BALANCING HERITAGE AND CITIZENSHIP: AN ANALYSIS OF SECTION 6A AND THE ASSAM ACCORD

 

AUTHORED BY - HIMANSHI DAS

 

 

INTRODUCTION:

The Assam Accord and section Section 6A of the citizenship Amendment Act has a prominent role in the complex issue of citizenship in Assam. In 1985 the Indian government along with the All Assam Students Union and the All Assam Gana Sangram Parishad had drafted the Assam Accord. The Assam Accord demanded the identification and the deportation of the illegal immigrants. The main aim of the Accord was to protect the cultural heritage of the Assamese people whereas Section 6 A was later added to the Citizenship Act of 1955 in December 1985. The section provides a cut off date based on which the people would be granted citizenship of India or expelled.  The petitioners contended the provision to be violative of the principles of equality and fairness. The article gives insights into the provision of Section 6A, the background of Assam Accord and an analysis of the issue contended by the petitions and the verdict delivered by the Constitutional bench.

 

UNDERSTANDING THE ASSAM ACCORD AND SECTION 6A OF THE CITIZENSHIP ACT 1955:

The Assam Accord signed in 1985 is a Tripartite accord that was signed between the Govrnment of India, state government and the leaders of the Assam Movement. The six year old conflict that was initiated by the All Assam Students union (AASU) in 1979 that demanded the identification and deportation of the illegal immigrants from Assam came to an end after the signing of this accord.

Clause 6 of the assam accord states that constitutional, legislative and administrative safeguards would be provided to the protect the heritage and culture of the Assamese people. The committee that was headed by Biplab Kumar Sarma was constituted to define “Assamese people” and the methods to provide them safeguards.  There were several recommendations by the committee among which were that the definition of Assamese people according to the report of the committee is that January 1951 as the cut off date for any citizen residing in Assam to be defined as an Assamese according clause 6. The recommendations also include quotas in government jobs. The report includes regulation of entry of people from other states into Assam that involves Inner Line Permit (ILP) in the state. The inner line permit is basically a permit that is necessary by the people from other parts of India for visiting the state. This is prevalent in Manipur, Arunachal Pradesh, Nagaland and Mizoram. There were several issues involved that included that people who migrated between 1951 and 1971 also including post partition refugees would be accorded the status of Indian Citizens under this Accord and also in the National Register of Citizens, 1951.Also the migrants from East Bengal that entered in Assam before 1951 would also be considered Assamese. But there is no provision to verify that person was in Assam before 1951.

The constitution of India consists of section 6 that deals with the citizenship of those who have migrated from Pakistan to India during the partition. According to this provision anyone who migrates to India before 19th july 1948 would become an Indian Citizen automatically provided that either of their parents or grandparents was born in India. Section 6A provided a special provision for Assam that allowed persons of Indian origin that came from Bangladesh that is before 1st January 1966 and 25th march 1971 and people who were found as foreigners, it was necessary to register themselves which would grant them citizenship after 10 years of residence but in accordance with certain conditions. The provision related to Section 6 is deemed as discriminatory as it levers up the issue of equal treatment if compared to other states that are facing similar immigration issues. This also raised the issue of cultural impact as it gives benefits to the cross border migrants that entered India between 1966-1971, this affects the cultural identity of Aasam due to demographic change.

 

COMPREHENSIVE ANALYSIS OF THE LEGAL ISSUE AND THE SUPREME COURT’S RULING:

The Assam Public Works President and the Assam Sanmilita Mahasangha and others acted as the petioners and challenges the said section 6A as it persuades mass immigration and impacts the demography of Assam. This provision was challenged by the petioners in 2012 as they contended that it is discriminatory as there are different cut off dates that allows the illegal migrants in India.  According to Article 6 of the constitution, any person would be granted citizenship who migrated from Pakistan before 19 July 1948. It was contended that the said provision of section 6A of the Act amended Section 6 as at that time Bangladesh was still a part of Pakistan as on 1st January 1966. This insertion of a new cut off date for granting citizenship would violate the already existing cut off date for immigrants from Pakistan to India.

