On October 17, 2024, a five-judge Constitution Bench of the Supreme Court, by a 4:1 majority, upheld the constitutionality of Section 6A of the Citizenship Act, 1955. This provision, introduced in 1985 to implement the Assam Accord—a pact between the Union government and groups demanding the deportation of illegal migrants—grants citizenship to individuals who entered Assam from Bangladesh before March 25, 1971. Justice Surya Kant wrote the main opinion, with Chief Justice D.Y. Chandrachud agreeing in a concurring view.
However, Justice J.B. Pardiwala dissented, arguing that Section 6A should be struck down for “temporal unreasonableness,” as it no longer serves its original purpose and instead causes more harm.
This article delves into the judgement and reasoning employed by both the majority judgement and the minority opinion in arriving at their respective decisions. A detailed background becomes necessary to understand the judgement better.
The Constitutional provisions on Citizenship:
Part II- Articles 6-11 deal with Citizenship under Indian constitution. Article 5 deals with Citizenship at the commencement of Constitution, Article 6 deals with Rights of Citizenship of Certain Persons who have migrated to India from Pakistan with cut-off date for being deemed as a citizen set as July 19, 1948. Article 7 states that no person who migrated to Pakistan after March 1, 1947 shall be deemed to be a citizen of India.
Article 10 of the Constitution states that every person who is or is deemed to be a citizen of India under this part i.e., Part II—subject to the provisions of any law made by the Parliament—would continue to be such citizen.
Article 11 of the Constitution states that this part i.e., Part II does not take any power away from the Parliament to make any provision with respect to the acquisition and termination of Citizenship and all other matters relating to Citizenship. Essentially, the Parliament has extensive powers vis-à-vis Citizenship.
Article 29 of the Constitution deals with the protection of interests of minorities. It states that any section of citizens residing in the territory of India or any part thereof having a district script of culture of its ow shall have the right to conserve the same.
Assam Accord and the Citizenship Challenge
The Assam Accord is a significant agreement signed in 1985 between the Government of India and various student and political groups in Assam, aimed at addressing the issue of illegal immigration. The backdrop to the Accord includes the Bangladesh War of 1971, which led to a massive influx of refugees into India, particularly in Assam, resulting in demographic changes that caused anxiety among the indigenous Assamese population. The growing resentment towards illegal immigration sparked the Assam Agitation, a movement led by the All Assam Students’ Union (AASU) from 1979 to 1985, demanding the deportation of illegal migrants. In response to the unrest, the Indian government negotiated with movement leaders, culminating in the signing of the Assam Accord on August 15, 1985. The Accord established a cut-off date of March 25, 1971, for identifying illegal immigrants, stating that those who entered Assam after this date would be deported, while those who entered before would be granted citizenship.
Pursuant to this accord, Section 6A was added to the Citizenship Act, 1955 via the Citizenship (Amendment) Act, 1985, and the petitioners challenged this very Section 6A.
The Section grants citizenship to persons of Indian origin who migrated to Assam from Bangladesh. The provision classifies the class of migrants into two categories based on when they entered Assam: those who entered Assam before January 1, 1966 and those who came to Assam after January 1, 1966 but before 25 March 1971.
Provisions under Challenge
Section 6A (2) Conditions- Deemed Citizen of India
Section 6A (3) Conditions-Register to be a Citizen of India
The difference in rights between these two categories of people was that the person who has been registered for Citizenship under Section 6A (3) would be able to have their name included in the electoral roll after 10 years of their registration. Other than this, persons who became Citizens under Section 6A (3) will have same rights as those who became citizens under Section 6A(2).
Issues:
The core issue was the challenge to Section 6A, which is argued to violate the following Articles of the Constitution:
Petitioners’ Arguments
On Legislative Competence
The petitioners argued that as far as Bangladesh is concerned, it was a part of Pakistan at the time of amendment of the Constitution and for citizenship of people from the territories of Pakistan, the Constitution has Articles 6 and 7 which prescribes cut-off dates for people coming into India from Pakistan. Therefore, allowing migrants from Bangladesh and deeming them citizens was only possible via an amendment of the Constitution and not a Parliamentary legislation i.e., Citizenship (Amendment) Act, 1985.
