Supreme Court judgments are not just important for what “law they declare” but, at times, also for the context in which such pronouncements are made, and on what basis. The history of litigation gives us a better understanding of the true significance of the apex court’s rulings as contentious political questions routinely end up in constitutional courts and judges become final arbiters of politics when they decide such questions. The Section 6A judgment is a classic example, where context and litigation history are of great significance.

The modern idea of universal citizenship originated in France. Nationality was understood as citizenship, which conferred rights and duties on a citizen and made the latter accept the value system of the nation. One could claim citizenship because of one’s affirmation of and affiliation to the core principles of the French Republic.

Territorialisation as a central tenet of citizenship came much later with citizenship becoming more of a “status” than a “belief in core values”. Indeed, if citizenship signifies belonging to a political community, it must ideally be based on adherence to some principles, not birth. French citizenship was granted to outsiders, including Thomas Paine, the British-born founding father of America.

The Constitution of 1793 granted citizenship to aliens living in France for over a year for work or to one who married a French woman and, more importantly, anyone who adopted a child or supported an old man or deserved humane treatment. Only subsequently, in France and elsewhere, did birth become all-important. Then, regressive countries even added the additional condition of blood ties to the grant of citizenship. Today, citizenship is often a tool for exclusion and “othering”.

B R Ambedkar admitted in the Constituent Assembly that no article gave him as much headache as Article 5 which determined citizenship. It was only after a heated debate that citizenship was agreed to be given based on birth and not religion. Subsequently, our Citizenship Act, 1955, was amended and the condition of blood ties was added.

Partition involved large-scale migration and the Constitution granted citizenship to everyone who came into the country before 19 July 1948. It was less welcoming of those who had gone to Pakistan after 1 March 1947, and got stuck there due to communal violence before, during and after Partition. These people could return only under strict conditions.

On the eastern border, due to continuous migration from Bangladesh to Assam, in pursuance of the Assam Accord, 1985, a different dispensation for citizenship under Section 6A of the Citizenship Act was provided. The politics of polarisation has been prominent in this context — especially in recent times: Migrants from Bangladesh have been called “termites” and migration was called “external aggression”. The National Register of Citizens (NRC) excluded just 1.9 million people or 5.77 per cent of the residents of Assam who were supposed to be issued notices so that they appear before the Foreigners Tribunals to prove their citizenship. In more than six years, not a single person whose name has been included in the NRC has been issued a citizenship card nor have those excluded received any notice.

The current Chief Minister of Assam wants to advance the 1971 cut-off date by a few decades so that more and more residents of Assam are denied citizenship. The five-judge bench judgment of the apex court is a setback for him. In fact, the central government argued in favour of the 1971 cut-off date. This probably made the Court’s task easier.

The judgment has surprised many, as in three different judgments in 2005, 2006 and 2014, the Supreme Court had itself expressed its displeasure about the different dispensation on citizenship with respect to Assam. In Sarbanada Sonowal (2005), it showed an inclination to treat the migration of people from Bangladesh into Assam as “external aggression” under Article 355. In Sonowal II (2014), the Court quoted in its verdict a book that described migrants as a “vast horde of land-hungry immigrants mostly Muslims”.

The 13 questions framed by the Court to refer the matter to the Constitution bench give an idea of the significance of the latest judgment. Some of these were: Is the cut-off date for Assam different from the one prescribed for the rest of the country in Article 6 of the Constitution, constitutional? Does the singling out of Assam in Section 6A violate the right to equality?

Does Section 6A dilute the political rights of citizens in Assam by reducing the weight of their vote? Does “state” in Article 355 include even the “people” of the state and not merely its territory? Could people who have not lost their citizenship of East Pakistan be deemed as Indian citizens with dual citizenship? Is there a violation of the right to culture of Assamese people due to demographic change and the presence of Bengali-speaking migrants?

The Supreme Court categorically upheld different cut-off dates for Assam due to its geography and as a political solution to migration from Bangladesh. CJI DY Chandrachud observed that the cut-off dates given in Articles 6 and 7 are for the determination of citizenship only at the commencement of the Constitution and not afterwards. Therefore, Section 6A is neither arbitrary nor does it violate the cut-off dates prescribed in the above articles.

The Court also held that mere change in demography does not mean the culture of residents cannot be conserved. Justice Surya Kant refused to interpret fraternity narrowly. The Court also refused to accept the Centre’s failure in its duty to protect states from external aggression as grounds for striking down a law. It refused to treat migration as “external aggression” and held that Section 6A does provide for “controlled migration”.

The solution to the Assam problem is to immediately issue citizenship cards to people whose names are included in the 2018 NRC. Notices must also be issued to those whose names could not be included in the register so that they appear before the Foreigners Tribunals.

Hopefully, the tribunals will make fair decisions. Those who entered Assam after 25 March 1971, must be detected. After their names are deleted from the NRC, they must be deported. Let citizenship in Assam be universal, equal and non-hierarchical. Let it not be merely a vertical relationship between state and people but rather, a horizontal idea of solidarity between residents of Assam to effectively promote inclusion and fraternity.