Role of Supreme Court

The NRC case: The Supreme Court's role

Print edition : October 11, 2019

Assam Chief Minister Sarbananda Sonowal with Union Home Minister Amit Shah along with Nagaland Chief Minister Neiphiu Rio at the fourth conclave of the North East Democratic Alliance in Guwahati on September 9. Photo: Ritu Raj Konwar

Members of the All Assam Student Union protesting against the Citizenship Amendment Bill 2016 in Guwahati on January 23. Photo: Ritu Raj Konwar

In the NRC case, the Supreme Court should have played the role of a neutral arbiter to check whether the government is acting in consonance with the principles of international law. But its present position leaves no further legal remedy for those who may be illegally deported.

IN the public discourse on the National Register of Citizens (NRC) in Assam, the Supreme Court’s role is crucial. The question whether the court played it in consonance with its constitutional mandate or exacerbated the fears and insecurities that the NRC process generated has to be answered with due regard to facts. 

The first case that the Supreme Court decided and which determined the contours of the discourse on the NRC was Sarbananda Sonowal vs Union of India. In this case, a three-judge bench comprising Justices R.C. Lahoti, G.P. Mathur and P.K. Balasubramanyan, on July 12, 2005, declared as unconstitutional the Illegal Migrants (Determination by Tribunals Act), 1983, (IMDT Act) and its corresponding rules, which also dealt with illegal immigration in Assam. 

The petitioner, Sonowal, is currently the Bharatiya Janata Party’s (BJP) Chief Minister of Assam. He is a former president of the All Assam Students Union, the largest non-political students’ organisation in the State, which was responsible for leading the student movement in Assam on the issue of immigrants in the late 1970s and early 1980s. Sonowal is also a former chairman of the North East Students Organisation, an umbrella organisation of students’ associations from Assam, Meghalaya, Manipur, Nagaland, Tripura and Arunachal Pradesh, and was actively involved in issues concerning the rights of the people of Assam, including the question of illegal migrants settled in the State. In his public interest litigation (PIL) petition, Sonowal contended that the IMDT Act was wholly arbitrary and unreasonable and that it discriminated against citizens in Assam, making it impossible to detect and deport foreigners from Indian soil. He argued that while the Foreigners Act, 1946, applied to all foreigners throughout India, the IMDT Act, which was enacted subsequently with the professed aim of making detection and deportation of illegal migrants in Assam easier, had failed to meet even the standards prescribed in the Foreigners Act. 

Invoking Article 355

In Sarbananda Sonowal, the Supreme Court invoked Article 355 of the Constitution to strike down the IMDT Act that would have placed the burden upon the state in a foreigner’s case. The court thus established a constitutional requirement that the burden would always lie on the individual to rebut the allegation that he/she was a foreigner. The court’s rationale for doing so was that it would be difficult for the state to give an exact date of entry of a foreign national who had surreptitiously crossed the Indian border and that the court could not remain a mute spectator to the continuing influx of illegal migrants.

Article 355 casts a duty upon the Centre to protect every State against external aggression and internal disturbance. Relying upon a 1998 report by the Governor of Assam, the Supreme Court held in this case that there was a flood of Bangladeshi migrants into Assam, which the Act could not check. If an Act has the disastrous effect of giving shelter and protection to foreign nationals who have illegally transgressed the international border and are residing in India, any citizen is entitled to bring it to the notice of the court by filing a writ petition, the court said. In effect, it justified the PIL filed by Sonowal, whose political motives were questioned by the then Central and Assam governments. 

Foreigners (Tribunals) Amendment Order

In Sarbananda Sonowal (II) v Union of India, the Supreme Court bench comprising Justices S.B. Sinha and P.K. Balasubramanyan struck down on December 5, 2006, the Foreigners (Tribunals) Amendment Order, 2006, as unnecessary and unreasonable. This order required the Foreigners Tribunal to first consider whether there were sufficient grounds for proceeding against a person suspected of being an illegal migrant and only on the Tribunal being satisfied that the basic facts were prima facie established could a notice be issued to the person concerned. This was not essential in the Foreigners (Tribunals) Order, 1964, which the 2006 order sought to amend.

