A five-judge bench of the Supreme Court headed by the then Chief Justice of India (CJI), D.Y. Chandrachud, and including Justices Surya Kant, M.M. Sundresh, J.B. Pardiwala and Manoj Misra, upheld the constitutionality of Section 6A of the Citizenship Act, 1955 by a 4 : 1 majority on October 17, 2024. This section provides citizenship to immigrants who had arrived in Assam before March 25, 1971.
Section 6A is a special provision added to the Citizenship Act, 1955 to implement the ‘Assam Accord’ signed on August 15, 1985, by the Rajiv Gandhi Government and Assam Movement representatives after the 1971 Indo-Pakistan War.
Section 6A of the Citizenship Act, 1955 has been structured as follows:
- Immigrants of ‘Indian origin’ who entered Assam before January 1, 1966, from specified territory are deemed citizens as per Section 6A(2).
- Those immigrants who entered Assam between January 1, 1966 and March 25, 1971, once detected as foreigners under Section 6A(3) and registered for citizenship, are deemed citizens of India as per Section 6A(5). However, as per Section 6A(4), they do not have voting privileges for ten years following their detection as foreigners.
- Any person entering Assam after March 25, 1971 is considered an illegal migrant and cannot be granted citizenship.
Background
On November 20, 2019, Home Minister Amit Shah had announced in Parliament that the Indian government would establish a nationwide National Register of Citizens (NRC), previously introduced in Assam in 1951, to list genuine citizens.
On December 12, 2019, the then President of India, Ramnath Kovind approved the Citizenship Amendment Act (CAA), 2019, which amended the Indian Citizenship Act, 1955. This was to facilitate citizenship for individuals from Afghanistan, Pakistan, and Bangladesh, who entered into India on or before December 31, 2014, provided they belong to community of Hindu, Sikh, Jain, Parsi, Buddhist or Christian. Critics argued that the NRC and the CAA were linked and that the BJP-led government aimed to exclude Muslims from being recognised as Indian citizens.
Petitioners’ Objections and Claims
Petitioners argued that Section 6A unfairly targeted Assam and has led to mass immigration. They claimed that it changed the state’s demographic makeup by granting immediate citizenship to immigrants asserting that they had arrived before the 1971 cut-off date.
Petitioners further argued that Section 6A violated Articles 6 and 7 of the Constitution. Article 6 states that a person who has entered India from Pakistan before July 19, 1948 is deemed a citizen, while those entering after that date must apply for citizenship, which would be processed if they have resided in India for at least six months prior to their application. Article 7 prohibits re-migration to India for individuals who left for Pakistan after March 1, 1947.
Petitioners argued that Section 6A allowed re-migration for those from East Pakistan, thereby altering Articles 6 and 7 of Indian Constitution.
The petitioners argued that Section 6A violates Article 14 for three reasons: first, it is overly narrow, granting citizenship only to migrants in Assam; second, there is no valid reason to single out Assam while ignoring other states bordering Bangladesh, which are similar; and third, it establishes a different cut-off date for migrants entering Assam compared to those entering other states.
The petitioners argued that Section 6A violates Article 355 claiming that it encourages migration into Assam instead of preventing it, violating constitutional protections.
They further argued that Article 29 protects the rights of endogamous communities in Assam, claiming that unchecked migration from Bangladesh has caused demographic changes, threatening Assamese culture and its cultural identity. Furthermore, Section 6A(3) of the Citizenship Act, 1955 became unconstitutional due to its failure to address illegal immigration, lack of temporal limit and exploitation by post-1971 immigrants, and undermining its original intent.
The petitioners highlighted that Section 6A(2) lacks a registration process, unlike other provisions creating ambiguity and raising concerns about the arbitrary conferment of citizenship.
Respondents’ Legal Reasoning
The respondents argued that Parliament had the authority to enact Section 6A under Article 11 of the Constitution, emphasising its power to legislate on citizenship matters. They refuted claims that Articles 6 and 7 apply to East Pakistan, asserting they operate in different contexts. Justifying differential treatment for Assam, they cited its historical context and the Assam Accord. They argued that Section 6A is not temporally unreasonable but it reinforces multiculturalism and aligns with Article 21, protecting both Assamese and foreigner rights.
