Section 6A of the Citizenship Act | Judgement Summary

Section 6A does not violate constitutional provisions, Parliament is competent to enact the law

Petitioners had argued that Section 6A violated Articles 6 and 7 of the Constitution. According to Article 6, any person is deemed a citizen if they entered India from Pakistan before 19 July 1948. If they enter on or after that date, they have to make a citizenship application. Their application will be processed and they will be registered as citizens only if they were “resident in the territory of India for at least six months immediately preceding the date of his application.” 

Article 7 prohibits re-migration to India if a person leaves for Pakistan after March 1947. Petitioners contended that Section 6A permitted the re-migration of those who lived in East Pakistan and altered Articles 6 and 7 of the Constitution. The Union relied on Article 11 of the Constitution to argue that it had the power to make such a law. Article 11 states Parliament can regulate the right to citizenship by law. Further, Section 6A, the Union asserted, operates in a different time frame unlike Articles 6 and 7. 

Upholding the provision, CJI Chandrachud wrote that the application for citizenship under Article 6 had to be made six months before the Constitution came into force. Thus, persons who came from Pakistan after 19 July 1948 had to apply before 26 July 1949. However, some migrants entered India after 26 July 1949 but were unable to fulfil the six-month criteria. Therefore, he said, Section 6A “confers citizenship on a later date to those who are not covered” by Article 6. 

Further, Article 7 permitted citizenship to re-migrants applying for citizenship as per the rules under Article 6 i.e. through registration with residency of six months before application. Therefore, “Section 6A could be interpreted to alter or amend Articles 6 and 7 only if it conferred citizenship retrospectively, as at the commencement of the Constitution which is not the case.” 

Justice Kant observed that Section 6A aligns with the purpose of Articles 6 and 7 “to extend citizenship rights to those affected by the country’s partition”. Article 6 he held, does not “prohibit the granting of citizenship after the cut-off date” of 19 July 1948. Clarifying Parliament’s powers to make laws on citizenship, he pointed out that it can be traced to Entry 17 of the Union List. Further, “Article 11 confers overriding powers upon the Parliament to make laws even when they are against other provisions”. 

Justice Pardiwala disagreed with Justice Kant that Section 6A is similar in philosophy and purpose to Article 6. He pointed out that Article 6 prescribes a registration system where a person can register individually. Further, there is an end date for the application of such registration. Section 6A(3) has neither of these procedures. He, however, agreed with Justice Kant that Parliament has the power to draft laws relating to citizenship. 

Section 6A does not violate Article 14 of the Constitution 

Petitioners had argued that Section 6A was underinclusive as it only granted citizenship to migrants who came to Assam and not other states sharing a border with Bangladesh. They said that this made the provision manifestly arbitrary and had to be struck down for violating Article 14. 

CJI Chandrachud held that the provision was valid under Article 14. He observed that for an exclusion of a group to be valid under Article 14, it must be based on reasonable grounds. Further, the object of the provision making such exclusion should be related to it. He noted that Section 6A was enacted with the objective to reduce the influx of migrants to India and to deal with those who had already migrated. The Assam Accord, he said, “was a political solution to the issue of growing migration and Section 6A was a legislative solution”. 

He observed that previous legislations dealing with the undocumented migration in Assam did not extend to other states because Assam “presented the Union with a unique problem in terms of magnitude and impact”. He added that though states like West Bengal, Meghalaya, Tripura, and Mizoram share a greater border with Bangladesh, they have fewer immigrants in number. He noted that Assam had 40 lakh immigrants within “Assam’s lesser population and land area”. Thus, singling out Assam was based on a rational consideration. 

Similarly, the cut-off date of 25 March 1971 was also rational. The migrants who came to Assam before that date were “migrants of partition” as established earlier while testing the provision with Article 6. Anyone who came after would be an illegal migrant because they were “migrants of war,” in the aftermath of the Operation Search Light. Therefore, there was a “rational nexus with the objects of reducing migration and conferring citizenship to migrants of Indian origin”. The provision would be underinclusive only if similarly situated migrants were not included within its ambit. 

