A five-judge Constitution Bench of the Supreme Court, led by Chief Justice DY Chandrachud, delivered its verdict on October 17, 2024 on a batch of petitions challenging the constitutional validity of Section 6A of the Citizenship Act, 1955. The Constitution bench also included Justices Surya Kant, MM Sundresh, JB Pardiwala, and Manoj Misra. In a 4:1 majority, the Constitution bench has today upheld the constitutional validity of Section 6A, with only Justice Pardiwala dissenting.
A total of three judgments were delivered upon the said case, with CJI Chandrachud authoring his judgment, Justice Surya Kant authoring the second concurring judgment for himself as well as on behalf of Justices Misra and MM Sundresh. Justice Pardiwala gave a dissenting judgment to hold Section 6A as unconstitutional.
It is essential to note that Section 6A allows foreign migrants of Indian origin, who arrived in Assam between January 1, 1966, and March 25, 1971, to apply for Indian citizenship. Indigenous groups in Assam have contested this section, arguing that it effectively legalises the illegal entry of migrants, particularly from Bangladesh, into the state.
The court reserved its judgment on December 12, 2023, after hearing submissions over four days from key legal representatives, including Attorney General R Venkataramani, Solicitor General Tushar Mehta, and senior advocates Shyam Divan and Kapil Sibal.
Section 6A and the Assam Accord: Central to the case
Section 6A was introduced into the Citizenship Act in 1985 as a special provision arising from the Assam Accord—a tripartite agreement signed between the central government under former Prime Minister Rajiv Gandhi, the Assam government, and the All Assam Students Union (AASU). This agreement sought to address the issue of illegal immigration in Assam and preserve the cultural and linguistic identity of the Assamese people.
According to the provision, migrants from Bangladesh and other specified territories who entered Assam between January 1, 1966, and March 25, 1971, were eligible to register for Indian citizenship under Section 18. The Accord fixed March 25, 1971, as the cut-off date for citizenship, in line with the culmination of the Assam agitation, which aimed to identify and deport illegal immigrants. The Supreme Court will now decide whether this provision stands in violation of the Indian Constitution, following a challenge by multiple petitioners. Chander Uday Singh appeared for Citizens for Justice & Peace (CJP) who had also intervened in the matter.
Brief of the three judgments delivered (based on the pronouncements)
Key observations in CJI DY Chandrachud’s opinion on Section 6A: In his judgment, Chief Justice DY Chandrachud noted that the Assam Accord was a political solution to address the issue of illegal migration, while Section 6A of the Citizenship Act was its legislative counterpart. His opinion upheld the constitutionality of Section 6A, stating that Parliament had the legislative authority to enact this provision. The judgment emphasised that Section 6A was created to balance humanitarian concerns with the need to protect Assam’s local population from the effects of illegal immigration.
The Court also justified Assam being singled out from other states sharing borders with Bangladesh. It reasoned that the proportion of immigrants to the local population in Assam was significantly higher compared to other border states. For instance, while West Bengal had 57 lakh migrants, Assam had 40 lakhs, but the impact in Assam was more profound due to its smaller geographical area. Thus, the influx of migrants posed a much greater challenge to Assam’s demographic balance.
CJI Chandrachud stated during the pronouncement that “The magnitude of influx of migrants in Assam is 40 Lakhs which is higher in Assam as compared to other states considering the smaller land size.”
Furthermore, CJI Chandrachud’s judgment affirmed that the cut-off date of March 25, 1971, was reasonable, as it coincided with the end of the Bangladesh Liberation War. The objective of the provision, according to the court, must be viewed in the context of that war. The Court concluded that Section 6A was neither “over-inclusive nor under-inclusive” in its scope and application.
According to LiveLaw, CJI Chandrachud stated “The objective of the provision (S.6A) must be understood in the backdrop of the Post-Bangladesh War.”
CJI Chandrachud also addressed concerns related to Article 29(1) of the Constitution, which protects the rights of citizens to preserve their linguistic and cultural heritage. He clarified that the mere presence of diverse ethnic groups in Assam did not automatically infringe upon the rights of the indigenous population. Petitioners, he said, needed to demonstrate that the existence of another ethnic group directly hindered the ability of the local population to safeguard its language and culture.