Supreme Court Judgment
A Constitution Bench led by D.Y. Chandrachud heard arguments in the case for four days and reserved judgment on December 12, 2023.
The court determined that the statutory machinery and tribunals responsible for identifying and detecting illegal immigrants or foreigners in Assam were insufficient and disproportionate to the need for implementing the legislative objectives of Section 6A, along 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, within a time-bound manner.
Ten months later, on October 17, 2024, the bench delivered its judgment. The 407-page verdict included three opinions: a majority opinion by Justice Surya Kant, joined by Justices M.M. Sundresh and Manoj Misra, a concurring opinion by the CJI, and a dissenting opinion by Justice J.B. Pardiwala.
The court affirmed that Parliament has the authority to enact laws on citizenship, as granted by Article 11 of the Constitution, which allows laws even if they conflict with other provisions. Additionally, the court referenced Entry 17 of List I in the Seventh Schedule which states, Citizenship naturalisation and aliens, to reinforce this authority. It noted that the amendment of Article 11 during drafting reflected the framers intent to grant Parliament broad discretion over citizenship laws.
The court upheld Section 6A and stated that it does not violate Article 14. The petitioners’ argument that Section 6A discriminated against Assam’s indigenous population was rejected, with the court citing the Assam Accord as a valid basis for differential treatment. It acknowledged the Accord as a political solution to Assam’s immigration issues. The court affirmed that reasonable classifications are allowed under Article 14, and the chosen cut-off dates, tied to historical events, were not arbitrary. The dates, reflecting key moments like the 1966 immigration shift and the 1971 Bangladesh Liberation War, were deemed reasonable and based on thoughtful discussions.
The court disagreed on petitioners’ claim of section 6A as violative of Article 355, and stated that Section 6A was limited in scope and provided a practical solution to Assam’s immigration issues, balancing India’s commitments, international relations, and administrative realities. The court saw Section 6A as part of a political solution to Assam’s conflict, aiming to restore peace and order, rather than promoting further disturbances.
Chief Justice DY Chandrachud’s Concurring Opinion He opined that Section 6A does not violate Article 29(1), which protects a group's right to safeguard its culture. He explained that the petitioners failed to demonstrate how granting citizenship to immigrants under Section 6A would harm Assamese culture. While they assumed an increase in the Bengali population would threaten Assamese culture, they did not prove a direct link. The CJI emphasised that Assam has other laws protecting its culture and language, concluding that Section 6A does not hinder the preservation of Assamese culture.
He further stated that Section 6A(3) is not unconstitutional due to temporal unreasonableness, a doctrine suggesting laws may become unconstitutional over time. He acknowledged concerns over the dilution of voting rights in Assam, but emphasised that Section 6A(3) aims to address migration from Bangladesh and is not solely about voter rights. He stated that the long process of identifying and granting citizenship in Assam justifies the provision’s continued relevance, concluding that temporal unreasonableness should not apply in this case.
The CJI further opined that Section 6A(2) is not unconstitutional despite not specifying a registration procedure. He explained that the Citizenship Rules, amended in 1987, implemented Section 6A(3) and provided that any question of a person’s foreign status must be referred to a Foreigners Tribunal. While he did not directly address the procedural concerns raised by the petitioners, he refuted the claim that Section 6A(2) lacked process. The majority judgment also emphasised that various complementary rules should be interpreted as part of a unified framework for implementing Section 6A.
Justice Pardiwala’s dissent He criticised Section 6A(3) for its failure to effectively identify and address migrants from 1966-71, particularly regarding the ten-year voting ban. He argued that the provision, intended to address electoral concerns, became ineffective due to delayed identification of migrants. Over time, the weak implementation worsened the issue, attracting more illegal migrants. He recommended striking down Section 6A prospectively, ensuring that citizenship granted before the judgment remains intact, however, unrecognised individuals would be treated as illegal.
Conclusion
The Section 6A of the Citizenship Act, 1955, has been a critical provision in addressing the specific challenges faced by Assam in terms of migration and citizenship. However, its implementation has raised certain legal and constitutional issues.
Therefore, the Supreme Court role in interpreting Section 6A has been crucial in striking a balance between the rights of migrants and the need to protect national security and demographic integrity.
As the process of updating NRC continues and debates around migration and citizenship evolve, the role of Supreme Court will remain central in ensuring that justice is served.
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