Justice Surya Kant also echoed the view that Section 6A was a political compromise between several protesting groups in Assam and the Union. Therefore, Section 6A “extended citizenship solely to immigrants in Assam because the Union of India had exclusively engaged in this accord with Assam.” Since the object was to grant citizenship to only migrants who entered Assam and no other state the “classification between the State of Assam and other States had a direct nexus with the object of the statute”. 

He then tested the provision based on “manifest arbitrariness.” To determine if a provision or statute is “manifestly arbitrary,” it must first undergo a test of its underlying logic—whether the rationale behind it is sound or reasonable. If no rational basis can be found, it automatically fails this test. However, even if a clear rationale exists, the provision must also align with constitutional morality and serve the public interest. If it falls short on either front, it can still be deemed unconstitutional. 

Justice Kant held that the cut-off date of 1 January 1966 for deeming citizenship under Section 6A(2) was based on “proper application of mind”. He explained that “Section 6A was predicated on humanitarian grounds”. Further, “it was also administratively convenient to select this cut-off date because of the impracticality of requesting documents from individuals who migrated much earlier, such as in 1951”. He also ascribed the cut-off date of 25 March 1971 to Operation Search Light. Lastly, he held that Section 6A “does not operate perpetually” because it does not apply to migrants who came after 25 March 1971. Therefore, it “cannot be said to be tainted with the element of manifest arbitrariness”. 

Holding that the procedure prescribed under Section 6A is also not manifestly arbitrary, Justice Kant stated that the petitioners were looking at the provision in isolation but should have been interpreted in the backdrop of other legislations such as the Immigrants (Expulsion from Assam) Act, 1950, Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, the Passport (Entry into India) Act, 1920 and the Passport Act, 1967. However, he pointed out that “it is crucial to distinguish between the prescribed process under the provision and its actual implementation”. 

Justice Kant however, chastised the Union for not undertaking the exercise of adequately identifying the migrants who came before 1971 and deporting those who came after in a timely manner. This, he said, has resulted in “a scenario where the latter category of immigrants have been residing in Assam like ordinary citizens”. He held that “this failure is not attributable to Section 6A but rather to its inadequate implementation”. 

For the adequate implementation of the provision, Justice Kant listed the following conditions: 

1. Section 6A is redundant for those who entered Assam after 25 March 1971. 
2. The Immigrants (Expulsion from Assam) Act, 1950 shall be harmoniously read with Section 6A for identifying and deporting immigrants.
3. The implementation of Section 6A “cannot be left to the mere wish and discretion of the authorities” warranting constant monitoring by the Court.
4. The Chief Justice of India will have to constitute a bench to oversee the time-bound implementation of Section 6A.

Justice Pardiwala agreed with Justice Kant’s view that it was permissible for Parliament to enact Section 6A to deal with the “extraordinary conditions” prevailing in Assam. However, he disagreed on the aspect of manifest arbitrariness. He observed that a provision which passes the two-pronged test of reasonable classification can still suffer from the vice of unconstitutionality over time. What was once constitutional at a specific period, may not be constitutional anymore due to “temporal unreasonableness”.

Justice Pardiwala noted that the “test of temporal unreasonableness” requires the two prongs for the test of classification to “remain relevant with the passage of time,” which has not happened in the case of Section 6A because the provision did not have any “temporal limit” or end date. 

This, Justice Pardiwala said, created two “serious problems.” First, there was no prescribed time limit for the application of the provision. Second, the onus to identify the migrants was on the state. Calling the mechanism under Section 6A as “absurd and faulty” he explained that a person who is “not eligible under Section 6A can put-up a false claim that he or she is covered under Section 6A”. There is no mechanism for a migrant to voluntarily seek citizenship and only have to wait indefinitely.

 He added that presently, the policy is to exclude illegal immigrants from citizenship but the “temporally unlimited mechanism” of Section 6A goes against this policy. For this reason, he stated that Section 6A became constitutional with the “efflux of time” and must be struck down. He clarified that overruling would have a prospective effect to not affect the status of those who had already availed citizenship. 

