New Delhi: Justice J.B. Pardiwala declared section 6A of the Citizenship Act “manifestly arbitrary” as it does not prescribe any outer time limit for the completion of detection of migrants who moved from Bangladesh to Assam as well as mechanism for its effective implementation.
In the absence of any temporal limit to its application, the provision, according to the judge, has become counter-productive with the efflux of time and promotes further immigration into Assam. This means that the provision may have been valid at the time of its enactment, but with passage of time it has become “temporally unreasonable”.
Justice Pardiwala was the sole dissenting judge in the five-judges Supreme Court bench that Thursday upheld the constitutional validity of section 6A of the Citizenship Act that conferred citizenship to migrants from Bangladesh who entered Assam before 1966 and allowed those who migrated between 1966 and 1971 to register themselves for citizenship after a period of 10 years.
The majority verdict authored by Justice Surya Kant upheld Parliament’s primacy to legislate the special provision that fixed a separate cut-off date for Assam when it came to conferring citizenship to migrants. The provision marked 25 March, 1971, as the cut-off date in case of Assam, while for the rest of the country it was 26 January, 1950. It did not find it to be an arbitrary exercise or unreasonable, as argued by the petitioners who believed the provision brought about demographic changes in Assam, while posing threat to the indigenous identity of the state.
However, Justice Pardiwala analysed the procedure given in the law to apply for registration in the context of section 6A, and felt the open-ended nature inherent in the provision made it arbitrary. According to him, temporal unreasonableness in the law encouraged an indefinite and continuous exercise of detection of migrants.
This, according to him, promotes the immigrants to stay in Assam and allows immigrants from neighbouring states to come into Assam in the hopes of never being detected as a foreigner. In its present form, the law allows illegal migrants to set-up a defence under section 6A of the Citizenship Act upon identification to claim its benefit.
In his view, placing temporal limitations on the benefits available under section 6A appears to be the object of the legislation, without which the provision would go against the spirit of Assam Accord.
The judge compared it to the permit system that was introduced after the partition of the country to allow immigrants from Pakistan to migrate to India. Given that the permit system then introduced had a temporal limit to its applicability, Justice Pardiwala said, a similar restriction should be imposed on the application of Section 6A.
“….seen in this context, it appears to me to be unreasonable why Section 6A of the Citizenship Act, which, too, was brought in to deal with a one-time extraordinary situation, should be allowed to continue for all times to come,” the judge said.
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With the passage of time, Section 6A has become more prone to abuse and promotes further immigrants to enter Assam, he added, agreeing with the petitioners’ argument that the provision even provided an opportunity to immigrants with forged documents to stake a claim that they belong to the pre-1966 and the 1966-71 stream, upon identification as a foreigner, and secure Indian citizenship.
The judge specifically discussed section 6A (3) of the Citizenship Act that pertains to registration of a person of Indian origin who came to Assam between 1 January, 1966, and 25 March, 1971. It mandates that migrants must first be detected as a foreigner before they register themselves as citizens.
Based upon the data that was submitted by the government during the hearing, the judge expressed his concern at the number of foreigners who have been detected under section 6A (3). According to him, it was far lower than the actual number of immigrants who arrived during the said period.
This was not only on account of poor implementation of the law, but also the inherent arbitrariness in the mechanism of section 6A itself, the judge concluded. It was silent on the procedure which a migrant, who entered between 1966 and 1971, was required to follow to declare themselves as a foreigner and then to register for citizenship.
Moreover, the law or the rules made thereunder did not prescribe for any outer-limit or an end date, after which the benefit of citizenship under section 6A(3) cannot be availed. This, he added, had “two-fold adverse consequences”.
According to him, it relieved the state from the burden of effectively identifying, detecting and deleting from the electoral rolls all immigrants of the 1966-71 stream. Secondly, it incentivised the immigrants belonging to this group to continue to remain on the electoral rolls for an indefinite period, only to get themselves registered under section 6A once detected by a competent tribunal.
He explained that the cut-off date of 1 January, 1966, was introduced to address concerns about the wrongful inclusion of immigrants in the electoral rolls ahead of elections. But this exercise could have been effective only if all immigrants from this period were detected and removed from the electoral rolls in a timely manner, which did not happen. Therefore, the objective of having two distinct categories of immigrants was not achieved.
Section 6A, in his view, was never meant to maintain the status quo regarding the immigrants of the 1966-71 stream. “It was enacted with the object of achieving en masse deletion of this category of immigrants from the electoral rolls subsequent to which de jure citizenship was to be conferred on them after a cooling-off period of 10 years”.
Justice Pardiwala ruled that “Assam Accord was a one-time political settlement, arrived at in the specific context of widespread violence and agitation in Assam. The extraordinary conditions existing in the years 1979-85 cannot provide a permanent and perennial ground for continuation of a manifestly arbitrary provision, which is uncertain and indeterminable owing to its sui generis mechanism”.
(Edited by Zinnia Ray Chaudhuri)