Constitution Bench Passes Interim Order Seeking Status Of Border Fencing, Steps Taken To Deal With Illegal Immigration Into Northeast States

In the ongoing hearing of a batch of Petitions challenging Section 6A of the Citizenship Act 1955, the Constituion Bench of the Supreme Court today directed the Union Government to provide comprehensive data on the influx of illegal migrants into Assam and the North-Eastern states post March 25, 1971.

The Bench of Chief Justice DY Chandrachud, Justice Surya Kant, Justice MM Sundresh, Justice JB Pardiwala and Justice Manoj Misra stated to the Solicitor General Tushar Mehta, "We will dictate a small order right now. You said you will file an affidavit of the Home Secretary on Saturday, but there are some specific aspects on which we want some data...it is not an affidavit of submission, but we want something based on data."

The Court accordingly directed, "The provisions of Section 6A of the Citizenship Act, 1955 can broadly be bifurcated in 3 time periods; (1) the period prior to 1 January 1966, (2) the period between 1 January 1966 to 25 March, 1971, (3) the period from 26th March, 1971. The above statutory provision has provided for the grant of citizenship to persons of Indian origin, originating in the specified territory; who have entered Assam between the relevant statutory time periods and who have been ordinary residents of Assam after the date of entry. The distinct between sub-section 2 and sub-section 3 of Section 6A is, that the grant of citizenship under sub-section 3 is contingent on an additional condition namely the detection by a foreigner tribunal under the Foreigners Order, 1964. Upon being detected as a foreigner, sub-section 3 contemplated that such an individual must be forced to register in accordance with rules made by the Central Government under Section 18."

The Bench further stated, "Sub-section 4 of 6A stipulated that such an individual would be entitled to the same rights and obligations as a citizen of India but will not be entitled to an entry in the electoral rolls for 10 years upon the expiry of which the person registered under Section 3 would be deemed to be a citizen of India for all purposes. This court is in the process of considering arguments challenging the constitutional validity of Section 6A. The third period is after 26th March 1971, the Provisions of Section 6A make it abundantly clear that the conformant of deemed citizenship does not extend to such a person, while the arguments raising the constitutional challenge which form the core of controversy have been urged before the Court in regard to the illegal immigration in Assam both in the demographics and cultural fabrics of the State. Inter alia, there are other submissions which have been urged including the validity of the provision on the anvil of articles 14,21, 29 and Article 355 of the Constitution."

Observing the aforementioned, the Court directed, "At this stage, we are of the considered view that it would be necessary for the Court to have certain data-based disclosures by the Union Government in the Ministry of Home Affairs, we accordingly direct that an affidavit be filed on or before Monday on the following aspect: 1) The number of persons to whom citizenship has been granted under the provisions of Section 6A, namely with reference to the time period of persons who came into Assam between 1 January 1966 and 25th March 1971, 2) How many persons have been detected to be foreigners by an order of the Tribunal under the Foreigners Tribunals Order 1964 with reference to the above period of 1966-71, 3) The estimated inflow of illegal migrants into India, including but not confined to the State of Assam after 25th March 1971  4) In respect of persons who are alleged to have entered India including the state of Assam after: a) the total number of foreigners tribunals set by the Union, b) the total number of cases which has been disposed of c) the number of cases which are pending as of date d) the average time taken for disposal of cases e) the number of cases pending before Gauhati High Court and the steps taken by Union Government at adminsitravite level to deal with illegal immigration into the territory of India from the northeastern states."

The CJI also directed, "Details shall be furnished in regard to the action taken for border fencing carried out and the steps Union government intents to take with estimated timelines to complete the exercise of border fencing."

Section 6A of the Citizenship Act deals with the citizenship of people covered under the Assam Accord. Migrants who came to Assam between January 1, 1966 and March 25, 1971 from Bangladesh and since then are residents of the state, must register themselves under section 18 for acquiring Indian citizenship. Hence the provision fixes March 25, 1971 as the cut-off date for granting citizenship to Bangladeshi migrants in Assam.