The constitutional Bench upheld the validity of Section 6A of the citizenship Act by a majority of 4:1 that grants Indian Citizenship to illegal immigrants in Assam.  The validity provided to the provision of Section 6A means that the cut off date will still be the basis of granting citizenships to people coming from Bangladesh and also other nations to Assam. The Cuttoff date according to section 6A is of a much later date and works differently from the constitutional provisions.  According to the verdict the cutoff date that was 24th March 1971 is justified. The operation Searchlight was initiated by the Pakistani Army to defeat the Bangladeshi Nationalist movement in East Pakistan.  The petitioners in the represent case could not prove that 6A harmed the culture of the Assamese people and their ability to safeguard their culture. It was stated that the already existing constitutional provisions protect the cultural and linguistic interests of Assamese people.

The section 6A was enacted under Article 246 and Entry 17 of the Union List that relates to naturalization and citizenship. The issue of the section being discriminatory and violative of Article 14 was reasoned by stating that the migration from Bangladesh and the overall migrant situation was different from the rest of the country. Also it was the Government’s responsibility to execute the detection and deportation of the post 1971 immigrants from Bangladesh. The provision itself cannot be blamed as there exists inadequacy of tribunals and mechanisms for the immigrants. During the upholding of the validity of the section the court also asked the CJI to constitute a bench for the supervision and the implementation of the laws of Assam.

The Article 6 does not take into its ambit the persons who migrated from East Pakistan to Assam after 19 July 1948 and did not apply to register as citizens, the section 6A confers the citizenship on such persons as there are different time frames but the provisions remain the same. Further this provision does not confer citizenship to those who have entered India after 25th March 1971. The cutoff date is practical and logical. There is a distinction between “migrants of partition” and those who have entered after the initiation of the “operation Searchlight” on 25th March 1971. People entering post the cut off date were recognized as illegal.

The claim under Article 29 was also rejected as to claim the violation the this provision cannot be proved due to the presence of certain different ethnic groups in Assam. But there are other constitutional and statutory provisions that exist for the safeguard of the cultural and ethnic heritage.  Certain directions were also provided by the bench that includes that the immigrants who have entered india after the cutoff date that is 25th march 1971 are illegal and should be deported. The section 6A shall be read with the Immigrants Act 1950 to identify the illegal immigrants. The machinery is not sufficient for the effective implementation of Section 6A There should be supervision of the Supreme Court on the implementation of the laws related to the immigration and citizenship.

 

DISSENTING OPINION OF JUSTICE J.B. PARDIWALA:

With the upholding of the constitutional validity there was the Dissenting Opinion of Justice Pardiwala which mainly related to the Section 6A (3) that is for the citizens that entered in India between 1 january 1966 and March 1971. There were several foreigners detected in this time line but these were far lower than the actual number of immigrants that arrived in India at that time. He is of the view that there is no time limit to the provision that is there is no end date after which the citizenship under the said section cannot be availed that is because the burden of detecting foreigners and deleting them from the electoral rolls is not there on the state. In his opinion the verdict would not affect any immigrant including those who arrived before January 1966 and also those who were detected as foreigners between the time line of 1966-1971 and were later granted citizenship.

 

CONCLUSION: A PATH FORWARD

After the constitutional validation of the Section 6A of the citizenship amendment act the main focus falls on the challenges in the implementation of this provision as there are inadequate mechanisms for identifying and deporting the illegal immigrants. The Assam Accord was signed to protect the identity of the Assamese people and balance had to be created between the local population and the migrants that have come to Assam. The critics though argue that the different cut off dates to grant citizenship in Assam defeats the principle of equality and fairness thast is engraved in the constitution. Though the provision is granted a constitutional validation but the debates around its social and political consequences still remains an important point to discuss. There needs to be a intricate balance and a level of harmony between the ethnic and cultural practices of the immigrants and the Assamese local people. Along with it it requires adequate legal bodies and supervision for its harmonious and effective implementation.