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Synopsis

The Supreme Court on December 7, 2023, asked the Union government to explain the steps taken by it at the administrative level to deal with illegal immigration into the territory of India including the North-Eastern States, particularly, in Assam.

A five-judge Constitution bench led by Chief Justice of India DY Chandrachud also sought to know the extent of border fencing which has been carried out; the steps which the Union Government intends to take to complete the exercise of border fencing; and the estimated timelines to complete the exercise of border fencing.

The top court posed the queries while hearing a batch of petitions assailing the constitutional validity of Section 6A of the Citizenship Act 1955. 

The case registered as 'In Re: Section 6A of the Citizenship Act, 1955' is being heard by the bench which also comprised Justices Surya Kant, M M Sundresh, J B Pardiwala, and Manoj Misra.

In their plea, the petitioners have raised the issue of the impact of illegal immigration into Assam, inter alia, on the demographics and the cultural fabric of the State. Other submissions include the validity of the provision on the anvil of Articles 14, 21, 29 and 355 of the Constitution.

"At this stage, it is necessary to have certain data-based disclosures by the Union Government in the Ministry of Home Affairs. Where a specific aspect of the data which has been sought by this order implicates the functions of the State Government, the data shall be shared by the Government of Assam with the Ministry of Home Affairs," the bench said.

Solicitor General Tushar Mehta indicated that a common affidavit would be filed both on behalf of the Union of India and the State of Assam.

The bench, thus, ordered that an affidavit should be filed before the top court on or before 11 December 2023.

The court sought information on the number of persons to whom citizenship has been granted under the provisions of Section 6A(2), namely, persons who came into Assam between 1 January 1966 and 25 March 1971;

It also sought to know as to how many persons have been detected to be foreigners by an order of the Foreigners Tribunal under the Foreigners (Tribunal) Order 1964 with reference to the period of 1966 – 1971 and the estimated inflow of illegal migrants into India, including but not confined to the State of Assam after 25 March 1971.

In respect of persons who are alleged to have entered India, including the State of Assam, after 25 March 1971, the bench sought information on the total number of Foreigners Tribunals, set up by the Union/State Government(s) and as to how many are functioning at present; the total number of cases which have been disposed of; the number of cases which are pending as of date.

The court also sought to know the average time taken for the disposal of cases; and the number of cases which are pending before the Gauhati High Court arising from orders of the Foreigners’ Tribunals.

In its order, the bench said that the provisions of Section 6A of the Citizenship Act 1955 can broadly be bifurcated in three time periods: (i) the period prior to 1 January 1966 (Sub-section 2); (ii) the period between 1 January 1966 and 25 March 1971 (Sub-section 3); and (iii) the period from 26 March 1971.

"Section 6A has provided for the grant of citizenship to persons of Indian origin, originating in the specified territory who have entered Assam between the statutory time periods, as set out in (i) and (ii) and who have been ordinarily residents of Assam after the date of entry," the bench said.

"The distinction between sub-section (2) and sub-section (3) of Section 6A is that the grant of citizenship under sub-section (3) is contingent on additional condition, namely, detection by the Foreigners Tribunal under the Foreigners (Tribunal) Order 1964 and registration," the bench noted.

Upon being detected as a foreigner, sub-section (3) contemplates that such an individual must be registered in accordance with the rules made by the Central Government under Section 18. Sub-section (4) of Section 6A stipulates that such an individual would be entitled to the same rights and obligations as a citizen of India, but would not be entitled to entry in the electoral roll for a period of ten years. Upon the expiry of ten years, the person registered under sub-section (3) would be deemed to be a citizen of India for all purposes, the court further noted.

The bench pointed out that the third period is after 26 March 1971. 

"The provisions of Section 6A make it abundantly clear that the conferment of deemed citizenship does not extend to such persons who have entered on or after 26 March 1971," it said.

Case Title: In Re: Section 6A of the Citizenship Act, 1955