New Delhi: The Supreme Court Thursday upheld the constitutional validity of section 6A of The Citizenship Act, 1955, that confers citizenship on a specific class of migrants from Bangladesh to Assam. A five-judge bench that delivered this judgement was led by Chief Justice of India (CJI) D.Y. Chandrachud and comprised justices Surya Kant, J.B. Pardiwala, M.M. Sundresh and Manoj Misra.
While Justice Surya Kant authored the lead verdict on behalf of justices Sundresh, Misra and himself, Justice Chandrachud wrote a separate verdict elaborating his reasons on why he supported the majority view.
Justice Pardiwala wrote a dissenting verdict and declared section 6A of the Citizenship Act invalid with prospective effect.
The decision came on a batch of 14 petitions that challenged section 6A’s inclusion in the Citizenship Act through an amendment in 1985. Their main contention was that section 6A did not prescribe a mechanism for a migrant to secure citizenship and encouraged illegal migrants from neighbouring states to seek residence in Assam.
The majority verdict held that the legislative objective of Section 6A was to balance the humanitarian needs of migrants of Indian origin and the impact of migration on the economic and cultural needs of Indian states. Its implementation following the Assam Accord brought quietus to discord in the state, while concurrently enabling India to uphold its diplomatic commitments to Bangladesh and address humanitarian concerns.
Justice Pardiwala, the sole dissenting judge, said section 6A has become invalid with the efflux of time. According to him, it leaves a burden on the state to detect and deport illegal immigrants and does not align with Articles 6 and 7 of the Constitution that deal with rights of citizenship of persons who migrated from Pakistan.
In his opinion, Justice Kant, speaking for two more judges, acknowledged concerns surrounding illegal immigration and said they need to be addressed. Due to porous borders and incomplete fencing, the unceasing migration imposes a significant challenge, he said, while holding there was inadequate enforcement of the scheme under section 6A that aims to restrict illegal immigration post-1971. Importantly, Justice Kant called for judicial monitoring of the implementation of immigration and citizenship legislations, which he said cannot be left to the discretion of authorities.
What is section 6A
In 1985, The Indian Citizenship Act was amended to include section 6A. The provision was introduced following the signing of the Assam Accord between the Government of India and agitating groups in the state.
It granted citizenship to persons of Indian origin who migrated to Assam from Bangladesh before 1971 and established a framework to delineate criteria for the same.
The provision classified the class of migrants into two categories. This classification was based on when the migrants entered Assam.
So, essentially those who entered Assam before 1 January 1966 were deemed to be citizens of India if the person was of Indian origin or if they or either of their parents or grandparents were born in undivided India. The provision also said that the migrant should have come to Assam from a specified territory, defined as territories in Bangladesh, and the person should have been an ordinary resident in Assam since the date of entry into the state.
The second category was those who entered Assam after January 1966 but before 25 March 1971. Such persons were required under section 6A to register themselves to secure citizenship. Again, they should have migrated from Bangladesh and should have been ordinarily resident in Assam since the date of entry into the state.
Though such persons were allowed to be listed in the electoral roll of Assam, they were barred from casting their vote in any elections for a decade. But they were given the same rights and obligations as Indian citizens.
On the other hand, no protection was granted to those entering Assam after 25 March, 1971, thereby rendering their presence in India illegal and making them liable for deportation.
Why was 6A challenged
The first writ petition challenging inclusion of section 6A in The Citizenship Act was filed in 2009 by an Assam-based NGO, Assam Public Works, seeking deletion of names of illegal migrants from electoral rolls in Assam and updation of the National Register of Citizens (NRC).
Three years later, in 2012, another organisation—Assam Sanmilita Mahasangha and other organisations moved the court seeking directions to strike down Section 6A, claiming it to be discriminatory and arbitrary.
By the time this matter was ready for a final hearing in October 2023, the list of petitions against Section 6A grew to 14.
These petitions raised multiple questions such as whether the grant of citizenship to migrants from Bangladesh to Assam was within the legislative competence of Parliament under Article 11 of the Constitution that gives the legislature the power to make laws about citizenship; whether section 6A adopts unreasonable cut-off dates for regularising illegal migrants; and whether it singles out Assam, in the process violating Article 14 that ensures equality for Indian citizens.
Other questions raised were whether section 6A is in breach of Article 355 as undocumented immigration would amount to external aggression against which the Centre is supposed to protect the state; whether 6A is against Article 29 since granting citizenship to migrants from Bangladesh in Assam would impact the state’s cultural identity, threaten its culture, causing a demographic shift in the state; whether 6A and since it led to marginalisation of political rights of locals, poses a threat to the unity and integrity of the country.
Based on the issues the top court in December 2014 framed 13 questions and referred the matter to a five-judge Constitution bench.
While detailed deliberations on validity of section 6A was pending, a two-judge bench of the Supreme Court started monitoring the NRC updation process for Assam. The final draft of the NRC list was published on 30 July, 2018 whereby over 40 lakh persons out of 3.29 crore applicants stood excluded. The final one published on 31 August, 2019 brought the exclusion down to 19 lakh.
This became a matter of concern as several applications against the NRC list were filed in the Supreme Court, claiming many children had been excluded from it, despite inclusion of their parents. However, in January 2020 a statement made by the Attorney General assured the court that such children would not be separated from their parents.
Centre, Assam support 6A
Both Centre and the Assam government opposed the petitions on the ground they were not maintainable and that a judicial review of the amendment was legally not permitted since the issues involved related to India’s foreign policy, traditionally kept out of court’s purview.
They argued the challenge was belated because it was made after a considerable delay of 27 years.