Responding to Justice Pardiwala’s dissent, CJI Chandrachud observed that the “process of detection and conferring citizenship in Assam is a long-drawn out process” that could span decades. Striking it down due to a lapse of time would be ignoring the “context and object” of the provision. Further, he further held that one need not have to register for citizenship as it is already “deemed” under Section 6A(2). This is similar to Sections 3 and 4 of the Citizenship Act which grant citizenship by birth and descent respectively. 

Section 6A does not increase the threat of external aggression

Petitioners had claimed that the influx of immigrants had led to internal disturbance and made Assam vulnerable to external aggression. They argued that the Union had the “duty” to protect states under Article 355. 

CJI Chandrachud observed that “such an interpretation would lead to disastrous consequences.” He pointed out that Article 355 is found in Part 18 of the Constitution which deals with “emergency powers” which can only be invoked by the Union. “Reading the duty in Article 355 into a right would effectively place the emergency powers with citizens and courts,” resulting in catastrophic consequences for the federal structure of the Constitution. 

Justice Kant observed that Section 6A “addresses a controlled and regulated form of immigration” which does not amount to external aggression. Further, Section 6A was enacted to calm the political tensions in Assam caused due to various agitations. This made it “difficult to accede” that Section 6A caused internal disturbances. 

Section 6A does not violate cultural rights under Article 29

Petitioners had claimed that Assam has a distinct culture and script and that they had the right to protect and conserve this culture under Article 29. Section 6A which increased foreign immigration in the state, violated this right. 

CJI Chandrachud stated that Article 29 protects the interest of minorities and is applied to every section of society which has a distinct language, script or culture. Assam, having its own distinct culture, also has this right, but it had to be interpreted “in light of the multi-cultural and plural nation that India is”. He held that the mere presence of an ethnic group “is not sufficient to infringe the right guaranteed by Article 29”. The right to conserve culture means to take “positive steps” to protect it and the petitioners had to show their inability to take such steps. 

He also pointed out that there are several constitutional and legislative provisions which protect Assamese culture. This also includes Article 345 which allows state legislatures to adopt any one or more languages as the language to be used for official purposes in the State. The legislature enacted the Assam Official Language Act, 1960 in that process. 

Justice Kant observed that a mere change in demographics as a violation of Article 29 “would have far reaching consequences” and would open the floodgates for similar challenges. “The cascading ramifications of accepting the Petitioners’ stand on federalism and national harmony would be significant, deleterious and not improbable,” he said and held that the petitioners do not have a standing to make such a claim. Further, the Court “cannot embark on a complex or microscopic fact-finding exercise” to study if the demographics and culture had indeed been affected. Therefore, he held the claim to be unsubstantiated. He also rejected the petitioners’ contentions that their cultural rights as original inhabitants of the state were violated under Article 27 of the International Convention of Civil and Political Rights. He declared that domestic law always trumps international law. 

Section 6A does not violate the right to vote

Justice Kant then pointed out that the right to vote under Article 326 cannot be restricted as it is available to all citizens irrespective of when they acquired their citizenship. This was pertaining to arguments by petitioners that the political rights of native Assamese citizens had been reduced due to the inclusion of Bangladeshi immigrants in the electoral rolls. He observed that “allowing such a plea would militate against the spirit of Article 326”. Moreover, the petitioners have not shown a violation of their rights under Article 326. 

Section 6A does not violate the right to liberty

Petitioners had claimed that Section 6A violated their right to self-governance under Article 21 as the indigenous people of Assam. The mass migration, they said, had depleted the natural resources in the state. 

Dismissing this argument, Justice Kant held that the petitioners had to “establish both a deleterious effect of Section 6A on their indigenous communities as well as trace the cause of” it to Section 6A. He observed that the petitioners had failed to show any such actionable impact. Further, they were unable to demonstrate that their “right to govern themselves democratically” was affected. Further, he pointed out that natural resources and the right to sustainable development can also be enforced when a population grows. “A nation can accommodate immigrants and refugees, while simultaneously prioritising sustainable development and equitable allocation of resources”