Today (17 December 2014), a two-judge bench of the Supreme Court (Justice Ranjan Gogoi and Justice R.F. Nariman) has passed a judgment in certain writ petitions filed under Article 32 of the Constitution (by Assam Sanmilita Mahasangha and others), relating to the issue of illegal Bangladeshi migrants in Assam. Certain issues raised in these petitions have been referred to the Constitution bench of the Supreme Court for an authoritative decision, while certain directions have been issued for immediate implementation of some aspects of the Assam Accord signed in 1985.
The main issue in this petitions was the constitutional validity of Section 6A of the Citizenship Act, which was inserted in the said Act in 1985 in pursuance of the Assam Accord which was signed on 15 August 1985, between AASU, AAGSP, Central and State Government of Assam on the Foreigner Problem issue, in the presence of the then Prime Minister Shri Rajiv Gandhi. The said Section 6A made special provisions as to citizenship of persons covered by the Assam Accord. In particular, sub-section (2) provides for granting citizenship to persons of Indian origin who came to Assam before 1st January 1966. Some-section (2) of the said Section 6A is reproduced as under:
“(2) Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the 1st day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day of January, 1966.”
The validity of this section had been challenged in these petitions on various grounds. In its judgment, the Supreme Court rejected the preliminary objection of the Government of India on the question of delay in challenging the validity of the said section.
On merits, this judgment can be divided into two parts. The first part refers certain important issues raised in these petitions to be decided by a Constitution bench of five-judges of the Supreme Court. The second part gives certain directions to the Government for immediate implementation of certain aspects of the aforesaid Assam Accord.
Following issues of importance have been referred by this two-judge bench to a Constitution bench of the Supreme Court:
“(i) 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, 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)?
(ii) 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;
(iii) 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)?
(iv) 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?
(v) 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 regularizing illegal migrants who enter Assam as opposed to the rest of the country; and
(vi) 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.
(vii) Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?
(viii) 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?
(ix) 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?
(x) 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?
(xi) 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 (Tribunals) Order, 1964 made thereunder?
(xii) Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law?
(xiii) 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?”
In the second part of the aforesaid judgment, the Supreme Court proceeded by presuming the validity of the aforesaid Section 6A of the Citizenship Act (until this question is decided by the Constitution Bench) and issued certain directions for immediate implementation of certain aspects of the Assam Accord to prevent the influx of the illegal Bangladeshi migrants into Assam. The directions are as under:
“I. Border fencing, Border Roads and provision for flood lights
The Union will take all effective steps to complete the fencing (double coiled wire fencing) in such parts/portions of the Indo-Bangla border (including the State of Assam) where presently the fencing is yet to be completed. The vigil along the riverine boundary will be effectively maintained by continuous patrolling. Such part of the international border which has been perceived to be inhospitable on account of the difficult terrain will be patrolled and monitored at vulnerable points that could provide means of illegal entry. Motorable roads alongside the international border, wherever incomplete or have not yet been built, will be laid so as to enable effective and intensive patrolling. Flood lights, wherever required, will also be provided while maintaining the present arrangements. The completed part of the border fencing will be maintained and repaired so as to constitute an effective barrier to cross border trafficking.
The progress achieved at the end of 3 months from today as against the position on the ground mentioned in the affidav it of the Union extracted above will be monitored by this Court and, depending on what is revealed upon such monitoring, further directions including a definite time schedule for completion of the works relating to border fencing, border roads and flood lights may be made by this Court.
II. Foreigners Tribunals
The Gauhati High Court is requested to expedite and to finalise the process of selection of the Chairperson and Members of the Foreigners Tribunals, if required in phases, depending on the availability of officers opting to serve in the Tribunals. Within 60(sixty) days of the selection being finalized by the Gauhati High Court, the State of Assam will ensure that the concerned Foreigners Tribunal become operational.
The Chief Justice of the Gauhati High Court is requested to monitor the functioning of the Tribunals by constituting a Special Bench which will sit at least once every month to oversee the functioning of the Tribunals.
III. Existing Mechanism of Deportation of Declared Illegal Migrants
While taking note of the existing mechanism/procedure for deportation keeping in view the requirements of international protocol, we direct the Union of India to enter into necessary discussions with the Government of Bangladesh to streamline the procedure of deportation. The result of the said exercise be laid before the Court on the next date fixed.”
The Supreme Court has directed to list his petitions again in the last week of March 2015 to take note of the progress of the implementation of the directions.
The aforesaid judgment of the Supreme Court is authored by Justice R.F. Nariman.
Full judgment of the Supreme Court is reproduced below.
SC order dated 17 December on Illegal Bangladeshis Case by Tilak Marg