Justice Surya Kant’s perspective on Section 6A and Fraternity: Justice Surya Kant, in his judgment on Section 6A of the Citizenship Act, provided a distinct view, particularly addressing the argument that the provision violated the principle of fraternity enshrined in the Preamble to the Constitution. The petitioners had argued that the influx of migrants allowed citizenship under Section 6A undermined the bond of fraternity among Indian citizens, especially within Assam’s indigenous communities. They contended that the demographic shifts resulting from this provision threatened the social harmony of the state. Justice Surya Kant firmly rejected this argument.
He clarified that the concept of fraternity cannot be understood in such a narrow, exclusionary sense. According to him, fraternity does not imply that individuals or communities should have the right to determine who their neighbours or fellow citizens should be. The principle, he explained, is about promoting a sense of brotherhood and unity among citizens, irrespective of ethnic or cultural backgrounds.
During the pronouncement, Justice Kant said “We have formed the questions like if Section 6A suffers from manifest arbitrariness, is against the principle of fraternity, causes external aggression or internal disturbances etc and if so, how can the 2 legislations be read harmoniously. Our conclusion is that petitioners want to control and choose the meaning of Fraternity and who become their neighbours.”
In his judgment on Section 6A of the Citizenship Act, Justice Surya Kant upheld the provision, affirming that the Parliament had the legislative competence to lay down the conditions under Section 6A. He emphasised that this legislative measure, stemming from the Assam Accord, was a rational solution designed to address the complex issue of illegal immigration into Assam.
As per LiveLaw, Justice Kant stated “Parliament had legislative powers to lay down the conditions under S.6A and that cannot be controlled.”
Justice Kant rejected the petitioners’ arguments against the provision, particularly their claim of manifest arbitrariness regarding the cut-off date of March 25, 1971. He stated that the cut-off date was a policy decision by the legislature, not arbitrary, and could not be judicially reviewed.
Justice Kant provided “that argument of manifest arbitrariness on the basis of the cut-off date is not accepted by us, it is upon the policy of the legislature. Section 6A does not operate perpetually, cannot suffer from manifest arbitrariness.”
Justice Kant also dismissed the argument that Section 6A contradicted Section 9 of the Citizenship Act. Notably, Section 9 of the Citizenship Act, 1955 deals with the termination of citizenship in cases where an Indian citizen acquires citizenship of another country. Through his judgment, Justice Kant clarified that both provisions could coexist and should be read harmoniously. In doing so, he also noted that Section 6A does not perpetually confer citizenship and must be enforced under specific conditions, while immigrants entering after the 25th of March, 1971, cannot be conferred citizenship.
He further addressed the term “ordinary resident,” noting that while the authorities might interpret it in legal terms, for many affected individuals, the expression might be too vague and hard to understand. This complexity, however, did not render the provision unconstitutional.
On the question of whether Section 6A violated the fraternity principle enshrined in the Preamble of the Indian Constitution, Justice Surya Kant rejected the petitioners’ contention. He observed that fraternity cannot be understood in a narrow sense, where one has the right to choose their neighbours. Fraternity, in his view, does not imply exclusion or the right to block certain groups from citizenship based on ethnic or cultural concerns.
Justice Kant also noted that despite the petitioners’ claims, they failed to demonstrate any constitutional impact on their communities due to Section 6A. Therefore, the challenges based on Articles 21 and 29 (which protect the right to life and the right to conserve language and culture) were not substantiated.
Justice Kant stated “the petitioners have not been able to show a constitutional impact on their communities. The challenge on grounds of Article 21 and 29 are thus closed.”
Finally, Justice Kant emphasised that the Foreigners Tribunals should be used to determine the status of suspected illegal immigrants in Assam and stated that the Foreigners Act and related provisions should be read in harmony with Section 6A to ensure proper detection of foreigners.
However, he also criticised the inadequate enforcement of Section 6A, which had led to widespread injustice in Assam.
