Explained: 4 issues in Supreme Court’s Assam verdict

The majority comprising Chief Justice of India (CJI) D Y Chandrachud, and Justices Surya Kant, M M Sundresh and Manoj Misra, upheld Section 6A of The Citizenship Act, 1955, which codified the political consensus of the 1985 Assam Accord. Justice J B Pardiwala dissented.

The tripartite Assam Accord signed among the central and Assam governments and the leaders of the Assam Movement set January 1, 1966 as the base cut-off date for the detection of “foreigners” and their deletion from electoral rolls. It also provided a process for the grant of citizenship to those who arrived in the state after that date, upto March 24, 1971.

These aspects were codified in Section 6A of The Citizenship Act. In 2014, a two-judge Bench referred the challenge to Section 6A to a Constitution Bench, highlighting some key questions of law.

Assam Accord.

Does Parliament have the power to make law regulating citizenship?

The legal scheme for granting citizenship for those who migrated from Pakistan is in Articles 6 and 7 of the Constitution. The petitioners argued that Section 6A, which deals with migrants from East Pakistan (later Bangladesh) amends this provision — a change that can only be made through a constitutional amendment.

CJI Chandrachud held that Articles 6 and 7 are only meant to determine citizenship at the commencement of the Constitution on January 26, 1950. Section 6A, on the other hand, “deals with those who are not covered by the constitutional provisions”.

Justice Kant in his majority opinion (for himself and Justices Sundresh and Misra) wrote that “Section 6A aligns with the fundamental purpose of Articles 6 and 7, which was to extend citizenship rights to those affected by the country’s partition”.

As Articles 6 and 7 were aimed at safeguarding the rights of those citizens who found themselves residing in Pakistan after Partition, Section 6A grants citizenship to persons of Indian origin migrating from erstwhile East Pakistan “due to political disturbances in a foreign territory”, the court held.

Both CJI Chandrachud and Justice Kant referred to Entry 17 of the Union List, which gives Parliament the power to make laws to address “Citizenship, naturalisation and aliens”.

They also referred to Article 11 of the Constitution, under which Parliament can make “any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship”. None of the other Articles in this Part of the Constitution (including Articles 6 and 7) will “derogate” or take away from this power, they said.

That Parliament can amend the law relating to citizenship is the most significant takeaway from the ruling — since this could have ramifications for other cases, including the challenge to the 2019 Citizenship (Amendment) Act.

Does Section 6A violate the Right to Equality?

The petitioners argued that Section 6A, which was specifically drafted for Assam, violates the principle of equality because (i) it confers citizenship only to migrants to Assam, and (ii) if curbing Bangladeshi migrants is the issue, then other border states are also excluded. They also argued that the March 24, 1971 cut-off date is arbitrary.

The SC held that the events leading up to the signing of the Assam Accord placed the state in a unique position, even when compared to other border states.

“…The magnitude of influx to Assam and its impact on the cultural and political rights of the Assamese and Tribal populations is higher [than elsewhere],” CJI Chandrachud said. He noted that although West Bengal has a higher immigrant population than Assam, the impact on Assam is greater because of its smaller size and population. It is, therefore, “rational” to classify Assam as separate from other border states for the purposes of 6A, he held.

Justice Kant held that “since a piquant situation such as that in Assam [because of the Movement] did not exist in any of the other states, Section 6A’s objective did not extend to allowing such citizenship in these other States”.

Does Section 6A facilitate “external aggression” by allowing illegal immigration?

The petitioners argued that extending the cut-off date to include migrants as citizens went against the SC’s ruling in Sarbananda Sonowal vs Union of India (2005), in which the court held that “illegal immigration” falls under the definition of “external aggression”.

In Sonowal, the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) was under challenge. The court struck down the law, which also applied only to Assam, saying it was ineffective in dealing with illegal immigration in comparison to laws such as the Foreigners Act, 1946, which applied to the entire country.

Both CJI Chandrachud and Justice Kant expressed reservations in applying Sonowal in the challenge to Section 6A.

Justice Kant held that Section 6A does not allow for “unabated migration”, and instead offers a “practical solution” in the form of a “controlled and regulated form of immigration”, which does not amount to “external aggression”.

CJI Chandrachud asked whether a law be challenged for “violating” Article 355, which is an Emergency Provision under the Constitution. Allowing this would lead to “disastrous consequences”, and would open the doors for petitions seeking to invoke other emergency powers which “would effectively place the emergency powers with citizens and courts”, he said.

Does granting citizenship to migrants violate the rights of Assamese people to conserve their culture?

Article 29(1) of the Constitution guarantees citizens the fundamental right to conserve the “distinct language, script or culture of its own”. The petitioners argued that Section 6A is violative of Article 29, since conferring citizenship to migrants from Bangladesh increases the Bengali population and affects the “culture of the Assamese population”.

The majority verdict rejected the argument that change in the demography of Assam erodes the rights of indigenous Assamese.

Accepting this contention “would undermine the idea of fraternity envisaged by our Constitutional drafters, and bring to life their fears by threatening the cohesion of our diverse nation”, Justice Kant held. CJI Chandrachud held that “the mere presence of different ethnic groups in a State is not sufficient to infringe the right guaranteed by Article 29(1)”.

What Justice Pardiwala’s dissenting opinion said

*The dissent flagged the lack of a proper mechanism to grant citizenship to those who migrated between January 1, 1966 and March 25, 1971. It is “illogically unique” that the procedure does not allow someone to voluntarily submit themselves to the process under Section 6A of The Citizenship Act, and that they must instead wait for the government to detect or identify them as a “suspicious immigrant”, so that they can then appear before a foreigner’s tribunal to prove their citizenship.

*Also, even if Section 6A was constitutional at the time of its enactment, over time it has proven to be ineffective. Without a proper timeline, Section 6A “counter-serves the very purpose of its enactment, which is the speedy and effective identification of foreigners of the 1966-71 stream”, he said.

*Lack of a timeframe would “relieve” the government of its burden to identify immigrants belonging to the “1966-71 stream” and delete them from the electoral rolls. These immigrants would be incentivised to remain on the electoral rolls for an “indefinite period” until they are detected.

*“The object of removal of the immigrants belonging to the 1966-71 stream from the electoral rolls could only be meaningful if it was given effect through an exercise of en masse detection and deletion (from electoral rolls) conducted within a fixed time period,” Justice Pardiwala said.