Govt granted citizenship to East Pak refugees to save lives, SC told

Mehta is appearing for the Centre and the Assam government in a group of petitions challenging the validity of Section 6A in the Citizenship Act

The Union government brought in a law to grant citizenship to migrants from East Pakistan, who entered Assam up to March 24, 1971, to protect the lives of the residents of Assam as well as that of the foreigners, solicitor general Tushar Mehta submitted in the Supreme Court, adding the 1985 law under the Citizenship Act contemplated a “compromise” based on a mix of political, extra-territorial and national security issues.

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In his written submissions before a five-judge constitution bench led by Chief Justice of India Dhananjaya Y Chandrachud, the law officer maintained that the decision to give citizenship to migrants from East Pakistan, which was declared the independent nation of Bangladesh on March 24, 1971, envisioned tackling a “larger geo-political problem” and was part of the legislative policy of Parliament that stemmed from a political settlement and relevant considerations of State and foreign policy.

“Section 6A the is a manifestation of a compromise resulting from a balance of various competing forces having shades of purely political and extra-territorial and national security issues. It was framed after the events of two wars with a hostile neighbour (Pakistan) and was an attempt to provide succour to all stakeholders involved. In a situation of such a nature, there are always competing forces and competing interests, however it is not always possible to ensure satisfaction of everyone involved. It is therefore an arrangement, in some ways, where all stakeholders have compromised in some manner or the other,” stated the submissions by SG.

Section 6A is a special provision inserted into the 1955 Citizenship Act on December 7, 1985, based on the Assam Accord -- a tripartite agreement between the then Rajiv Gandhi-led central government, the Assam government and All Assam Students Union (AASU). It came at the end of a six-year-long agitation by AASU to identify and deport illegal immigrants, mostly from neighbouring Bangladesh. The special provision allowed people who entered Assam between January 1, 1966, and March 25, 1971, and who were residing in the state, upon being detected as foreigners, to register themselves as Indian citizens. Upon registration, such people would have the same rights and obligations as a citizen of India but would not be entitled to be included in any electoral roll for 10 years. Those who came prior to January 1, 1966, were granted deemed citizenship.

Mehta is appearing for the Centre and the Assam government in a group of petitions challenging the validity of Section 6A in the Citizenship Act, averring that the provision adversely impacts various rights of the indigenous residents of Assam, including right to equality, right to electoral democracy and right to protect cultural identities. The petitioners, including Assam Public Works and others argued that the special provision was in violation of Article 6 of the Constitution which fixed the cut-off date for granting citizenship to immigrants as July 19, 1948. One of the parties in the case, Assam Sanmilita Mahasangha, a Guwahati-based civil society organisation, sought the updation of the National Register of Citizens (NRC) for Assam on the basis of the 1951 NRC and not the electoral rolls of March 1971.

The CJI-led bench was expected to begin hearing the case on Tuesday, but adjourned it to December 5 after S-G Mehta, along with some other lawyers appearing in the matter, jointly made a request for a deferment. The issue was referred to the constitution bench in 2015.

While making a request for adjournment, the S-G said that he would be opposing the petitions on the ground that the amendment was being challenged after more than two decades. Mehta added that the court would have to first examine if the petitioners could be allowed to belatedly challenge legislative action enforced nearly 30 years ago, on the basis of facts which occurred more than 50 years back.

In his submissions, the S-G maintained that striking down Section 6A at this late stage would have “far-reaching consequences”.

Mehta’s submissions highlighted that the Assam Accord was given effect to in the wake of loss of thousands of lives due to conflict between the migrants and the people of Assam. “Section 6A, as a result of the Assam Accord, is a balance that was arrived to further the holistic life and liberty rights of all the residents of Assam...By the said provision, the Parliament provided a quietus to the then burning issue of foreigners in Assam and saved the lives of both the aliens as well as citizens in the state of Assam,” he added.

According to Mehta, there is no contravention of the right to vote or the right to contest of the residents of Assam by granting citizenship to the migrants from Bangladesh with a cut-off at March 24, 1971 because Section 6A grants deemed citizenship to such migrants, according them equal rights in electoral democracy.

On the alleged violation of the right under Article 29 for conserving linguistic, scripture or cultural identity, the S-G said that making migrants prior to 1971 citizens of India would not impede any of this.

“It is submitted that “culture” is a fluid and ever-changing concept. It cannot be said to be limited by time or geography. In a case wherein Parliament has exercised the special constitutional discretion, Article 29 would not impede the exercise of such power considering the wide expanse of the term ‘culture’...Article 29 would have to be interpreted on a broader canvass and must include the protection and conservation of culture of all Assamese People including various tribes and all social groups residing within Assam,” he submitted.

The S-G further underlined that the right of a country to admit or to expel a foreigner from its territory according to the interests of the nation State has been characterized as an inherent attribute of the sovereignty of every country.

“In fact, the issue of extending any privilege to any non-citizens is deeply embedded in the concept of sovereignty itself. The concept of sovereignty includes the right of a nation, as per its discretion, to allow, disallow or remove non-citizens. The said sovereign decisions are based on factors which do not have any judicial character are may hence, be beyond the rigours of judicial review,” he contended.