Justice Surya Kant also said that “There is inadequate enforcement of the same (Section 6A) leading to widespread injustice. The citizenship can be given between the cut off dates subject to fulfilling the conditions, the immigrants who enter after 25 March 1971 cannot be conferred citizenship.”
To understand the verdict of the four judges (CJI DY Chandrachud, Justice Surya Kant, MM Sudaresh, Manok Misra), it is crucial to look at the Conclusions and Directions at Para 387 of the Judgement authored by Justice Surya Kant:
A. Conclusions and Directions
- Drawing upon the comprehensive analysis presented in the preceding sections, we thus hold that Section 6A falls within the bounds of the Constitution and does not contravene the foundational principles of fraternity, nor does it infringe upon Articles 6 and 7, Article 9, Article 14, Article 21, Article 29, Article 326, or Article 355 of the Constitution of India. Furthermore, Section 6A does not clash with the IEAA or established principles of international law. Hence, the constitutional validity of Section 6A, as contested before us, is resolved accordingly.
- Nevertheless, it is imperative to acknowledge and address the valid concerns raised by the Petitioners regarding the persistent immigration in the State of Assam post 25.03.1971. Although Section 6A conferred citizenship rights exclusively to immigrants arriving before this cut-off date, there seems to still be an ongoing influx of migrants through various border States of India. Due to porous borders and incomplete fencing, this unceasing migration imposes a significant challenge.
- On account of these concerns, we passed an order on 07.12.2023 and directed the Respondent Union of India to provide data, inter alia, the estimated inflow of illegal migrants into India after 25.03.1971, the number of cases presently pending before the Foreigner Tribunals for such immigrants and the extent to which border fencing has been carried out.
- Regarding the inquiry into the estimated influx of illegal migrants post 25.03.1971, the Union of India was unable to provide precise figures due to the clandestine nature of such inflows. This underscores the necessity for more robust policy measures to curb illicit movements and enhance border regulation. Additionally, it was disclosed that approximately 97,714 cases are pending before the Foreigner Tribunals, and nearly 850 kilometres of border remain unfenced or inadequately monitored.
- We hold that while the statutory scheme of Section 6A is constitutionally valid, there is inadequate enforcement of the same—leading to the possibility of widespread injustice. Further, the intention of Section 6A, i.e., to restrict illegal immigration post- 1971 has also not been given proper effect. Accordingly, we deem it fit to issue following directions:
- In view of the conclusion drawn in paragraph 387, it is held that Section 6A of the Citizenship Act, 1955 falls within the bounds of the Constitution and is a valid piece of legislation;
- As a necessary corollary thereto, (i) immigrants who entered the State of Assam prior to 1966 are deemed citizens; (ii) immigrants who entered between the cut off dates of 01.01.1966 and 25.03.1971 can seek citizenship subject to the eligibility conditions prescribed in Section 6A (3); and (iii) immigrants who entered the State of Assam on or after 25.03.1971 are not entitled to the protection conferred vide Section 6A and consequently, they are declared to be illegal immigrants. Accordingly, Section 6A has become redundant qua those immigrants who have entered the State of Assam on or after 25.03.1971;
- The directions issued in Sarbananda Sonowal (supra) are required to be given effect to for the purpose of deporting the illegal immigrants falling in the category of direction (b) (iii) above;
- The provisions of the Immigrants (Expulsion from Assam) Act, 1950 shall also be read into Section 6A and shall be effectively employed for the purpose of identification of illegal immigrants;
- The statutory machinery and Tribunals tasked with the identification and detection of illegal immigrants or foreigners in Assam are inadequate and not proportionate to the requirement of giving time-bound effect to the legislative object of Section 6A read with the Immigrants (Expulsion from Assam) Act, 1950, the Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, the Passport (Entry into India) Act, 1920 and the Passport Act, 1967; and
- The implementation of immigration and citizenship legislations cannot be left to the mere wish and discretion of the authorities, necessitating constant monitoring by this Court.392. For this purpose, let this matter be placed before Hon’ble the Chief Justice of India for constituting a bench to monitor the implementation of the directions issued hereinabove.”