On violation of Article 14
The petitioners argued that Section 6A violates Article 14 for three main reasons. First, it is too narrow as it grants citizenship only to migrants in Assam. Second, there is no valid reason for singling out Assam and ignoring other states that border Bangladesh, as these states form a similar group. Third, Section 6A sets a different cut-off date for migrants entering Assam compared to those entering other states.
On violation of Article 355
The petitioners argued that Section 6A violates Article 355 of the Constitution. They claimed that Article 355 places a duty on the Union to protect against external aggression. According to the petitioners, a three-judge bench in Sarbananda Sonowal v. Union of India interpreted “external aggression” to include aggression caused by external migration. They further argued that, instead of preventing such migration, Section 6A actually encourages more migration into Assam. To support this argument, the petitioners cited the Sarbananda Sonowal judgment, claiming that a law’s constitutionality can be challenged if it violates Article 355.
On violation of Article 29
The petitioners argued that Article 29 of the Constitution protects the rights of endogamous communities, which they claim applies to Assam. They stated that the large influx of illegal migrants from former East Pakistan has caused significant demographic changes, leading to a loss of Assamese culture. They further argued that Article 29(1) gives communities’ full freedom to preserve their cultural identity, which they believe is threatened by the forced imposition of foreign culture through unchecked migration from Bangladesh into Assam.
On temporal unreasonableness
The petitioners argued that Section 6A(3) of the Citizenship Act, 1955 has become unconstitutional over time for several reasons. They claimed it has failed to effectively address illegal immigration, as it has not achieved its goal of identifying and deporting those who entered Assam after March 25, 1971. The lack of a temporal limit makes the provision arbitrary, undermining its original intent to grant citizenship only to immigrants from 1966 to 1971 and impeding efforts to remove illegal immigrants from electoral rolls. Additionally, the passage of time has made it easier for post-1971 immigrants to exploit the provision by forging documents and making false claims, complicating verification as government records deteriorate. The petitioners argued that these factors render Section 6A(3) temporally unreasonable, allowing it to persist indefinitely and contradicting current policies on illegal immigration, thereby incentivizing rather than curbing the issue it was intended to address.
On lack of procedure
The petitioners argued that Section 6A (2) of the Citizenship Act, 1955, is unconstitutional because it does not outline a procedure for granting citizenship to immigrants who entered Assam from Bangladesh before January 1, 1966. They contrasted this with Section 6A(3), which specifies a procedure for those who migrated between 1966 and 1971.
The petitioners highlighted that unlike other provisions in the Citizenship Act, such as Sections 3 and 4, which establish registration regimes, Section 6A(2) does not require any registration process for individuals deemed citizens under its provisions. They argue that this lack of procedure creates ambiguity and raises concerns about the arbitrary conferment of citizenship.
Respondents’ Arguments
The respondents argued that Parliament had the legislative authority to enact Section 6A, as Article 11 of the Constitution grants Parliament the power to make laws regarding citizenship, even if they conflict with other provisions. They emphasised that Entry 17 of List I in the Seventh Schedule empowers Parliament to legislate on citizenship matters and refuted the petitioners’ claim that Articles 6 and 7 apply to East Pakistan, asserting that these articles operate in different contexts. Additionally, they contended that Article 14 ensures equality in benefits, not liabilities, justifying the differential treatment of Assam based on its unique historical situation and the Assam Accord. They maintained that a statute cannot be struck down simply for not addressing all classes, as Parliament has discretion in legislating varying degrees of harm.
Regarding temporal unreasonableness, the respondents asserted that Section 6A reflects a constitutional tradition of accommodating differences and that there is an underlying rationale for the cut-off dates, challenging the notion that the provision has lost its original purpose. They further argued that Section 6A reinforces multiculturalism and that demographic shifts are unrelated to the provision. They claimed that Article 21 protects both the Assamese community and the rights of foreigners, asserting that Section 6A is a “procedure established by law.”
The Citizens for Justice and Peace (CJP) had intervened in the matter. The detailed written submissions made by CJP and a subsequent note submitted to the Court may be read here.
