Supreme Court Upholds Constitutionality of Section 6A of Citizenship Act: Case Summary

Case Title

IN RE : SECTION 6A OF THE CITIZENSHIP ACT 1955

Case Citation

2024 INSC 789 (17 October 2024)

Justices

Chief Justice Dr. Dhananjaya Y. Chandrachud, Justice Surya Kant, Justice M.M. Sundresh, Justice Jamshed B. Pardiwala, Justice Manoj Mishra

Question(s)

Whether Section 6A of the Citizenship Act, 1955 (“Citizenship Act”) violates Articles 11 (power to regulate citizenship), 14 (equality), 29 (protection of minority interests), 326 (right to vote), and 355 (duty of Union to protect states) of the Constitution.

Factual Background

Following the Bangladesh Liberation War in 1971, there was an influx of immigrants into Assam. Various groups protested against the influx of immigrants resulting in the signing of the Assam Accord on 15 August 1985 between the Union Government and the protesting groups. To provide legislative effect to the Assam Accord, Parliament enacted Section 6A in the Citizenship Act in 1985. 

Under Section 6A, immigrants of Indian origin who entered Assam before 1 January 1966 were recognised as Indian citizens.  Further, those who arrived between 1 January 1966 and 24 March 1971 were to be granted citizenship subject to the fulfilment of certain conditions including; (i) their detection as a ‘foreigner’ by the Foreigners Tribunal; (ii) their continuing to be an ordinary resident of Assam since entering Assam; and (iii) deletion of their names from the electoral rolls for ten years.  All those who satisfied these conditions were to be granted citizenship after ten years. 

Several writ petitions were filed under Article 32 challenging the constitutional validity of Section 6A, contending that: Parliament was not empowered to enact such a law under Articles 6, 7, and 11 of the Constitution; Section 6A violated the right to equality and the rights of minorities under Articles 14 and 29; and the duty of the Union to protect the State of Assam from external aggression under Article 355 of the Constitution. On 17 December 2014, a Division Bench of the Supreme Court (Two Judges) noted the important constitutional issues in the case and referred the matter to a Constitution Bench (Five Judges).

Decision of the Supreme Court

A Constitution Bench (five judges) of the Supreme Court by a majority of 4:1 upheld the constitutional validity of Section 6A. Justice Kant on behalf of himself and Justices Sundresh and Mishra authored the majority opinion and  Chief Justice Chandrachud authored a separate concurring opinion. Justice Pardiwala authored a dissenting judgment declaring Section 6A invalid.

In response to the contention that Section 6A was not being adequately enforced, the majority issued the following directions:

1. The directions issued in Sarbananda Sonowal v Union of India (2005 INSC 287) should be followed to deport the illegal migrants who entered after 1971.
2. The provisions of the Immigrants (Expulsion from Assam) Act, 1950 should be integrated with Section 6A for identifying illegal immigrants.
3. The current statutory framework and tribunals for identifying illegal immigrants in Assam are inadequate and must be enhanced to enforce the legislative intent of Section 6A in a time-bound manner.

Reasons for the Decision

Objections on the maintainability

The  Supreme Court held that courts have the power to review a foreign policy when it is in the form of a statute (¶¶46, 53 J. Kant, ¶¶6-8J. Pardiwala). Despite the Petitioners approaching the Court many years after Section 6A was enacted, the Court held that the doctrine of laches (delay) would not proscribe the Petitioner’s claim as it affects the larger public interest and the constitutionality of a provision (¶¶69-72, 75 J. Kant, ¶8 J. Pardiwala).

Section 6A conforms with Part II of the constitution

The majority held that Section 6A aligns with the fundamental purpose of Articles 6 and 7 of the Constitution, which seek to provide citizenship to individuals of Indian origin who suffered from political disturbances in neighbouring nations (¶132 J. Kant). In any case, the provisions in Part II of the Constitution (Arts 5-11) only prescribe who would be granted citizenship at the commencement of the Constitution. Citizenship after the commencement of the Constitution would be governed by Parliamentary law (¶139 J. Kant, ¶¶31,39,40 J. Chandrachud). Chief Justice Chandrachud held that Article 246 read with Entry 17 of List I in the Seventh Schedule confers Parliament the power to enact laws on citizenship (¶¶34-35 J. Chandrachud). 

Justice Pardiwala in his dissenting opinion held that Section 6A is not similar to Articles 6 and 7 because Section 6A(3) of the Citizenship Act puts the burden on the State to determine suspected immigrants as opposed to requiring individuals to register for citizenship (¶12). Justice Pardiwala also noted that unlike Article 6, Section 6A does not specify a cut-off date till when applications for citizenship could be made. The different onus of identifying foreigners and the lack of a cut-off date made Section 6A different from Article 6 (¶¶12, 212).

Section 6A does not violate Article 14

The Supreme Court  held that Section 6A does not violate Article 14 of the Constitution. Article 14 allows the legislature to classify individuals into different groups and treat them differently but such classifications must be based on an intelligible differentia and have a reasonable connection to the purpose sought to be achieved by classifying individuals(¶¶168-177 J.Kant, ¶¶59, 68c J. Chandrachud).

