The Supreme Court on Thursday upheld the constitutional validity of Section 6A of the Citizenship Act 1955, which recognised the Assam Accord, by 4:1 majority.
The five-Judge Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Surya Kant, MM Sundresh, JB Pardiwala, and Manoj Misra delivered the judgment.
Justice Pardiwala gave a dissenting judgment to hold Section 6A as unconstitutional with prospective effect. CJI DY Chandrachud in his judgment said that the Assam Accord was a political solution to the problem of illegal migration and Section 6A was the legislative solution.
The majority held that the Parliament had the legislative competence to enact the provision.
It was held by the majority that Section 6A was enacted to balance the humanitarian concerns with the need to protect the local population.
The majority also held that the singling out of Assam from other states that shared a larger border with Bangladesh was rational as the percentage of immigrants among the local population in Assam was higher there than in other border states. The impact of 40 lakh migrants in Assam is greater than the 57 lakh migrants in West Bengal because the land area in Assam is much less compared to West Bengal.
The majority also held that the cut-off date of March 25,1971 was rational, as it was the date when the Bangladesh liberation war ended. The objective of the provision must be seen in the backdrop of the Bangladesh war. The majority was of the view that Section 6A was ‘neither over-inclusive nor under-inclusive.’
CJI Chandrachud also observed in his judgment that the mere presence of different ethnic groups in a state does not mean that the fundamental right to protect linguistic and cultural heritage as per Article 29(1) of the Constitution has been infringed. The petitioners have to prove that one ethnic group is not able to protect their own language and culture just because of the presence of another ethnic group.
Justice Surya Kant in his judgment(for himself, Justices Sundresh and Manoj Misra) rejected the petitioners’ argument that Section 6A violated the principle of fraternity embodied in the Preamble to the Constitution. Justice Kant observed that fraternity cannot be understood in a narrow manner to hold that one should be able to choose one’s neighbours. His judgment rejected the argument that the provision suffered from ‘manifest arbitrariness’ because of the cut-off date specified.
Regarding the argument of petitioners based on Article 29, Justice Kant’s judgment held that they have not been able to show any impact on Assamese culture and language due to immigration. In fact, Section 6A mandates that the migrants who entered after the cut-off date should be detained and deported, the judgment noted.
On the same count, the judgment rejected the argument based on infringement of Article 21. The petitioners have not been able to show a constitutionally valid impact on their culture due to the presence of any other group.
Justice Kant read conclusions regarding Section 6A which said that immigrants who entered Assam before the date of January 1, 1966, are deemed to be Indian citizens; immigrants who entered Assam between the dates January 1, 1966, and March 25, 1971, are entitled to seek Indian citizenship provided they fulfill the eligibility criteria and immigrants who entered Assam on or after March 25, 1971, are declared to be illegal immigrants and are liable to be detected, detained and deported.
He also said that the directions issued in the Sarabandana Sonowal judgment to detect and deport illegal migrants are to be implemented. The statutory machinery and Tribunals tasked with the identification of illegal migrants are inadequate and not proportionate to the requirement of giving time-bound effect to the legislative objectives of Section 6A, Foreigners Act, Foreigners Tribunals Order, Passport Act etc, Justice Kant noted.
Justice Kant said that the implementation of these provisions cannot be left to the mere wish of the executive authorities and hence constant monitoring by the Supreme Court was necessary. For this purpose, the matters were directed to be placed before a bench to monitor the implementation of the directions.
During the hearing, the Court had directed the Ministry of Home Affairs to furnish data regarding the inflow of illegal migrants to Assam and North Eastern states after March 25, 1971 (post the declaration of Bangladesh independence) and to provide data-based disclosures under various heads including the grant of citizenship to immigrants in different time periods, workings of the Foreigners Tribunals established etc.
Justice Pardiwala opined that the cut-off date of 01.01.1966 was set to assuage the apprehensions of the protesters. The legislature could have simply conferred deemed citizenship to anyone who entered before 1971. But the very fact that a statutory category was created from 1966 to 1971 subject to a stricter condition (no voting rights for 10 years) would mean that conferment of citizenship was not the only objective and it was in fact to pacify the Assam people that such inclusion would not impact the then upcoming elections in the state.
Stating that Section 6A has acquired unconstitutionality with the afflux of time, he therefore declared Section 6A as unconstitutional with prospective effect. He concluded that that Section 6A(3) is unconstitutional giving reason that 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; Section 6A(3) does not prescribe an outer time limit for the detection of an immigrant to Assam as a foreigner.
The Assam Sanmilita Mahasangha, a civil society group based in Guwahati, contested Section 6A in 2012, alleging its discriminatory, arbitrary, and unlawful nature. They argued that the section’s provision of distinct cutoff dates for regularising illegal migrants in Assam versus the rest of India was unfair and requested the Court to intervene by instructing the relevant authority to update the National Register of Citizens (NRC) for Assam based on the information from the 1951 NRC rather than relying on electoral rolls before March 24, 1971.
Subsequently, other organisations from Assam also filed petitions challenging Section 6A.
When the case was heard in 2014, a two-judge Bench headed by Justice Rohinton Nariman referred the matter to a Constitution Bench, which was finally formed on April 19, 2017.
This panel consisted of Justices Madan B Lokur, RK Agarawal, Prafulla Chandra Pant, DY Chandrachud, and Ashok Bhushan.
Since all the judges except for Justice Chandrachud retired, a new bench comprising Chief Justice DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha posted pleas challenging the constitutional validity of Section 6A.
The bench was reconstituted due to the retirement of Justices MR Shah and Krishna Murari with the final composition including CJI DY Chandrachud along with Justices AS Bopanna, MM Sundresh, JB Pardiwala, and Manoj Misra. The case hearings began on December 5 and finished on December 12, 2023. The judgment has been reserved by the order of the Court.
