The petitions against Section 6A primarily challenge provisions of the Assam Accord which formed the basis of the National Register of Citizens (NRC) in Assam, published in 2019.
Solicitor General (SG) Tushar Mehta appearing for the Centre requested the top court to defer the hearing in the case that was to be taken up by a constitutional bench on November 7.
Just a day before the petitions were to be heard, the SG mentioned before the court. “I am mentioning the matters coming tomorrow. These are constitutional matters regarding Section 6A of Citizenship Act…Mr Kapil Sibal is also here. We have both just concluded pleading in constitutional matters (Electoral Bonds case). We need some more time. And then this is the last week before Diwali breaks…” The SG submitted before the court.
Senior Advocate Indira Jaising appearing for the petitioners said that a preliminary issue has already been raised.
CJI D.Y. Chandrachud said that assembling a constitutional bench is very difficult. And the request will require rearranging the whole roster.
However, SG Mehta persisted on his request, and the court eventually decided to keep the hearing on December 5.
In September, a five-judge Constitution Bench led by CJI D.Y. Chandrachud passed procedural directions in the batch of petitions challenging Section 6A of the Citizenship Act, 1955.
In January, the top court observed that the primary question in the case was “whether Section 6A of the Citizenship Act 1955 suffers from any constitutional infirmity.”
What is the challenge to Section 6A?
In 1985 the Rajiv Gandhi government at the Centre signed an accord with Assam student leaders which required amendment to Section 6 of the Citizenship Act following a prolonged agitation against illegal Bangladeshi immigrants in the state. The amended Section 6A provided that “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”.
According to clause 5 of the Assam Accord, January 1, 1966 shall serve as the base cut-off date for the detection and deletion of “foreigners”. However, it also makes provisions for the regularisation of individuals who arrived in Assam after that date and up till March 24, 1971.
So, section 6A makes March 24, 1971 as the cut-off date for entry into the state, making those people who entered the state after that date “illegal immigrants”.
Assam is the only state in India to have such a cut-off date. The Bench will now decide on the constitutional validity of Section 6 A. The Assam NRC of 2019 was conducted on the basis of provisions of Section 6A.
Notably, Section 6A stands in contrast to Section 3 of the Citizenship Act. The plea challenging section 6A wants 1951 to be made as the cut-off date for inclusion in the National Register of Citizens instead of 1971.