Assam, with a high influx of migrants and a small area, faces unique challenges in comparison with other states and therefore treating the situation in Assam is an intelligible classification (¶¶202-205 J.Kant). The federal structure allows the Union Government to have separate treaty arrangements with the states and Section 6A was inserted to bring the Assam Accord into effect (¶¶192, 188 J.Kant, ¶71 Chandrachud). This provides a sufficient reason for Parliament to have enacted Section 6A solely for the State of Assam (¶189 J.Kant, ¶15 J. Pardiwala). 

Section 6A is not arbitrary or unreasonable

The majority found that there were historical reasons for the  different cut-off dates and legitimate reasons for categorising migrants (¶¶232, 238-239, 241 J.Kant, ¶75 Chandrachud). As those who suffered political turmoil and entered Assam before 1 January 1966 were already included in the electoral rolls and 25 March 1971 marked the date of beginning of the Bangladesh Liberation war and the date of grant of Bangladeshi citizenship under the  Bangladesh Citizenship (Temporary Provisions) Order, 1972, there was a valid rationale for the cut off dates (¶¶228-231 J.Kant).

Therefore, Section 6A is not manifestly arbitrary because there was careful consideration behind the different cut-off dates. Further, the term “ordinary residence” in Section 6A is not too vague to be undefined (¶273 J. Kant).

In his dissent, Justice Pardiwala observed that there was no time limit by when all immigrants who entered Assam between 1966-71 had to be identified and could claim the benefits of Section 6A (¶¶129-130, 139 J. Pardiwala). Justice Pardiwala also observed that Section 6A(3) does not permit an immigrant to voluntarily seek citizenship. Rather, an immigrant has to wait, potentially indefinitely, for a reference to be made by the State to the Foreigners Tribunal (¶175 J. Pardiwala). Finally, Justice Pardiwala also observed that the requirement that the immigrant be an “ordinary resident in Assam” was vague and encouraged immigrants from neighbouring Indian states to immigrate to Assam to claim the benefit of Section 6A(3) (¶186 J. Pardiwala). 

Justice Pardiwala in his dissent observed that the goal of Section 6A(3) was the effective identification of immigrants between 1966 and 1971. He ruled that the above-mentioned flaws of Section 6A meant that the provision no longer achieves this goal and is hence unreasonable and unjustified (¶¶169, 189 J. Pardiwala). Justice Pardiwala ruled that the circumstances that existed at the time of the Assam Accord do not justify the continued operation of this arbitrary mechanism of establishing citizenship (¶190 J. Pardiwala). 

Justice Pardiwala in his dissenting opinion held that the Supreme Court has the power to mould relief to do complete justice to avoid the possibility of chaos and confusion that may be caused in the society. Therefore, he declared Section 6A as unconstitutional with prospective effect to ensure that immigrants who have already claimed the benefit of Section 6A are not deprived of citizenship (¶206 J. Pardiwala). 

In his concurring opinion, Chief Justice Chandrachud held that Section 6A contemplated rules and sufficient infrastructure to ensure that immigrants of Indian origin from Bangladesh could acquire citizenship (¶119 J. Chandrachud). Section 6A continues to serve this goal however, increased State capacity is needed to ensure the effective implementation of the provision. However, this does not render Section 6A unconstitutional (¶120 J.Chandrachud).

Section 6A does not violate the right of the indigenous people under Article 29(1)

The majority acknowledged that Assam has a distinct language, culture and script which are entitled to be preserved under Article 29(1) (¶288 J. Kant, ¶92 J. Chandrachud).  However, it found that Section 6A provides for timely detection and deportation of illegal immigrants. Thus the challenge should be against the non-implementation of the statute and not its constitutionality (¶304 J. Kant).

Chief Justice Chandrachud observed that the mere presence of different ethnic groups cannot violate the right under Article 29(1) and various constitutional and statutory provisions provide for the protection of their distinct culture (¶¶100-102 J. Chandrachud). 

Duty of a state under Article 355

The majority acknowledged that the Union Government holds a duty under Article 355 to protect its citizens from external aggression and internal disturbance (¶351 J.Kant, ¶87 J. Chandrachud). Although unabated migration could constitute external aggression, Section 6A does not promote unrestricted migration. It provides a regulated approach for the grant of citizenship to migrants who entered before 1971 and this cannot amount to external aggression (¶¶363-365 J.Kant).

In his concurrence, Chief Justice Chandrachud observed that while Article 355 does cast a duty on the Union Government, there is no corresponding right under Article 355 and thus a legislative enactment cannot be challenged on the ground that it breaches Article 355 (¶¶87,89 J. Chandrachud). Considering Article 355 as a separate ground for judicial review would defeat the object of the provision and the federal structure of the Constitution (¶¶89,90 J. Chandrachud).

Prepared by Benila B M and Osama Noor

Centre for Research and Planning, Supreme Court of India

Judgment Summaries are prepared to help promote a better understanding of the decisions of the Supreme Court of India. They do not form part of the Court’s decision or reasons and are not for use in legal proceedings. 

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