Supreme Court Upholds Constitutional Validity of Section 6A of the Citizenship Act, 1955, By 4:1 Majority

Today (October 17, 2024), the Constitution bench of the Supreme Court (SC) of India upheld the constitutional validity of Section 6A of the Citizenship Act, 1955, which deals with ‘Special provisions as to citizenship of persons covered by the Assam Accord,’ by 4:1 majority. The Constitution bench constituting Chief Justice of India (CJI) DY Chandrachud, Justice MM Sundresh, Justice Surya Kant, Justice Manoj Misra, and Justice JB Pardiwala delivered the judgment today whereas CJI, Justice Sundresh, Justice Kant, Justice Misra gave majority view and Justice Pardiwala gave dissenting view. According to Section 6A of the Act, “Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the 1st day of January 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day of January 1966.”

CJI in his judgment said, “Assam Accord was a political solution to the issue of growing migration and Section 6A was a legislative solution.” He added, “Section 6A is one more statutory intervention in the long list of legislation that balances the humanitarian needs of migrants of Indian Origin and the impact of such migration on economic and cultural needs of Indian States.” The majority also ruled that the cut-off date of March 25, 1971, was rational. CJI in his judgment also said, “...mere presence of different ethnic groups in a State is not sufficient to infringe the right guaranteed by Article 29(1)...The petitioner also ought to prove that the inability to take steps to conserve culture or language is attributable to the mere presence of different groups.” In a judgment authored by Justice Kant, including his, Justice Sundresh, and Justice Misra’s view, illustrated, “we thus hold that 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.” He concluded, 

• “Immigrants who entered the State of Assam prior to 1966 are deemed citizens; 
• Immigrants who entered between the cut-off dates of 01.01.1966 and 25.03.1971 can seek citizenship subject to the eligibility conditions prescribed in Section 6A (3); and 
• 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.”

On the other hand, Justice Pardiwala in his dissenting opinion said, “Section 6A has acquired unconstitutionality with the efflux of time. The efflux of time has brought to light the element of manifest arbitrariness in the scheme of Section 6A(3) which fails to provide a temporal limit to its applicability.” The reasons given by him were:

• “The low detection of immigrants who entered Assam between 1966-71 is attributable to the manifest arbitrariness of the mechanism prescribed by Section 6A(3);
• Section 6A(3) requires the migrant to be detected as a foreigner, to register as a citizen. However, the mechanism does not provide for self-declaration or voluntary detection as a foreigner. The process of detection can only be set in motion by the State. This is a clear departure from the scheme of the Citizenship Act and Articles 6 and 7 of the Constitution which allows acquiring citizenship through registration; and
• Section 6A(3) does not prescribe an outer time limit for the detection of an immigrant to Assam as a foreigner. This militates against the purpose of the provision and is arbitrary for the following reasons:
  • The name of a person who is detected as a foreigner today would be deleted from the electoral rolls for ten years from the date of detection. This consequence is not in consonance with the object of the provision which was early detection, deportation, and conferment of citizenship;
  • Placing the onus on the State to detect a foreigner coupled with the absence of temporal limit allows immigrants to continue to be on the electoral rolls and enjoy being de-facto citizens; and
  • Section 6A(3) incentivizes undocumented immigrants from Bangladesh to stay in Assam indefinitely until they are detected as Foreigners since they will be able to acquire citizenship only if they are ‘ordinarily resident’ in Assam.” 

Earlier in December 2023, the Supreme Court heard for four days the batch of petitions challenging the constitutional validity of Section 6A of the Citizenship Act, 1955, and then reserved its verdict which was delivered today.