The Supreme Court held in Sonowal (II) that there was a lack of will in ensuring that illegal immigrants were sent out of the country. It found the 2006 amendment Act, which sought to make the Foreigners (Tribunals) Order, 1964, inapplicable to Assam, discriminatory and violative of Article 14 of the Constitution. The Centre submitted in this case that if it earlier had an option to refer a matter to the tribunal, the 2006 amendment made it mandatory to refer it to the tribunal without making any enquiry whatsoever. The Foreigners Tribunal, being a quasi-judicial authority, would be in a better position to judge whether there was a prima facie case against a suspected foreigner to warrant issue of notice, it said. More significantly, the Centre claimed that Article 21 of the Constitution was applicable to a person who had already set foot in India, and therefore, he or she would be entitled to claim compliance of the principles of natural justice. 

However, the Supreme Court not only rejected the idea of making such a claim but reiterated its view that uncontrolled immigration posed a threat to the integrity of the nation. The court reasoned that all the facts required to prove one’s citizenship, namely, date of birth, place of birth, name of parents and grandparents, and their place of birth and citizenship, would necessarily be within the personal knowledge of the person concerned and not of the authorities of the state. 

On August 13, the Supreme Court relied on these two decisions to justify its intervention in the petition filed by Assam Public Works, which it had been hearing for long, to complete the NRC process within the stipulated deadline.

Vexed issue

A vexed issue was whether to grant citizenship purely by birth, and not by descendance. Section 3(1)(a) of the Citizenship Act, 1955, deals with the acquisition of citizenship by birth in the case of every person born in India on or after January 26, 1950, but before July 1, 1987. The purport and effect of this provision is pending consideration before a Constitution Bench of the Supreme Court. The issues waiting for consideration are i) whether the expression “every person born in India” would apply only to persons born to Indian citizens and ii) whether the expression “either of whose parents is a citizen of India at the time of his birth” in Section 3(1)(b) of the Citizenship Act, 1955, would apply to only a person who is born to parents one of whom is a citizen and the other a foreigner, provided he or she has entered India lawfully and his/her stay in India is not in contravention of applicable Indian laws.

Section 6A of the Citizenship Act, introduced through an amendment in 1985 following the Assam Accord, classified illegal migrants who entered Assam from Bangladesh into three groups: those who entered the State before 1966; those who came between 1966 and March 25, 1971 (the official date of the commencement of the Bangladesh War); and those who entered after 1971. The first group was to be granted citizenship. The second group was to be granted citizenship after 10 years, while the third group was to be detected and expelled in accordance with law. The constitutionality of Section 6A was also challenged before the Supreme Court. This is pending resolution before the same Constitution Bench which is likely to determine the validity of Section 3 of the Act. 

A large number of persons acquired citizenship by virtue of Section 6A of the Act without being actually born within the territories of India. According to a special procedure that came to be prescribed, the claims of all persons (including persons born in India) for inclusion in the NRC were to be related to the entries either in the NRC 1951 or any of the electoral rolls prepared up to the midnight of March 24, 1971, or on the basis of any of the additional documents that have been specified. 

Although the resolution of these two issues by the Constitution Bench will have a bearing on the NRC process, the Supreme Court is not unduly worried about the outcome to justify any delay in finalising the NRC’s list of eligible citizens. 

If the Constitution Bench declares these two provisions of the Act unconstitutional, the NRC list, which was prepared on the assumption that these are constitutional, would become untenable or at least be subject to changes by aggrieved citizens.

Stress on deportation

In all these, the Supreme Court’s repeated stress on deportations, in the words of an observer, made the court appear to be more executive-minded than the executive itself. The petition filed by the social activist Harsh Mander, for instance, sought creation of humane conditions in detention centres. But the bench led by Chief Justice of India Ranjan Gogoi converted it to be a case about deportations without any justification, and removed Mander from the petition when he questioned its decision (see Interview on page 20). When the Centre sought to release a small number of detainees from these detention centres on fulfilment of certain conditions, the bench used the hearing of the same petition to question the Centre’s move to release them rather than deport. The Centre’s explanation that for deportation the host country’s cooperation was required was not convincing enough to the bench. 

To many people, the Supreme Court’s repeated enquiries about deportation suggested not only an ignorance of the basic international law principles of non-refoulement and against statelessness but also of the doctrine of separation of powers. The Supreme Court’s role should have been one of a neutral arbiter to check whether the government is exercising its discretion to deport a person in consonance with the principles of customary international law. Therefore, when the Supreme Court itself berates the government for its so-called failure to deport people, the affected persons have no further legal remedy of challenging an illegal deportation by the government. The recently held People’s Tribunal in the capital on the issue has, in its interim report, clearly brought this dilemma to the fore (see “Worrying signals”, page 22).

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