The Judgement
Majority Opinion authored by Justice Surya Kant for himself, and for Justices M.M.Sundresh and Manoj Misra
On competence of Parliament to enact Section 6A
The Court said that Parliament has the power to enact laws concerning citizenship. This power is explicitly granted by Article 11 of the Constitution. Article 11 states that “nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.” The Court said this language gives Parliament broad powers to create citizenship laws, even if those laws appear to conflict with other provisions in Part II of the Constitution.
The Court also pointed to Entry 17 of List I in the Seventh Schedule of the Constitution, which states, “Citizenship, naturalisation and aliens,” as further confirmation of Parliament’s authority over citizenship. The Court explained that the final draft of Article 11 was deliberately amended during the drafting process to remove a clause restricting Parliament’s legislative power. The Court said that this amendment shows that the framers of the Constitution intended to give Parliament significant freedom in crafting laws related to citizenship.
On violation of Article 14
The Court’s Analysis of Section 6A and Article 14
The Court said that Section 6A did not violate Article 14 of the Constitution, which guarantees equality before the law. The petitioners had argued that Section 6A unfairly discriminated against the indigenous population of Assam by granting citizenship to immigrants from Bangladesh. This, they argued, created an unreasonable classification that violated Article 14.
The Court recognised the Assam Accord as a valid basis for the differential treatment of Assam. The Court said that the Assam Accord, a political agreement aimed at resolving the longstanding conflict over immigration in Assam, represented a negotiated settlement reflecting the state’s particular challenges.
The Court said that Article 14 permits reasonable classifications, meaning that the law can treat different groups differently as long as there is a justifiable reason for doing so. The Court said that the historical context and the political solution reflected in the Assam Accord provided a legitimate basis for the classification created by Section 6A.
The Court also addressed the argument that Section 6A was “manifestly arbitrary” because the cut-off dates and procedures for granting citizenship were unreasonable. The Court negated this argument, saying that the cut-off dates in Section 6A were carefully chosen based on significant historical events rather than being arbitrary. The date of January 1, 1966, was selected because it represented a key moment regarding immigration in Assam. The Court explained that March 25, 1971, was another important date, coinciding with the start of the Bangladesh Liberation War. On this date, the Prime Minister of Bangladesh promised to return refugees who had fled to India, highlighting the humanitarian issues involved.
The Court emphasized that these dates were not just randomly picked but were the result of thoughtful discussions. The Bangladesh Citizenship (Temporary Provisions) Order of 1972, which granted citizenship retroactively from March 26, 1971, also played a role in recognizing those affected by the war and addressing statelessness. Overall, the Court concluded that the cut-off dates in Section 6A were reasonable and reflected the unique challenges of the time, allowing the law to effectively manage the complexities of immigration in Assam.
On Violation of Article 355
The petitioners claimed that Section 6A violated Article 355 of the Constitution, arguing that granting citizenship to a large number of immigrants could be construed as facilitating “external aggression” and “internal disturbance” within the state of Assam.
However, the court was of the view that 6A being limited in its ambit did not promote or legitimise continuance of migration. 6A rather paves the way for a practical solution to the problem of immigration into Assam by devising an implementable modus operandi,
The judgment further explained that Section 6A was enacted as part of a political solution aimed at resolving the existing conflict and instability in Assam. The court viewed Section 6A as a measure to bring about peace and order in the state rather than a catalyst for further disturbances.
Chief Justice DY Chandrachud’s concurring opinion
1. On violation of Article 29
CJI D.Y. Chandrachud opined that Section 6A does not violate Article 29(1) of the Constitution. He explained that Article 29(1), which guarantees the right of a group of citizens to protect their culture, centers on preventing the state from interfering with a group’s ability to safeguard its own culture. The petitioners argued that Section 6A, by granting citizenship to immigrants from Bangladesh, would dilute the Assamese population and adversely affect Assamese culture.
However, Justice Chandrachud stated that the petitioners did not demonstrate how Section 6A would directly prevent the Assamese people from taking steps to preserve their culture. He noted that the petitioners based their argument on the assumption that an increase in the Bengali population in Assam would harm Assamese culture but did not prove how Section 6A would directly result in this outcome.
Furthermore, he pointed out that Assam has other laws that safeguard Assamese culture, including laws mandating the use of the Assamese language in certain contexts. He also highlighted that the cultural and linguistic interests of the citizens of Assam are protected by constitutional and statutory provisions. Therefore, he concluded that Section 6A does not violate Article 29(1) because it does not obstruct the Assamese people from protecting their culture.
