In a writ petition regarding the constitutionality of Section 6A of the Citizenship Act, 1955, a five-judge Constitution bench of the Supreme Court, comprising Chief Justice of India (CJI) DY Chandrachud, and Justices Surya Kant, MM Sundresh, JB Pardiwala and Manoj Misra, deliberated extensively on the issue. The majority opinion, supported by four judges, upheld the validity of the Section, while Justice Pardiwala gave a dissenting opinion. The CJI authored the majority opinion, while Justice Surya Kant authored a separate opinion that was joined by Justices MM Sundresh and Manoj Misra.
In 1985, the Citizenship (Amendment) Act was enacted to add Section 6A to the Citizenship Act. Section 6A of the Citizenship Act, 1955, grants citizenship to individuals of Indian origin who migrated from Bangladesh to Assam. The provision categorizes migrants into two groups based on their date of entry into Assam: those who arrived before January 1, 1966, and those who arrived after January 1, 1966, but before March 25, 1971.
The Section outlines the criteria for determining an individual’s citizenship status in India as of January 1, 1966. It specifically addresses the situation of immigrants in Assam, stipulating that those who arrived after this date, but before March 25, 1971, may apply for citizenship after residing in India for ten years. However, they are not entitled to voting rights during the initial ten years of their citizenship. In contrast, the immigrants who arrived after March 25, 1971, are categorized as illegal immigrants and are subject to detection and deportation.
The petitioners initiated legal proceedings under Article 32 of the Constitution, contesting the constitutional legality of Section 6A. They asserted that it infringes upon Articles 6, 7, 14, 29, and 355 of the Constitution.
On December 17, 2014, in the case of Assam Sanmilita Mahasangha vs Union of India (2015) 3 SCC 1, a two-judge bench of the Supreme Court had referred the matter of Section 6A’s constitutional validity to a Constitution bench for further consideration.
To comprehend the context in which Section 6A was incorporated into the Citizenship Act, the Court analysed the legal framework governing citizenship, specifically the regulations pertaining to the citizenship status of migrants from East and West Pakistan following the partition of India. In accordance with Articles 5, 6, and 7 of the Constitution, the Court determined that the Constitution solely defines who would be considered citizens at its inception, as indicated by the phrase “at the commencement of the Constitution” and the provision’s drafting history. Article 6 pertains to a specific group of migrants from both Pakistan and Bangladesh to India (including Assam). This provision only applies to those who migrated to India until July 26, 1949, based on the six-month residency requirement.
The Court clarified that Section 6A grants citizenship to those who migrated from Bangladesh to Assam until March 24, 1971, excluding those who migrated after July 26, 1949. This overlap with the constitutional provisions does not constitute an amendment. Article 6 and the proviso to Article 7 only confer citizenship on January 26, 1950, while Section 6A grants citizenship from January 1, 1966 to March 24, 1971, ten years after detection. The Court held that Section 6A of the Citizenship Act does not have the effect of amending Articless 6 and 7.
The CJI said that Section 6A was enacted to address the influx of migrants who had already entered India and those anticipated to do so. He described the Assam Accord as a “political resolution” and Section 6A as a “legislative solution” that balanced humanitarian concerns for migrants of Indian origin with the economic and cultural impact of such migration on Indian states.
The CJI further explained that migration under Section 6A does not contravene Article 355 of the Constitution, which mandates the Union’s responsibility to safeguard states from external aggression and internal disturbances. The petitioners contended that the substantial influx of immigrants imposed this burden on the Union. However, the CJI cautioned against such an interpretation, emphasizing that the provision falls within Part 18 of the Constitution, pertaining to emergency powers. Allowing citizens or courts to invoke these powers could potentially jeopardize India’s federal structure.
The CJI further dismissed the petitioners’ claims under Article 29 regarding protection of ethnic and cultural minorities’ rights. He stated that the presence of different ethnic groups in Assam was insufficient to violate Article 29(1), and they failed to show an actionable impact on Assamese culture. Lastly, he clarified that Section 6A(2), which grants citizenship to migrants who entered before January 1, 1966, does not mandate registration, as it is a “de facto” method for acquiring citizenship.
Justice Surya Kant commenced the proceedings by summarily dismissing the challenges raised by the respondents concerning the maintainability of the petitions. Having cleared the procedural hurdles, Justice Kant proceeded to expound upon his reasoning in support of upholding the constitutionality of Section 6A of the Citizenship Act. In a manner akin to that of the CJI, Justice Kant meticulously outlined the pivotal issues under consideration. These encompassed the potential contravention of the right to vote enshrined in Article 326, the infringement of the fundamental right to life and liberty guaranteed under Article 21, and the potential breach. Finally, he dismissed the argument that the provision violated international law, asserting that domestic law takes precedence over international law.
In conclusion, Justice Kant provided the following directives:
- Section 6A is redundant for immigrants who entered after March 25, 1971. These individuals are considered illegal and should be subject to deportation. The provisions of the Immigrants (Expulsion from Assam) Act, 1950, should be referenced in conjunction with Section 6A to identify illegal immigrants.
- The current statutory machinery and foreigner tribunals are inadequate and insufficient to effectively implement the time-bound objectives of Section 6A.
- The implementation of these immigration and citizenship legislations should be monitored by the Supreme Court.
Justice Pardiwala clarified that his disagreement stemmed from a distinct viewpoint. He explained: “My reasoning assumes that a law may be valid when enacted, but certain provisions may become temporally unreasonable over time. This is the basis on which I have expressed my opinions.” He concluded that the provision was deemed to be counterproductive to its intended purpose due to the absence of a time limitation. Consequently, he declared Section 6A(3) unconstitutional.
It is important to note that this ruling does not impact immigrants who arrived prior to January 1, 1966, or those who were identified as foreigners between 1966 and 1971 and subsequently granted citizenship. Likewise, immigrants who had been identified as foreign nationals and registered for citizenship, or those with pending appeals, would not be affected by his judgment. However, immigrants from the 1966-71 period who had not yet been identified as foreign nationals would now be classified as undocumented immigrants. Justice Pardiwala’s ruling was applied prospectively, meaning the provision would be considered unconstitutional from the date of judgment.
—By Abhilash Kumar Singh and India Legal Bureau