SC upholds Section 6A of Citizenship Act: what is the provision, why it was challenged

Section 6A was added to the statute in 1985 following the signing of the Assam Accord between the Rajiv Gandhi government at the Centre and the All Assam Students’ Union (AASU), after a six-year-long agitation against the entry of migrants from Bangladesh into Assam.

The petitioners include the NGO Assam Public Works, the Assam Sanmilita Mahasangha, and others who claim that setting a different cut-off date for citizenship in Assam is a discriminatory practice.

What does Section 6A of the Citizenship Act provide?

A key element of the Assam Accord was determining who is a foreigner in the state. Clause 5 of the Assam Accord states that January 1, 1966 shall serve as the base cut-off date for the detection and deletion of “foreigners” but it also contains provisions for the regularisation of those who arrived in the state after that date and up till March 24, 1971.

Section 6A was inserted into the Citizenship Act to facilitate this. All persons of “Indian origin” who entered the state before January 1, 1966 and have been “ordinarily resident” in Assam ever since “shall be deemed to be citizens of India”. Additionally, it provides that anyone who entered and resided in Assam after January 1, 1966 but before March 24, 1971 who has been “detected to be a foreigner” would have the opportunity to register themselves according to rules made by the Central Government.

Following such registration, they would be granted the rights of citizens except that they would not be included in electoral rolls for the purposes of voting in elections for a period of 10 years. Those entering after March 24, 1971, would be considered illegal immigrants.

The verdict may also have an effect on the National Register for Citizens (NRC) in Assam. In 2019 a two-judge bench led by then CJI Ranjan Gogoi passed an order stating “We make it clear that subject to orders as may be passed by the Constitution Bench in Writ Petition (C) No.562 of 2012 and Writ Petition (C) No.311 of 2015, National Register of Citizens (NRC) will be updated.”

What did the court decide?

The majority opinion delivered by Justice Surya Kant (signed by Justices M M Sundresh and Manoj Misra) held that Parliament has the power to grant citizenship under different conditions so long as the differentiation is reasonable.

As the migrant situation in Assam was unique in comparison to the rest of India at the time, it was justified to create a law to specifically address it and doing so would not violate the right to equality under Article 14 of the Constitution. CJI Chandrachud pointed out in his separate but concurring opinion that the impact of immigration in Assam was higher in comparison to other states so “singling out” the state is based on “rational considerations”

Both the majority and CJI Chandrachud also held that the petitioners did not provide any proof to show that the influx of migrants affected the cultural rights of citizens already residing in Assam. Article 29(1) gives citizens the right to ‘conserve’ their language and culture. CJI Chandrachud stated that “Mere presence of different ethnic groups in a state is not sufficient to infringe the right guaranteed by Article 29(1)”.

The majority also held that the cut-off dates of January 1, 1966 and March 24, 1971 were constitutional as Section 6A and the Citizenship Rules, 2009 provide ‘legible’ conditions for the grant of citizenship and a reasonable process.

Justice Pardiwala on the other hand, in his dissenting opinion, held that the provision was unconstitutional and suffered from “temporal unreasonableness” as it does not prescribe a time limit for detecting foreigners and determining whether they were citizens. This, he held, relieves the government of the burden of identifying immigrants and deleting them from the electoral rolls which goes against the objective of providing citizenship while protecting the cultural and political rights of the people of Assam.

Further, he noted that there is no process for an immigrant to voluntarily be detected so if they fall in the timeframe provided under Section 6A. They must wait for the government to identify them as a “suspicious immigrant” before being referred to a foreigner tribunal for a decision, which Justice Pardiwala called “illogically unique”.

Why was Section 6A challenged?

The petitioner claim that the cut-off date provided in Section 6A is discriminatory and violates the right to equality (Article 14 of the Constitution) as it provides a different standard for citizenship for immigrants entering Assam than the rest of India — which is July 1948. The Assam Sanmilita Mahasangha (ASM), one of the lead petitioners in the case, argued that the provision is “discriminatory, arbitrary and illegal”.

They also claim that the provision violates the rights of “indigenous” people from Assam. Their petition, which was filed in 2012, states that “the application of Section 6A to the State of Assam alone has led to a perceptible change in the demographic pattern of the State and has reduced the people of Assam to a minority in their own State. The same is detrimental to the economic and political well-being of the State and acts as a potent force against the cultural survival, political control and employment opportunities of the people.”

During the hearings, the petitioners argued that changing demographics in the state will affect the rights of “indigenous” Assamese people to conserve their culture under Article 29 of the Constitution of India.

What were the arguments in defence of Section 6A?

The Centre on the other hand has relied on Article 11 of the Constitution which gives Parliament the power “to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship”. It argued that this gives Parliament the power to make laws on citizenship including for a “particular object” without violating the right to equality.

Other respondents, including the NGO Citizens for Justice and Peace, argued that if Section 6A is struck down a large swathe of current residents will be rendered “stateless” and be considered foreigners after enjoying citizenship rights for over 50 years. They also argued that the demographic pattern of the state changed in response to geo-political events even before Section 6A was introduced and that Assam has long since been a multi-lingual and diverse state.