Justice Pardiwala dissents: Passage of time made Section 6A of the Citizenship Act invalid, more prone to abuse

Dealing with Section 6A(3) of the Act – it pertains to registration of a person of Indian origin who came to Assam between January 1, 1966 and March 25, 1971, has been ordinarily a resident in Assam since entry and has been detected to be a foreigner by a Tribunal – the judgement said “neither Section 6A nor the rules made thereunder prescribe any outer time-limit for the completion of detection of all such persons” and this has “two-fold adverse consequences”.

“First, it relieves the state from the burden of effectively identifying, detecting, and deleting from the electoral rolls, in accordance with law, all immigrants of the 1966-71 stream. Secondly, it incentivises the immigrants belonging to the 1966-71 stream to continue to remain on the electoral rolls for an indefinite period and only get themselves registered under Section 6A once detected by a competent tribunal. Hence, the manner in which the provision is worded, counter-serves the very purpose of its enactment, which is the speedy and effective identification of foreigners of the 1966-71 stream, their deletion from the electoral rolls, registration with the registering authority and conferring of regular citizenship,” Justice Pardiwala said.

Official of National Register of Citizens (NRC) check the different documents to keep in systematic way in boxes which are submitted by people for National Register of Citizens (NRC) ahead of the release of the final draft of NRC on 31st August 2019. (Express photo)

His ruling said it “was never meant to maintain the status quo regarding the immigrants of the 1966-71 stream. It was enacted with the object of achieving en masse deletion of this category of immigrants from the electoral rolls subsequent to which de jure citizenship was to be conferred on them after a cooling-off period of ten years”.

Justice Pardiwala noted that “placing temporal limitations on the benefits available under Section 6A appears to have been one of the objects of the legislation – as otherwise the provision would go against the spirit of the Assam Accord”.

He said “even the permit system, which was brought in after the partition of the country to allow the immigrants from Pakistan to migrate to India, had a temporal limit to its applicability” and “seen in this context, it appears to me to be unreasonable why Section 6A of the Citizenship Act, which too was brought in to deal with a one-time extraordinary situation, should be allowed to continue for all times to come”.

The ruling said, “continuance of the exercise of detection indefinitely without any temporal limitations promotes the immigrants to stay in Assam, and the immigrants residing in the neighbouring states to come into Assam in the hope of never being detected as a foreigner, or of setting up a defence under Section 6A of the Citizenship Act upon identification to claim its benefit”.

Justice Pardiwala was of the “considered opinion” that “the open-ended nature of Section 6A has, with the passage time, become more prone to abuse due to the advent of forged documents to establish, inter-alia, wrong date of entry into Assam, inaccurate lineage, falsified government records created by corrupt officials, dishonest corroboration of the date of entry by other relatives so as to aid illegal immigrants who are otherwise not eligible under Section 6A by virtue of having entered into Assam after 24.03.1971.”

He said “while the object that was sought to be achieved long back with the aid of the enactment of Section 6A of the Citizenship Act remained a distant dream, its misuse has only continued to increase with the efflux of time.”

Justice Pardiwala ruled that “Assam Accord was a one-time political settlement, arrived at in the specific context of widespread violence and agitation in Assam. The extraordinary conditions existing in the years 1979-85 cannot provide a permanent and perennial ground for continuation of a manifestly arbitrary provision, which is uncertain and indeterminable owing to its sui generis mechanism.”