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, harmonising India’s commitments, international relations and administrative realities.

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.

Related:

Supreme Court upholds constitutional validity of Section 6A of Citizenship Act in 4:1 verdict, creates permanent bench for adjudication

Assam detention camps tighten rules, leaving families struggling to visit loved ones detained in Matia transit camp

Assam government’s efforts to intensify crackdown on “Suspected/Declared Foreigners” sparks fears of brute targeting & rights denials

Supreme Court seeks Assam government’s response on plan to deport over 200 declared foreigners detained in transit camp

Assam: Partial relief, over 9 lakh people to get Aadhaar card, serious questions for excluded 18 lakh

The post Section 6A of the Citizenship Act, 1955 is constitutional, says Supreme Court in a 4:1 Judgement; Justice J.B. Pardiwala dissents appeared first on SabrangIndia.

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

387. 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.
388. 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.
389. 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.
390. 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.
391. 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:

1. 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;
2. 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;
3. 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;
4. 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;
5. 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
6. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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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