The Supreme Court on Wednesday upheld the constitutional validity of Section 6A of the Citizenship Act 1955, which recognized the Assam Accord, by 4:1 majority.
The verdict was delivered by the five-judge Constitution Bench of Chief Justice of India DY Chandrachud, Justice Surya Kant, Justice MM Sundresh, Justice JB Pardiwala and Justice Manoj Misra.
Justice Pardiwala gave a dissenting judgment, holding Section 6A as unconstitutional with prospective effect.
In his judgment, CJI Chandrachud said the Assam Accord was a political solution to the problem of illegal migration and Section 6A was the legislative solution. The majority held that the Parliament had the legislative competence to enact the provision. Section 6A was enacted to balance the humanitarian concerns with the need to protect the local population.
He said the majority further held that the singling out of Assam from other states that shared a larger border with Bangladesh was rational as the percentage of immigrants among the local population was higher in Assam, compared to other border states.
The CJI further said the impact of 40 lakh migrants in Assam was greater than 57 lakh migrants in West Bengal because the land area in Assam was comparatively small.
The majority agreed to the rationality of fixing March 25,1971 as the cut-off date, since it was the date when the Bangladesh liberation war ended. The objective of the provision must be seen in the backdrop of the Bangladesh war. The majority held Section 6A as neither being over-inclusive nor under-inclusive, he added.
The CJI further observed that the mere presence of different ethnic groups in a State did not mean that the fundamental right to protect linguistic and cultural heritage as per Article 29 (1) of the Constitution had been infringed. The petitioners have to prove that one ethnic group was not able to protect their own language and culture just because of the presence of another ethnic group.
Justice Surya Kant, authoring the verdict for himself, as well as for Justice Menon and Justice Misra, rejected the petitioners’ argument that Section 6A violated the principle of fraternity embodied in the Preamble to the Constitution.
He said fraternity could not be understood in a narrow manner to hold that one should be able to choose one’s neighbours.
Justice Kant further rejected the argument that the provision suffered from “manifest arbitrariness” because of the cut-off date specified.
Regarding the argument of petitioners based on Article 29, the judgment authored by Justice Kant held that they have not been able to show any impact on Assamese culture and language due to immigration.
Section 6A mandated that the migrants who entered after the cut-off date should be detained and deported, he noted. On the same count, the verdict rejected the argument based on infringement of Article 21. The petitioners have not been able to show a constitutionally valid impact on their culture due to the presence of any other group.
The verdict by Justice Kant held that the immigrants who entered Assam before the date of January 1, 1966, were deemed to be Indian citizens. The immigrants who entered Assam between January 1, 1966 and March 25, 1971, were entitled to seek Indian citizenship, provided they fulfilled the eligibility criteria.
The immigrants who entered Assam on or after March 25, 1971, were declared to be illegal immigrants. They were liable to be detected, detained and deported, as per the directions issued in the Sarabandana Sonowal judgment.
The verdict by Justice Kant declared the statutory machinery and Tribunals tasked with the identification of illegal migrants as inadequate and not proportionate to the requirement of giving time-bound effect to the legislative objectives of Section 6A, Foreigners Act, Foreigners Tribunals Order, Passport Act etc,
It said the implementation of these provisions could not be left to the mere wish of the executive authorities and hence, constant monitoring by the Supreme Court was necessary. Justice Kant suggested that the matters should be placed before a Bench to monitor the implementation of these directions.
The Apex Court, during the course of hearing, ordered the Ministry of Home Affairs to furnish data regarding the inflow of illegal migrants to Assam and North Eastern states after March 25, 1971 (post the declaration of Bangladesh independence).
The Ministry was further directed to provide data-based disclosures regarding the grant of citizenship to immigrants during different tim periods, and the functioning of Tribunals established for dealing with cases related to foreigners.
In his dissenting verdict, Justice Pardiwala reasoned that a piece of legislation may be valid at the time of enactment but by afflux of time, it has become temporarily flawed.
He opined that the cut-off date of January 1, 1966 was set to assuage the apprehensions of the protesters. The legislature could have simply conferred deemed citizenship to anyone who entered before 1971. But the very fact that a statutory category was created from 1966 to 1971 subject to a stricter condition (no voting rights for 10 years) would mean that the conferment of citizenship was not the only objective and it was, in fact, intended to pacify the Assam people that such inclusion would not impact the then upcoming elections in the state.
Hence, the classification between pre-1966 immigrants and the 1966-71 immigrants could not be regarded as reasonable for all times, noted Justice Pardiwala.
He said Section 6A, in the absence of any temporal limit, was counter-serving its objecting. It was illogically unique that a person wanting to avail the benefits of citizenship under 6A has to wait to be detected and then move to the tribunal to prove the same. The mechanism did not permit a person from the 1966-71 stream to voluntarily obtain citizenship, thus militating against the very purpose of such a law.
Noting that Section 6A had acquired unconstitutionality with the afflux of time, Justice Pardiwala declared it as unconstitutional with prospective effect.
Section 6A of the Citizenship Act 1955 allows foreign migrants of Indian origin, who came to Assam after January 1, 1966 and before March 25, 1971, to seek Indian citizenship. The provision was inserted in 1985 following the Assam Accord, an agreement between the Government of India and the leaders of the Assam movement, who had protested the removal of illegal migrants entering Assam from Bangladesh.
The cut-off date of March 25, 1971 was the date, when the Bangladesh liberation war ended.
Certain indigenous groups of Assam have challenged this provision, contending that it legalised illegal infiltration of foreign migrants from Bangladesh.