Dissenting opinion of Justice Pardiwala focusing on cultural preservation in Assam: Justice Pardiwala’s dissenting opinion highlighted two primary purposes of Section 6A— to adopt a humanitarian approach for the people of Assam while simultaneously protecting the region’s culture. He emphasised the importance of considering the intentions of the parties involved when the Assam Accord was signed.
Justice Pardiwala stated that “Whether the afflux of time has bended the Section 6A, my line of reasoning is that piece of legislation may be valid at the time of enactment but by afflux of time, it has become temporarily flawed”
Furthermore, he provided that “the S.6A had two purposes – adopting a humanitarian approach for people of Assam and on the other hand protecting the culture of the Assam. I am of the view that intention of the parties must be kept in mind when they signed the Accord.”
Justice Pardiwala noted that there was no provision requiring voluntary declarations or a clear detection process. He elaborated on the workings of the Foreigners Tribunals, stating that the onus of proof lies with those suspected of being foreigners, specifically individuals identified as citizens between 1966 and 1971. He found it illogical for these individuals to wait for identification and argued that there was no valid reason preventing them from initiating the relevant provisions themselves. On the issue of temporal reasonableness, he criticised the lack of a time limit for Tribunals to complete their detection processes, suggesting that this could lead to adverse consequences for the state and leave citizens from the 1966-71 period in a state of limbo.
According to LiveLaw, Justice Pardiwala stated that “The onus is on the suspected foreigner person detected as citizen from 1966-71. It appears to me illogical that the person has to await identification, there is no plausible reason why he shouldn’t put into motion the provision. The clock only starts to tick once only detection is made by Tribunal and there is not period of time when the detection be completed by the Tribunal.”
He pointed out that Section 6A (3) was meant to serve the spirit of the Assam Accord but argued that its practical implementation countered this purpose.
Justice Pardiwala stated “no person would voluntarily want to get detected as foreigner due to the subjectivity of the procedure. Seeing thus that working of the Section 6A (3) goes against the purpose of the provision, the provision counter-serves the object.”
Justice Pardiwala observed that the structure created by Section 6A, which established two categories of citizenship, could only be effective if a detection process was successfully conducted. However, since the detection was not feasible, he questioned the rationale for creating such categories.
Justice Pardiwala stated that “the underline object of creating 2 categories under S.6A could only be achieved by a detection process, however, since the detection could not be achieved, I find no reason to believe the creation of 2 categories.”
He further asserted that the mechanism did not allow individuals from the 1966-71 category to voluntarily obtain citizenship, and suggested that while the provision may have been valid at the time of enactment, it had become redundant over time, thus failing the test of manifest arbitrariness.
The dissenting opinion noted that while the provision may have been valid at the time of its enactment, it has since become redundant due to the passage of time, forming a crucial part of the argument against manifest arbitrariness.
Additionally, the dissent highlights that, contrary to the view expressed by Justice Suryakant, the issue of illegal immigration cannot be overlooked in light of Section 6A. The dissent asserts that illegal immigration into Assam persists today, perpetuated by the provisions of Section 6A. It further clarifies the distinction between Sections 6 and 6A, emphasising that under Section 6, individuals from Pakistan who arrived during the Partition bore the responsibility to prove their citizenship, unlike the current situation under Section 6A.
Justice Pardiwala stated that “the ultimate view taken by my lord is that illegal immigration cannot be viewed due to Section 6A. However, the illegal immigration into Assam till today continued due to the influx under Section 6A. The difference between Section 6 and Section 6A was that under S.6 persons from Pakistan coming to India during Partition – onus was on them to prove citizenship and not the State.”
In conclusion, the dissenting opinion of Justice Pardiwala passed the following directions, holding however that there will be no retrospective application:
“Para 218
- Immigrants who migrated before 01.01.1966 and were conferred deemed citizenship on the date of commencement of Section 6A(2), subject to fulfilment of all the conditions mentioned therein, shall remain unaffected.
- Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and have been granted citizenship after following the due procedure prescribed under Section 6A(3) shall remain unaffected.
- Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and who have been detected as foreigners and have registered themselves with the registering authority as per the prescribed rules, shall be deemed to be citizens of India for all purposes from the date of expiry of a period of ten years from the date on which they were detected as foreigners.
- Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and who have been detected as foreigners but have not registered themselves with the registering authority within the prescribed time limit as per the Citizenship Rules, 2009 will no longer be eligible for the benefit of citizenship.
- Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and whose applications are pending for adjudication before the Foreigners Tribunal, or who have preferred any appeal against any order of such tribunal which is pending before any court will continue to be governed by Section 6A(3) as it stood immediately prior to the pronouncement of this judgment, till their appeals are disposed of.
- From the date of pronouncement of this judgment, all immigrants in the State of Assam shall be dealt with in accordance with the applicable laws and no benefit under Section 6A shall be available to any such immigrant. To be precise, if someone is apprehended as an illegal immigrant after the pronouncement of this judgment, Section 6A of the Citizenship Act will have no application.”
Background of the issue: Challenges to Section 6A, the NRC, and the Assam Accord
The roots of the current legal challenges to Section 6A of the Citizenship Act, 1955, trace back to the Assam Accord of 1985, an agreement reached between the Rajiv Gandhi-led central government and leaders of Assam. This agreement sought to address the long-standing issue of illegal immigration, particularly from Bangladesh, and its impact on Assam’s demographic and cultural identity.
The Assam Accord, which came after six years of protests led by the All Assam Students Union (AASU), included provisions for updating the National Register of Citizens (NRC) in Assam. A key part of the agreement, Paragraph 5, was codified in the Citizenship Act through the introduction of Section 6A. This section outlined a new procedure for granting Indian citizenship to migrants who entered Assam between January 1, 1966, and March 25, 1971. Those who migrated during this period could either become citizens immediately or after a ten-year waiting period.
However, in November 2012, the Assam Sanmilita Mahasangha challenged Section 6A in the Supreme Court, arguing that it created a separate pathway to citizenship for these migrants, thereby discriminating against other Indian citizens. This legal challenge questioned whether Section 6A violated the Constitution by granting preferential treatment to a specific group of migrants. Meanwhile, the NRC process remained inactive until 2013, when a Supreme Court Bench, comprising Justices R.F. Nariman and Ranjan Gogoi, ordered its update in Assam.
By December 2015, the Supreme Court referred the challenge to Section 6A to a five-judge Constitution Bench for further examination. On November 1, 2022, the Constitution Bench decided to hear the pleas challenging the constitutional validity of Section 6A, which was inserted through the 1985 amendment as part of the Assam Accord. The court set December 13, 2022, for directions in the case and instructed the parties to submit their written submissions, precedents, and documentary evidence.
The hearing on this matter finally began on December 5, 2023, before the Constitution Bench. Section 6A, which enables migrants from Bangladesh who arrived in Assam after January 1, 1966, but before March 25, 1971, to apply for Indian citizenship, remains at the centre of this legal battle. Several indigenous groups from Assam have opposed this provision, claiming it legitimises illegal immigration from Bangladesh, thus undermining the cultural, social, and demographic integrity of Assam.
Key contentions raised by petitioners against Section 6A of the Citizenship Act
The petitioners raised several key contentions against Section 6A of the Citizenship Act. First, they argued that the provision violates the essential fabric of the Constitution as outlined in the Preamble, particularly the principles of fraternity, citizenship, unity, and the integrity of India. They also contended that Section 6A infringes upon fundamental rights guaranteed under Articles 14 (equality), 21 (life and liberty), and 29 (protection of cultural rights) of the Constitution of India. Additionally, the petitioners claimed that the provision undermines the political rights of citizens as provided under Articles 325 and 326, which govern electoral rights.
Furthermore, they challenged the legislative competence behind Section 6A, asserting that it contradicts the constitutional cut-off date for determining citizenship and represents legislative overreach. The petitioners also argued that the provision erodes democratic values, federalism, and the rule of law, which are fundamental components of the basic structure of the Constitution.
