In a 4:1 majority ruling, Supreme Court upheld constitutional validity of Section 6A of Citizenship Act

The bench ruled, “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”.

The provision was introduced in 1985 following the signing of the Assam accord between the Government of India and agitating groups in the state and says that all those who came to Assam on or after January 1, 1966, but before March 25, 1971, from Bangladesh at the time of commencement of the Citizenship (Amendment) Act, 1985, and since then are residents of Assam, can register for citizenship.

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)

‘Cut-off date reasonable’

Writing for himself, CJI Chandrachud said Section 6A is not violative of Articles 6 and 7 of the Constitution, which prescribe a cut-off date for conferring citizenship for migrants from East and West Pakistan at the “commencement of the Constitution”, that is January 26, 1950. “Legislative objective of Section 6A was to balance the humanitarian needs of migrants of Indian origin and the impact of the migration on the economic and cultural needs of Indian States,” said CJI Chandrachud.

“Though other states share a greater border with Bangladesh, the impact of migration in Assam in terms of numbers and resources is greater. Thus, the yardstick of migration to Assam is reasonable. The cut-off date of March 25, 1971, is reasonable because the Pakistani Army launched Operation Searchlight to curb the Bangladeshi nationalist movement in East Pakistan on March 26, 1971. Migrants before the operation were considered migrants of the Indian partition; and “both the above yardsticks have a rational nexus with the object of Section 6A”.

“Undocumented migrants could be registered as citizens under Section 5(1)(a) of the Citizenship Act before it was amended by the Citizenship (Amendment) Act 2003 to exclude ‘illegal immigrants’. Thus, the claim of the petitioner that Section 6A is unconstitutional because instead of preventing migration to Assam, it incentivizes migrants in other states to come to Assam to secure citizenship through Section 6A is erroneous,” said the Supreme Court bench.

Justice Surya Kant, writing for himself and Justices M M Sundresh and Manoj Misra, said, “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.”

“Section 6A does not clash with the IEAA — Immigrants (Expulsion from Assam) Act, 1950 — or established principles of international law,” said the ruling.

Statutory machinery and Tribunals

The court also acknowledged concerns about illegal immigration and said they need to be addressed. “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”. “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, ie, to restrict illegal immigration post-1971 has also not been given proper effect.”

The court said the “the directions issued in Sarbananda Sonowal” case (Sarbananda Sonowal vs Union Of India & Another) are required to be given effect to for the purpose of deporting the illegal immigrants…”. It added that “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”.

Justice Surya Kant said 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”.

The ruling said 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” and directed that the matter be placed before CJI Chandrachud for constituting a bench for the monitoring.

In his dissenting opinion, Justice Pardiwala held, “Section 6A of the Citizenship Act invalid with prospective effect”.

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 “discriminatory, arbitrary and illegal”. They also claim 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.

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.”

The Centre, on the other hand, relied on Article 11 of the Constitution which gives Parliament the power to “to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship”.

Other respondents, including 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.