Constitutionality of Section 6A of the Citizenship Act, 1955: Recent Supreme Court Judgment

Share on:

The Supreme Court (SC) of India on October 17, 2024, delivered its verdict, In Re: Section 6A of the Citizenship Act 1955, on a batch of matters involving the constitutional validity of Section 6A of the Citizenship Act, 1955. Section 6A of the Citizenship Act, 1955, deals with ‘Special provisions as to citizenship of persons covered by the Assam Accord’. It confers citizenship to a specific class of migrants from Bangladesh to Assam. This provision was incorporated in 1985 to establish a framework and to delineate criteria for granting Indian citizenship to migrants who entered Assam before March 25, 1971. This provision illustrates that “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.” In Assam Sanmilita Mahasangha vs. Union of India, a two-judge Bench referred the issue of the constitutional validity of Section 6A to a Constitution Bench. The petitioners have assailed the constitutional validity of Section 6A of the Act on the ground that it violates Articles 6,7,14, 29, and 355 of the Constitution of India. Considering the same, the five-judge Constitution bench of the Supreme Court delivered the decision on October 17 upholding the constitutional validity of Section 6A of the Citizenship Act, 1955 with a 4:1 majority. Let us explore the key points of the judgment.

Recent Supreme Court Judgment

On October 17, 2024, the Constitution bench of the SC headed by the Chief Justice of India (CJI) DY Chandrachud, including others, Justice MM Sundresh, Justice Surya Kant, Justice Manoj Misra, and Justice JB Pardiwala delivered a long-awaited decision on an important issue, “Whether Section 6A of the Citizenship Act suffers from any constitutional infirmity.” This verdict includes three opinions, CJI’s concurring opinion, Justice Kant, Justice Misra, Justice Sundresh’s majority opinion, and Justice Pardiwala’s dissenting opinion, running into 407 pages. The SC bench upholds the constitutional validity of Section 6A of the Citizenship Act, 1955 with a 4:1 majority. Justice Pardiwala dissented from the majority opinion and said “Section 6A has acquired unconstitutionality with the efflux of time.” 

Opinion of CJI DY Chandrachud

The CJI said, “Assam Accord was a political solution to the issue of growing migration and Section 6A was a legislative solution…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.” He also said, “The mere presence of different ethnic groups in a State is not sufficient to infringe the right guaranteed by Article 29(1)...Article 29(1) confers the right to ‘conserve’ which means the right to take positive steps to protect culture and language. The petitioners ought to prove that the necessary effect of the law that promotes the presence of various ethnic groups in a State is that another ethnic group is unable to take steps to protect their culture or language. 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.”

He observed that the object of Section 6A is not limited to conferring citizenship but also extends to excluding a class of migrants from securing citizenship. Section 6A is one of the provisions in the larger citizenship project. The legal regimes on detecting foreigners and the citizenship law overlap at more than one point. Section 6A is one pea in the pod of a long-time redressal of issues. The CJI concluded, “Articles 6 and 7 of the Constitution prescribe a cut-off date for conferring citizenship for migrants from East and West Pakistan at the ‘commencement of the Constitution’, that is 26 January 1950. Section 6A of the Citizenship Act confers citizenship from 1 January 1966 for those who migrated before that date. Those who migrated between 1 January 1966 and 24 March 1971, are conferred citizenship upon the completion of ten years from the date of detection as a foreigner. Section 6A confers citizenship from a later date to those who are not covered by Articles 6 and 7 of the Constitution. Thus, Section 6A is not violative of Articles 6 and 7 of the Constitution.” The majority opinion by Justice Kant, Justice Sundresh, and Justice Misra also agreed with the point that Section 6A of the Citizenship Act does not violate Article 6 of the Indian Constitution. 

Majority Opinion (Justice Kant, Justice Sundresh, and Justice Misra)

The majority opinion was authored by Justice Surya Kant. In his judgment, Justice Kant broke down the issue into several constituent questions which are as follows:

“Prefatory issues

• Does the power of judicial review extend to analyzing the constitutionality of Section 6A?
• Whether the present petitions are barred by delay and laches?

Challenges regarding constitutionality

• Does Section 6A offend preambular values like fraternity?
• Is Section 6A ultra vires Part II of the Constitution?
• Does Section 6A create an unreasonable classification which violates Article 14?
• Does Section 6A suffer from manifest arbitrariness?
• Does Section 6A violate the rights provided to ‘indigenous’ communities under Article 29?
• Is Section 6A ultra vires Article 21 of the Constitution?
• Does Section 6A violate the political rights of Indian citizens in Assam under Article 326?
• Does the operation of Section 6A cause ‘external aggression’ and ‘internal disturbance’, culminating in the invocation of Article 355?
• Does the Citizenship Act conflict with provisions of the Immigrants (Expulsion from Assam Act), 1950? If so, how can the two legislations be harmoniously interpreted?
• Does Section 6A violate international laws?”

He said, “we…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.” Further, he held, “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, i.e., to restrict illegal immigration post-1971 has also not been given proper effect.” Moreover, he issued certain directions, some of them include:

• “In view of the conclusion drawn in paragraph 387, it is held that Section 6A of the Citizenship Act, 1955 falls within the bounds of the Constitution and is a valid piece of legislation;
• As a necessary corollary thereto, (i) immigrants who entered the State of Assam prior to 1966 are deemed citizens; (ii) 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 (iii) 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. Accordingly, Section 6A has become redundant qua those immigrants who have entered the State of Assam on or after 25.03.1971;”

Lastly, Justice Kant 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.”

Dissenting Opinion

Justice Pardiwala gave the dissenting opinion, “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.” He added, “The prescribed mechanism also shifts the burden of detection of a foreigner solely on the State, thus, counter-serving the very purpose for which the provision was enacted, that is, the expedient detection of immigrants belonging to the 1966-71 stream, their deletion from the electoral rolls, and conferment of de-jure citizenship only upon the expiry of ten-years.” While considering the question “Whether there is a temporal limit on the applicability of Section 6A(3)?” Justice Pardiwala said, “Neither Section 6A nor the rules made thereunder prescribe any outer time limit for the completion of detection of all such persons who belong to the 1966-71 stream and are eligible to avail the benefits of Section 6A(3)...The absence of any prescribed time-limit for detection of foreigners of the 1966-71 stream 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.” He concluded the judgment by stating that Section 6A of the Citizenship Act deserves to be declared invalid with prospective effect. Below are the reasons given by him in brief, 

• “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.”

To conclude, the top court upholds the constitutional validity of Section 6A of the Citizenship Act, 1955.