How latest Supreme Court ruling furthers the debate on citizenship

On Section 6A of the Citizenship Act, which introduced a cut-off date specifically under the Assam Accord, the Court, while upholding it, said that citizenship cannot be interpreted in “a negative manner that selectively applies it to a particular segment while labelling another faction as ‘illegal immigrants’.”

In his opinion, concurring with the majority view, Chief Justice of India DY Chandrachud said that while the Constitution recognises a “right to conserve culture,” the provision must be read in light of the “multi-cultural and plural nation that India is.”

“The claim of the petitioners is that Section 6A is violative of Article 29 because it permits people from Bangladesh who have a distinct culture to be ordinarily resident in Assam and secure citizenship which infringes upon their right to conserve Assamese culture,” the Court noted while rejecting the argument.

These observations are crucial as they form the backdrop of another Constitutional challenge involving citizenship that is also pending before the Supreme Court — the challenge to the 2019 Citizenship Amendment Act.

The contentious new law, introduced as Section 6B of the Citizenship Act, seeks to grant citizenship to a class of migrants belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities — not Muslim — who entered India before December 31, 2014 from three neighbouring countries: Pakistan, Afghanistan or Bangladesh.

The CAA carves out an exception for tribal areas of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line.”

The amendment was challenged before the Supreme Court in 2020 by the Indian Union Muslim League (IUML). Since then, over 200 petitions have been filed and tagged with the IUML’s challenge including by the Assam Pradesh Congress Committee and the Asom Gana Parishad.

“We are also apprised of the fact that Parliament has promulgated the Citizenship (Amendment) Act, 2019, and more recently on 11.03.2024 the Government of India has notified the Citizenship (Amendment) Rules, 2024. However, we are not dealing with these provisions given that neither of the parties relied upon these provisions over the course of the proceedings before us,” the majority opinion stated in a footnote.

Particularly, in Assam, the cut-off date in the new law could be at odds with the March 25, 1971 the cut-off date for citizenship, that the Supreme Court has now upheld. This dichotomy does not apply for the rest of India but the government will have to negotiate how Section 6B can be valid for Assam, given that the SC has now upheld Section 6A.

While the SC ruling settles the 1971 cut-off date, it also leaves open the larger question of what happens to those who migrated in the five decades since then.

The majority ruling, recognising this, said 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.”

While there is a legal process for illegal immigrants to be detected, detained and deported, these are issues that involve larger considerations. The Supreme Court has, essentially, upheld the Parliament’s powers to frame citizenship rules both in terms of a political solution and a legislative framework. These issues will be tested again before Parliament and courts.

The majority opinion said that it was the “framers’ intention to afford Parliament nearly unrestricted flexibility in crafting laws pertaining to citizenship.”