In response to the petitioner’s contention that the Constitution upholds national fraternity and not global, Centre and Assam argued the term fraternity encompasses equal regard among individuals, preventing societal division into distinct groups.
A separate cut-off date under section 6A was justified on the ground that its objective was based on the “constitutional tradition” of accommodating differences through asymmetric federal arrangements. It was maintained that 6A did not affect the rights of the Assamese community. Rather, section 6A, they emphasised, was introduced to address “internal disturbance” in Assam caused due to the influx of migrants from Bangladesh in the aftermath of the 1971.
Constitutional concept of fraternity
The majority view of the Supreme Court refused to dismiss the petitions at the threshold and chose to deliver a detailed judgement considering they raised significant public policy issues that involved ramifications for Assam’s original inhabitants, rights of immigrants and national security.
It went on to reject the petitioners’ case, but called for a stricter implementation of laws against illegal immigration and its judicial monitoring.
After dissecting the legislative history of section 6A and the background in which it was introduced, the majority opinion said section 6A falls within the bounds of the Constitution and does not contravene the foundational principles of fraternity, nor does it infringe upon any of its provisions.
Fraternity, the opinion said, cannot be understood in a narrow sense to hold that one should be able to choose one’s neighbours. Rather, section 6A aligns with the concept of fraternity as it stands today, which allows people of different backgrounds and social circumstances to “live and let live”.
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Parliament competent enough
The majority view held that Parliament was competent to prescribe different conditions to grant citizenship. Under Article 11, the court said, Parliament has the power to make “any” provision regarding citizenship and this authority is not restricted by any provision of Part II of the Constitution that deals with citizenship provisions for India.
The majority view dismissed the petitioners’ assumption that section 6A allowed dual citizenship to migrants from Bangladesh, since its operation by law presumed the person applying for Indian citizenship would have relinquished the previous one. Moreover, the Constitution did not permit dual citizenship and, the court said, adding that it found no merit in the said contention.
The court said while Articles 6 and 7 conferred citizenship to those who migrated during Partition from Pakistan before 26 January, 1950, it did not cover those who migrated from East Pakistan to Assam after July 1948.
Thus, section 6A conferred citizenship to those who were not covered under the above-mentioned Articles.
While the Assam Accord was a political solution, section 6A was a legislative one that balanced the humanitarian needs of migrants of Indian origin and the impact of such migration on economic and cultural needs of Indian states.
Intelligible classification
To the petitioner’s contention that section 6A’s exclusive application to Assam made it violative of Article 14 that guarantees equality to all citizens, the court said it found the classification made through this provision as reasonable and intelligible.
The provision was introduced out of humanitarian concern as it was deemed inhumane to repatriate thousands of people who had migrated during the 1971 war.
This immigration to Assam presented the Centre with a unique problem in terms of magnitude and impact, even though other states such as West Bengal, Meghalaya, Tripura and Mizoram too shared a larger border with Bangladesh.
Further, the considerations of inter-state relations were pivotal, as India sought to extend cooperation to the newly formed nation of Bangladesh and helped it restore normalcy.
The court said the section was introduced pursuant to the Assam Accord that agreed to grant Indian citizenship to a limited category of immigrants from Assam and at the same time extended benefits to those involved in agitation, while focusing on socio-economic development of the state.
Section 6A, the court held, was accorded to advance the political settlement established through the Assam Accord. Therefore, the court concluded, relevant factors were considered while prescribing a different cut-off date for grant of citizenship under section 6A.
This, according to the bench, served as the basis of intelligible differentia and the reasonable classification, which was an outcome of it, was grounded in the legitimate context of the unique circumstances prevailing in Assam.
The court refused to comment on whether the Centre should have entered into similar agreement with other states, observing that political compromises and agreements are a prerogative of political entities.
Does not amount to external aggression
Further, according to the court the petitioners failed to demonstrate that the provision introducing a cut-off date for citizenship exclusively for Assam was unreasonable or capricious or whimsical.
From a historical perspective, the court said, the cut-off dates in section 6A were not incorporated in a vacuous manner, but were a result of considerable deliberation and discussion. In the court’s view the process outlined in section 6A for migrants to secure citizenship was neither irrational nor vague and was, rather, more akin to a beneficial legislation.
After a “careful” examination of the petitioners’ charge that section 6A has led to drastic demographic change, resulting in the loss of Assamese culture, the court said the material on record did not substantiate the claim.
In their argument the petitioners had contended that the influx of migrants from Bangladesh had led to substantial acquisition of land and scarce resources by immigrants, marginalising the original Assamese inhabitants within their own territory.
However, the court viewed that all citizens have the right to own property and, unless restricted by statute or any other law, they are free to enter into private land transactions.
It even rejected the petitioners’ contention that section 6A had permitted migrants to utilise Assam’s natural resources, thereby violating the indigenous community’s right to live with dignity. In this context the court said that a nation can accommodate immigrants and refugees, while simultaneously prioritising sustainable development and equitable allocation of resources.
The court did not find merit in the petitioners’ submission that section 6A had conferred political rights upon millions of Bangladeshi migrants who continued to pose a severe threat to the people of Assam. It refused to direct en mass removal of the migrants who got voting rights by the virtue of becoming Indian citizens.
The court, however, gave liberty to the petitioners to move the court under the election law in case an ineligible migrant is included in the voter list.
On whether citizenship to migrants under section 6A would constitute internal disturbance or external aggression, the court said no. Hence, it ruled that this provision was not a violation of Article 355 that requires the central government to provide adequate protection to states from external aggression.
Section 6A, the court held, addressed a controlled and regulated form of immigration, which was crucial to bring quietus to the political upheaval in Assam.
(Edited by Amrtansh Arora)