 6A was inserted into the Citizenship Act on December 7, 1985, through the Citizenship Act (Amendment), 1985 to incorporate legal provisions of the Assam Accord clauses for granting citizenship to undocumented migrants from erstwhile East Pakistan who entered the state during the period of 1966-1971.
A Division Bench of the Supreme Court on August 13, 2019, comprising of then Chief Justice Ranjan Gogoi and Justice Rohinton Fali Nariman ruled that the NRC would be updated subject to orders as may be passed by the Constitution Bench on petitions challenging the constitutional validity of Section 6A of the Citizenship Act.
The Constitution Bench headed by Chief Justice of India D.Y. Chandrachud through a majority verdict ruled that, “The two yardsticks employed in Section 6A, that is migration to Assam and the cut-off date of 24 March 1971 are reasonable.”
“Though other states share a greater border with Bangladesh, the impact of migration in Assam in terms of numbers and resources is greater. Thus, the yardstick of migration to Assam is reasonable. The cut-off date of 25 March 1971 is reasonable because the Pakistani Army launched Operation Search light to curb the Bangladeshi nationalist movement in East Pakistan on 26 March 1971. Migrants before the operation were considered migrants of the Indian partition,” the apex court said in the judgment and added that both the yardsticks have a rational nexus with the object of Section 6A.
The petitioner Assam Sanmilita Mahasangha challenged the constitutional validity of the Section 6A and sought direction by the SC to update the NRC in Assam with 1951 as the cut-off year for determining eligibility of Indian citizenship instead of 1971. The organisation insists that when NRC for the entire is to be prepared by taking 1951 as the base year, updating the citizenship register in Assam with 1971 as a base year under the provision of 6A is discriminatory and arbitrary.
The insertion of 6A led to framing of Rule 4A of the Citizenship Rules 2003 which are applicable only in Assam. The Rule 4A provides for determining the eligibility of NRC applicants based on 1951 NRC in Assam and Electoral Rolls up to March 24, 1971, for the purpose of updating the citizenship list.
The petitioners also argued that Section 6A instead of preventing migration incentivises it and burdens Assam with the obligation of accommodating “illegal migrants” and is violative of constitutional provisions as it infringes on the rights of Assamese community and led to marignalisation and disruption of socio-economic aspirations of indigenous people of the state.
The SC, however, states in the judgment: “The NRC consolidates together the names of all citizens in relation to the State of Assam. At the same time, it is a process for the detection of foreigners. The Citizenship Act and the Rules framed thereunder and the Foreigners Act form a scheme on Indian citizenship which must be read as a whole.”
The apex court also held that Section 6A when read along with the larger statutory regime surrounding citizenship and immigration, mandates timely detection and deportation of illegal immigrants, a large portion of whom entered Assam post-1971.
While the SC judgment has settled the legal question of cut-off year for NRC final list in Assam, the political debate over the cut-off year 1971 of the Assam Accord will not fade out immediately with the ruling Bharatiya Janata Party and other affiliates of the Sangh Parivar pushing for 1951.
The BJP-led coalition government headed by Himanta Biswa Sarma government has accepted the recommendation of the Justice (retd) Biplab Sarma High Level Committee on Clause 6 of the Assam Accord for taking 1951 as the base year the purpose of identifying who is an Assamese for implementation of various recommendations of the committee to be implemented by it.
The SC judgment upholding 1971 as the cut-off year for detection of illegal immigrants has also put the spotlight on petitions challenging validity of the Citizenship (Amendment) Act, 2014 which provides for granting citizenship to non-Muslim migrants from Bangladesh, Pakistan and Afghanistan who have entered India on or before December 31, 2014.
Until the disposal of the petitions seeking review of the updated NRC and constitutional validity of CAA, the political debate around the cut-off year for identification of undocumented migrants and determination of Indian citizenship will be very much alive and dominate electoral discourse in the state.
Sushanta Talukdar is a senior journalist and political analyst based in Guwahati.
Views expressed in this article are those of the author and do not purportedly reflect the views of THE WEEK.