Section 6A of Citizenship Act: Constitution Bench, in majority judgment, upholds validity
A five-judge Constitution Bench, headed by Chief Justice D.Y. Chandrachud, said the Assam Accord was a political solution to the problem of illegal migration
by Krishnadas Rajagopal · The HinduThe Constitution Bench of the Supreme Court, in a 4:1 majority judgment, on Thursday (October 17, 2024) upheld the validity of Section 6A of the Citizenship Act. However, in his dissent, Justice J.B. Pardiwala held that Section 6A is unconstitutional with prospective effect. The Act is related to the grant of Indian citizenship to illegal immigrants in Assam.
A five-judge Constitution Bench, headed by Chief Justice D.Y. Chandrachud, said the Assam Accord was a political solution to the problem of illegal migration.
Section 6A is a special provision inserted into the 1955 Act in furtherance of a Memorandum of Settlement called the ‘Assam Accord’ signed on August 15, 1985 by then Rajiv Gandhi government with the leaders of the Assam Movement to preserve and protect the Assamese culture, heritage, linguistic and social identity. The Accord came at the end of a six-year-long agitation by the All Assam Students Union (AASU) to identify and deport illegal immigrants, mostly from neighbouring Bangladesh, from the State.
CJI Chandrachud said, “Section 6A balances humanitarian need of migration with the economic effects of migration. It does not violate Section 6 of the Citizenship Act and confers citizenship only on a later date, between January 26, 1950 till January 1, 1961. The cut-off date of 1971 is reasonable. Section 6A is neither under inclusive nor over inclusive. The presence of different ethnic groups in a State does not violate cultural rights. Detection of foreigners is an elaborate process.”
Section 6A(3) is a long-time provision to deal with influx of migrants. J. Surya Kant, in the lead opinion, said, “6A is in the spirit of fraternity. People cannot choose their neighbours. That is the not idea of fraternity. The idea is to live and let live. People of different backgrounds should live in the spirit of inclusiveness and togetherness.” J. Kant said the cut-off dates in 6A are not manifestly arbitrary. He said, “The term ‘ordinary resident’ is not vague. The term is seen in many other laws, including the Representation of People Act.”
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Justice Kant said the attack on Article 6A is misplaced and that the large influx is owing to lack of implementation of laws, adding the influx of migrants has not affected the right of the Assamese to vote.
“The restriction on citizenship for persons who have entered Indian territory post the 1971 cut-off date in Section 6A is not properly implemented,” Justice Kant observed.
In his dissent, Justice J. Pardiwala, said Section 6A may have been valid at the time of its inception, but has become unconstitutional temporally.
Under Section 6A, foreigners who had entered Assam before January 1, 1966, and been “ordinarily resident” in the State, would have all the rights and obligations of Indian citizens. Those who had entered the State between January 1, 1966 and March 25, 1971 would have the same rights and obligations except that they would not be able to vote for 10 years.
Section 6A was a mixture of State taking a humanitarian approach to immigration from Bangladesh and quelling the apprehensions of Assamese leaders that largescale influx would affect the Assamese economy and culture. The 1966-1971 bracket and restriction in voting for 10 years were included to appease Assamese leaders that immigration influx would not affect electoral politics. Section 6A was a statutory avtar of the Assam Accord
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“On suspicion that a person is a foreigner, the onus is on the person who came between 1966-71 to prove he is a citizen,” J. Pardiwala said.
Justice Pardiwala further said, “The underlying object of creating two distinct categories of immigrants under Section 6A could have been achieved only if the exercise of detection of immigrants of the 1966-71 stream and their deletion from the electoral roll was conducted in an enmasse and time bound manner. This was not done as intended, and there is no relevance now in the classification between pre-1966 and 1966-71 stream of immigrants. To allow 6A to continue for all time to come would amount to taking redactive view of historical circumstance which brought the provision into existence.”
Justice Pardiwala concluded that Section 6A has become manifestly arbitrary and thus unconstitutional with the efflux of time. He said, “Section 6A fails to bring temporal limit to its applicability. It shifts the sole burden of proving a person an illegal immigrant or foreigner on the State, thus counter-serving the very purpose for which the provision was enacted. The purpose of 6A was not achieved, that is, expedient detection of those who entered in the 1966-71 period, their deletion from the electoral rolls and conferment of de jure citizenship only on the expiry of 10 years.”
“Even J. Kant, who wrote the majority opinion, agrees that hordes of immigrants have illegally crossed over to Assam and residing there. But still J. Kant says such illegal immigration cannot be blamed on 6A,” Justice Pardiwala said. “But the fact is that the absence of temporal limits in 6A has led to influx. Section 6A does not align with Section 6 of the Citizenship Act,” Justice Pardiwala said.
“Under Section 6, a person who migrated from Pakistan had to apply for citizenship. The onus was on the immigrant. There was also a cut-off date was 1952,” Justice Pardiwala said.
Published - October 17, 2024 12:00 pm IST