2. On Temporal Unreasonableness
CJI D.Y. Chandrachud opined that Section 6A(3) is not unconstitutional on the grounds of temporal unreasonableness. This legal doctrine posits that a law, even if initially constitutional, may become unconstitutional over time due to changing circumstances.
Justice Chandrachud stated that Section 6A(3) intended to create a lasting solution to the issue of migration from Bangladesh into Assam. While he acknowledged that concerns about the dilution of voting rights for people native to Assam due to the influx of migrants played a role in the Assam Accord, he asserted that addressing this specific issue of identification of migrants was not the only purpose of Section 6A(3). He determined that Section 6A(3) could not be deemed unconstitutional solely due to the passage of time, especially considering that the process of identifying and granting citizenship in Assam is an extensive undertaking that can take decades. He stated as follows:
“The principle of temporal unreasonableness cannot be applied to a situation where the classification is still relevant to the objective of the provision. The process of detection and conferring citizenship in Assam is a long-drawn out process spanning many decades. To strike it down due to lapse of time is to ignore the context and object of the provision”
3. On Lack of Process in Section 6A
CJI D.Y. Chandrachud opined that Section 6A(2) cannot be considered unconstitutional because it does not specify a procedure for registration. He stated that the Citizenship Rules, amended in 1987, implement the provisions of Section 6A(3). These rules outline that if the question of a person’s foreign status arises in proceedings other than those under the Foreigners Act, 1946, the matter must be referred to a Foreigners Tribunal for determination.
Although Justice Chandrachud did not directly address the lack of process in Section 6A(2) as raised by the petitioners, it is important to note that he refuted the claim that Section 6A(2) was unconstitutional due to a lack of process. The majority judgement too noted that the many other rules complement the implementation of Sectio 6A and all of them have to be interpreted as one harmonious code.
The Dissent
Justice Pardiwala’s Dissent: Temporal Unreasonableness and Lack of Procedure in Section 6A
Justice J.B. Pardiwala wrote a dissenting judgment, disagreeing with Justice Surya Kant’s conclusion that Section 6A of the Citizenship Act, 1955 was constitutionally valid. Justice Pardiwala found Section 6A unconstitutional, arguing that while it might have been constitutional at the time of its enactment in 1985, the provision had become unconstitutional over time.
Justice Pardiwala pointed to the doctrine of temporal reasonableness, a legal principle that suggests a law, while valid at its enactment, may become arbitrary over time due to changing circumstances. He applied this doctrine to analyzeSection 6A(3), which establishes a procedure for determining the citizenship status of immigrants who entered Assam from Bangladesh between January 1, 1966, and March 25, 1971. If such individuals are found to be “foreigners”, they are deleted from electoral rolls for ten years.
Justice Pardiwala argued that the low number of immigrants actually detected and deemed “foreigners” under this provision suggests the process has become arbitrary and ineffective. He highlighted that over 40 years have passed since the enactment of Section 6A, and the original objective of the ten-year exclusion from electoral rolls has become meaningless as that timeframe has long since passed.
Justice Pardiwala also criticised Section 6A for its lack of a well-defined procedure. He argued that the provision does not adequately address the process of determining “ordinary residence” in Assam, a key factor in determining eligibility for citizenship under Section 6A. He stated that this lack of clarity could lead to arbitrary and discriminatory application of the law.
In emphasizing the need for temporal limits, he underscored that other immigration and citizenship laws in India have inherent temporal limitations. For instance, Paragraph 2(1) of the Foreigners (Tribunal) Order, 1964 stipulates that a foreigners tribunal can only adjudicate on an individual’s citizenship status if a reference is received from a competent authority within a specified timeframe. Similarly, the Immigrants (Expulsion from Assam) Act, 1950 is centeredaround removing immigrants who entered Assam after a specific date.
Therefore, according to Justice Pardiwala, the lack of a specified timeframe within Section 6A, especially when viewed alongside other related laws, creates inconsistencies and renders the provision susceptible to arbitrary implementation. He concluded that Section 6A fails to provide a fair and reasonable process for determining citizenship, leading to discriminatory outcomes for those who migrated to Assam from Bangladesh during the specified period.
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