Sec 6A conundrum in Assam

Last week, a Constitution Bench of five judges of the Supreme Court started hearing a case challenging the constitutionality of Section 6A of the Citizenship Act, 1955. This is a peculiar and complicated provision inserted into the law in 1985 and applicable only to Assam. Assamese organisations argue that it is unconstitutional and shouldn’t apply to Assam at all. To understand the controversy, we have to start with a bit of history.

As I’ve pointed out before, the Constitution only says that those who had been living within the territory of India when the Constitution came into force would be “citizens” of India. The founding fathers left it to parliament to make laws in the future as to who could be a citizen of India. The 1955 law therefore provides the conditions for getting citizenship by birth, by descent, or by registration. Since everyone who was living in India on 26 January, 1950, is a citizen of India according to the Constitution, this is the “cut-off” date for establishing citizenship by birth or descent.

Section 6A, which applies to Assam, however, has a different cut-off date. In fact, it has two different cut-off dates. For those in Assam, the cut-off date for citizenship is moved from 26 January, 1950, to 1 January, 1966. For those who illegally moved to Assam between 1 January, 1966, and 25 March, 1971, and who have been found to have been “foreigners” are given a sort of “suspended” citizenship -- that is, they will become full citizens only 10 years from the date on which they have been found to be “foreigners”. For those who came to Assam illegally after 25 March, 1971, the rest of the Citizenship Act applies and they cannot become citizens of India under law.

Why these two cut-off dates? The answer lies in the complex history of migration in Assam.

Pre-Partition, Assam was a part of Bengal province and the influx of Bengali speakers from what is now Bangladesh under British rule sparked tensions between Assamese and Bengalis. These tensions had to do with fears of the Assamese that they were being dominated by Bengali speakers -- a fear expressed in the Constituent Assembly as well. Members from Assam, such as Rohini Kumar Chaudhari and Kuladhar Chaliha, conveyed the sentiments of Assamese on the tricky question of who should be allowed to live and settle in Assam as citizens of India. But because the final decision on who could be a citizen was left to parliament, there was no closure on this issue. Post-1950, with India-Pakistan hostilities limiting free movement of people between what became East Pakistan and Assam, the issue didn’t get as much prominence.

However, after the Bangladesh War in 1971, with the borders relatively more relaxed between newly independent Bangladesh and India, the movement of people into Assam increased. Tensions in Assam blew over in 1979 resulting in bloodshed and violence aimed at “outsiders” in the state. The violence only started to die down as a result of the Assam Accord in 1985 between the Government of India and leaders of the Assam movement.

One of the key clauses of the Assam Accord related to citizenship -- an issue that saw much disagreement between the parties. The key point of disagreement was the cut-off date -- the Assam movement wanted the cut-off date to be 1950 but the Indian government wanted it to be 1971. Eventually, a compromise was reached -- one that acknowledged the concerns of the Assam movement about the need to identify and deport foreigners, and also the humanitarian concern over attempting to move multiple generations of people out of the only country they had known. This is why Section 6A has two cut-off dates and is applicable only to Assam.

Section 6A was therefore the result of a political compromise, and political compromises are always messy. That doesn’t make it a bad thing or unconstitutional. It’s an example of a situation where the Constitution does not provide clear answers to difficult problems. The Constitution-makers have only left us a baseline and the broad framework to find political solutions to our problems. Here, the Constitution is a guide, but the path will still have to be walked by us.