ILLEGAL IMMIGRANTS

• An illegal immigrant is a person who enters or resides in a country without fulfilling the legal requirements for immigration.
• This can involve entering a country without proper documentation, staying beyond the permitted period of a visa, or working without authorization.
• However, it's important to note that the term "illegal immigrant" is often considered controversial and dehumanizing.
• It can contribute to negative stereotypes and discrimination against immigrants, regardless of their legal status.
• Instead, it's preferred to use terms like undocumented immigrant, irregular migrant, or unauthorized migrant.
• These terms are more neutral and focus on the individual's legal status rather than their character or potential threat.

3. Who is a Citizen?

The ongoing hearings before a Constitutional bench, led by Chief Justice of India DY Chandrachud, are centred on a legal challenge to Section 6A of the Citizenship Act. This provision, introduced following the signing of the Assam Accord in 1985, has become a focal point for determining who is considered a foreigner in the state. The Accord's criteria, including the cutoff date and regularization provisions, also formed the basis for the final National Register of Citizens in Assam, released in 2019.

Key Elements of the Challenge

• Clause 5 of the Assam Accord designates January 1, 1966, as the base cutoff date for identifying and removing "foreigners" in the state. This clause also incorporates provisions for the regularization of individuals who arrived in Assam after that date but before March 24, 1971.
• Section 6A of the Citizenship Act was added as an amendment to accommodate the provisions of the Assam Accord. It establishes March 24, 1971, as the definitive cutoff date for entry into the state. Anyone entering Assam after this date is considered an "illegal immigrant."

Implications for Those Arriving Between 1966 and 1971

• Individuals arriving in Assam on or after January 1, 1966, but before March 25, 1971, from Bangladesh would be identified as "foreigners."
• They are granted the opportunity to register themselves based on rules established by the Central Government.
• While excluded from electoral rolls, they are afforded the same rights and obligations as Indian citizens for 10 years from the date of being identified as foreigners.
• After these ten years, they are to be recognized as citizens.

5. Legal Challenge to Section 6A

The challenge to Section 6A of the Citizenship Act revolves around its constitutional validity, primarily brought forth by the Assam Sanmilita Mahasangha (ASM), an organization championing the rights of "indigenous" communities in Assam. The central contention is that the establishment of a different cutoff date for Indian citizenship in Assam (1971) compared to the rest of India (July 1948) is deemed "discriminatory, arbitrary, and illegal." The petition argues that this provision violates the rights of indigenous Assamese people.

Key Arguments and Concerns

• The plea calls for the establishment of 1951 as the cutoff date for inclusion in the National Register of Citizens (NRC) instead of 1971, aligning it with the rest of India. This move aims for uniformity in citizenship criteria.
• ASM asserts that the application of Section 6A exclusively to Assam has resulted in a significant demographic shift, reducing the indigenous people of Assam to a minority in their own state. This demographic change is perceived as detrimental to the economic, political, and cultural well-being of the state.
• ASM contends that the NRC process, guided by the cutoff date of Bangladesh's independence in 1971, has favoured a large number of Hindu and Muslim Bengalis and Nepalis who migrated from East Pakistan. This has allegedly resulted in the illegal occupation of lands belonging to indigenous tribes, impacting their cultural survival, political control, and employment opportunities.

The challenge to Section 6A raises several significant constitutional issues, which will be explored by the five-judge bench of the Supreme Court. These issues touch upon various fundamental rights and principles enshrined in the Indian Constitution.

• Whether Section 6A, by establishing a different cut-off date for Assam than stipulated in Article 6 of the Constitution, violates Articles 10 and 11, which deal with the right to move freely and reside in any part of India.
• This raises questions about whether this deviation requires a formal "variation" of Article 6 itself, or if it can be justified under existing legal provisions.
• Does Section 6A dilute the political rights of the Assamese people by potentially altering the demographic balance through the naturalization of migrants? This involves interpreting Articles 325 and 326, which guarantee the right to vote and reservation of seats for Scheduled Castes and Scheduled Tribes, respectively.
• Does Section 6A violate the fundamental right of indigenous communities to conserve their culture, as enshrined in Article 29(1)? This brings up the scope of this fundamental right and its application in the context of a changing demographic landscape.
• Does an influx of illegal immigration constitute "external aggression" or "internal disturbance" as defined in Article 355, which empowers the Union to protect states from such threats? This question delves into the interpretation of Article 355 and its relevance to the Assam situation.
• Does Section 6A unfairly single out Assam by applying a different cut-off date than other border states, thereby violating the right to equality under Article 14? This necessitates evaluating the justification for such a distinction and its potential discriminatory effects.
• Does the influx of immigrants, as facilitated by Section 6A, adversely affect the lives and personal liberty of Assamese citizens under Article 21? This examines the potential negative impact of immigration on various aspects of life and liberty in the state.
• In granting relief under Article 32, should the court consider the delay in challenging Section 6A? This involves weighing the principle of timely justice against the complexity of the legal issues and potential consequences of delayed action.
• After decades of migrant presence and naturalization, can any meaningful relief be granted without causing undue prejudice to individuals already integrated into society This raises questions about balancing legal principles with the realities of human lives and the potential for disruption caused by retroactive changes.
• Does Section 6A violate the basic premise of the Citizenship Act by potentially allowing individuals to retain their citizenship in Bangladesh while becoming Indian citizens? This relates to the interpretation of Section 5 of the Act and its requirement for full renunciation of foreign citizenship.
• Does Section 6A contravene the provisions of Section 5 by granting citizenship without requiring an oath of allegiance or ensuring reciprocity from Bangladesh? This involves evaluating the legal basis for these requirements and their potential application in the case of Section 6A.
• Does the specific nature of the Immigrants (Expulsion from Assam) Act exclude the General Foreigners Act and its associated tribunals from dealing with migrant issues in Assam? This question focuses on the legal framework applicable to immigration within the state and its consistency with national laws.
• Does Section 6A undermine the rule of law by prioritizing political considerations over legal principles? This raises concerns about the potential for political pressure to influence lawmaking and its impact on the balance of legal authority.
• Does Section 6A violate Article 14 by failing to establish a clear and transparent mechanism for determining individuals' eligibility for citizenship based on their residency in Assam? This centres on the potential for arbitrary decision-making and its impact on the fundamental right to equality.