Based on these arguments, the petitioners sought several remedies. They requested that the court declare Section 6A unconstitutional for violating Articles 14, 21, and 29. They also sought to have Rule 4A of the 2003 Rules and a 2013 notification declared ultra vires. Alternatively, they asked for a directive to the Union of India to develop a policy, in consultation with states, to proportionally resettle immigrants who arrived in Assam after January 1951 across the country. Additionally, they requested that the Union complete the fencing of the border and take steps to identify, detect, and deport illegal immigrants from Assam. Lastly, they called for the removal of encroachers from protected tribal lands under the Assam Lands and Revenue Regulations.
Brief on the hearings: Arguments for and against Section 6A of the Citizenship Act
During the hearings on the petitions challenging Section 6A of the Citizenship Act, both the union government and the Assam government argued in defence of the provision. They maintained that Section 6A was introduced to address a unique situation that arose following the Assam Accord of 1985, which aimed to quell violent protests in the state. The union government emphasised that Section 6A was part of a legislative policy arising from a political settlement based on relevant considerations of state and foreign policy. It further argued that it would be difficult for the court to establish judicially manageable standards to assess the constitutional validity of such a provision.
The union government also provided data during the hearings, stating that as of October 31, 2022, foreigner tribunals had identified 32,381 individuals as foreigners. Of these, 17,861 were granted Indian citizenship after registering with the Foreigners Regional Registration Office (FRRO). When asked by the court to provide information on the number of illegal immigrants who entered Assam after the March 25, 1971 cut-off date, the union admitted that an accurate figure was difficult to provide due to the clandestine nature of such entries. It acknowledged that the process of detecting, detaining, and deporting illegal foreign nationals remains complex and ongoing.
Solicitor General Tushar Mehta, representing the union government, highlighted the challenges posed by illegal immigration, noting that India’s porous borders allow for the secret entry of immigrants. However, this argument was countered by Jamait Ulema-i-Hind, an intervenor in the case, which contended that migration has always been a part of Assam’s history and that such migration can never be fully mapped.
On the opposing side, senior advocates Shyam Divan, KN Chaudhary, and Vijay Hansaria led the arguments against Section 6A. They argued that Parliament, by enacting this provision, had effectively amended the Constitution. They cited Article 6, which set a cut-off date of January 1950 for migrants from Pakistan who arrived after July 19, 1948, allowing them to become citizens. According to them, Section 6A shifted this cut-off to January 1966 for migrants from Bangladesh, further extending it to March 25, 1971, for residents of East Pakistan, thereby altering the original constitutional provisions.
Additionally, the petitioners submitted that the settlement of illegal immigrants in Assam had significantly altered the state’s demographic composition. As a result, these migrants had gained political dominance in 32 out of the 126 assembly constituencies in Assam.
Citizens for Justice and Peace’s intervention: Senior Advocate CU Singh’s arguments
In the ongoing case concerning Section 6A of the Citizenship Act, Citizens for Justice and Peace (CJP) also intervened, presenting their stance through Senior Advocate CU Singh on December 12. Singh argued that the petitioners were not merely advocating for their own rights but were attempting to strip away the rights that had been granted to others over several decades.
He emphasised that Section 6A, which governs the determination of foreigners under the Assam Accord, did not violate Article 14 of the Constitution, which guarantees equality before the law. Singh pointed out that granting citizenship to one specific group of people does not automatically constitute a violation of the rights of another group. Furthermore, he argued, those denied citizenship could raise claims of discrimination, but it was not for others to question why citizenship had been granted to those who qualified under Section 6A.
Singh made a compelling case, stating, “This isn’t about the petitioners asserting their own rights; they are seeking to revoke the rights that others have gained over the past 27 to 30 years—today, that’s a span of 40 years.” He further clarified, “Section 6A doesn’t breach Article 14; rather, it legalises the process of determining foreigners as per the Assam Accord. Just because you grant citizenship to one group doesn’t mean there’s an automatic violation. Only those who are denied citizenship can claim a violation, but can someone else challenge why it was given to another?”
This argument underscored CJP’s position that the petitioners’ demands would upend settled rights and protections afforded to individuals under the provisions of the Assam Accord.
The Advocate-on-Record was Senior Advocate Aparna Bhatt, and research assistance in filling the written statement and an additional note was given by Advocate Mrinmoy Dutta of the Gauhati High Court and Advocate Gautam Bhatia.
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