Section 6A of Citizenship Act | Five-judge bench upholds constitutionality in a 4:1 majority

CJI Chandrachud: Mere presence of another ethnic group does not violate Article 29

CJI Chandrachud began by identifying key issues in the case, particularly focusing on Articles 6 and 7 of the Constitution. These provisions prescribe a cut-off date for granting citizenship to persons entering India from Pakistan and those migrating from India to Pakistan. The petitioners argued that Section 6A violated these provisions as they also applied to Bangladesh, which was part of Pakistan when the Constitution was enacted. However, the Chief held that Section 6A does not amend the Constitution, as Articles 6 and 7 only address citizenship for people on the date of the Constitution’s commencement—26 January 1950. 

“For example, Article 6 does not cover a person who migrated from East Pakistan to Assam after 19 July 1948 but did not apply to register as a citizen before the commencement of the Constitution. Section 6A confers citizenship on such persons,” the Chief said. Therefore, Section 6A, he said, deals with a different time frame and does not alter the provisions that were in place at the time the Constitution was enacted. 

In line with CJI Chandrachud, Justice Kant also held that Section 6A does not violate Article 6. He clarified that Article 6 does not prohibit the granting of citizenship after the cut-off date of 19 July 1948. Further, he highlighted that Parliament has the authority under Article 11 to prescribe conditions for citizenship, and the Court should not interfere with the legislature’s determination of such a cut-off date. He added that the cut-off dates were not based on “discriminatory and arbitrary considerations. Since Section 6A does not grant citizenship to those who entered after 25 March 1971, the provision had become redundant for those who migrated post-1971.

CJI Chandrachud then explained that Section 6A was introduced to handle the influx of migrants who had already entered India and those who were expected to enter the country. He characterised the Assam Accord as a “political solution” and Section 6A as a “legislative solution” balancing humanitarian concerns for migrants of Indian origin with the economic and cultural impact of such migration on Indian states. The cut-off date of 24 March 1971 was rational, he said, as it distinguished “migrants of partition” from those entering after Pakistan initiated “Operation Searchlight” on 25 March 1971. Those who entered after were termed as “migrants of war” and therefore illegal.

CJI Chandrachud also concluded that migration under Section 6A does not violate Article 355 of the Constitution. This provision obligates the Union to protect states from external aggression and internal disturbances. Petitioners argued that the mass influx of immigrants placed this burden on the Union, but CJI Chandrachud cautioned against such an interpretation. He stated that the provision is located in Part 18 of the Constitution, which deals with emergency powers, and allowing citizens or courts to invoke them could endanger the federal structure of India.

CJI Chandrachud rejected the petitioners’ claims under Article 29, which protects the rights of ethnic and cultural minorities. He stated that the mere presence of different ethnic groups in Assam was insufficient to claim a violation of Article 29(1). To invoke Article 29, petitioners had to prove that an ethnic group could no longer protect its culture or language due to the presence of another group. Justice Kant in his opinion added that the petitioners “have failed to show either an actionable impact on Assamese culture, or trace the cause of it to Section 6A.” 

Finally, he addressed concerns about the lack of a registration process for citizenship under Section 6A(2), which pertains to migrants who entered before 1 January 1966. He clarified that registration is not the “de facto” method for acquiring citizenship in India, comparing it to Sections 3 and 4 of the Citizenship Act, which grant citizenship by birth or descent without requiring registration. Therefore, Section 6A(2) could not be struck down simply because it did not mandate a registration process.

Justice Kant: Petitioners have interpreted “fraternity” very restrictively 

Justice Kant began by dismissing the challenges raised by the respondents on the maintainability of the petitions. Once that was settled, he delved into his rationale for upholding the constitutionality of Section 6A of the Citizenship Act. Similar to CJI Chandrachud, Justice Kant outlined the core issues at stake. These included whether Section 6A violated the right to vote under Article 326, the right to life and liberty under Article 21 and whether it breached international law.

Justice Kant began by critiquing the petitioners’ interpretation of ‘fraternity’. He noted that the petitioners seemed to advocate for a restrictive notion of fraternity that would allow them to “choose their neighbours.” He rejected this view, stating that such an approach contradicts the very principles of fraternity envisioned by the Constituent Assembly. He stated that fraternity should not be applied in a “negative manner”. 

Responding to the petitioners’ concerns that Section 6A enabled dual citizenship, Justice Kant also stated that persons granted Indian citizenship under Section 6A relinquished their previous citizenship. He also dismissed the petitioners’ argument that an “oath of allegiance” to the Constitution is mandatory for acquiring citizenship. According to him, “the absence of such an oath does not absolve the immigrants from their obligation to respect the law and order of India.” Even without taking an oath, he said, every citizen is required to follow the norms of the Constitution and laws of the country.

Justice Kant also held that Section 6A did not violate Article 14 by singling out Assam as other border states like West Bengal, Meghalaya and Tripura did not face similar issues. According to him, “the comparison should be between two broad classes: Assam and the rest of India, rather than each individual constituent of these two classes”. Regarding Article 21, Justice Kant found that, like in the case of Article 29, the petitioners had failed to demonstrate any “constitutionally actionable impact” on their communities. Similarly, he found no violation of the right to vote under Article 326, as Section 6A merely extends the right to vote to new citizens. 

Finally, he dismissed the argument that the provision violated international law, asserting that domestic law takes precedence over international law. 

After concluding his analysis, Justice Kant issued the following directions: 

1. Section 6A is redundant for immigrants who entered after 25 March 1971, they are illegal and should be deported. The provisions of the Immigrants (Expulsion from Assam) Act, 1950 shall be read with Section 6A to identify the illegal immigrants. 
2. The statutory machinery and Foreigner Tribunals are inadequate and not proportionate to the requirement of giving time-bound effect to the legislative object of Section 6A.
3. The implementation of these immigration and citizenship legislations should be monitored by the Supreme Court.

Justice Pardiwala: Section 6A incentivises immigrants to continue to remain on the electoral rolls for an indefinite period

Justice Pardiwala made it clear that his dissent was from a different perspective. “My line of reasoning proceeds on the footing that a piece of legislation may be valid at the time of enactment but there could be a provision which by efflux of time may become temporally unreasonable. That is how I have proceeded to express my views,” he said. 

Justice Pardiwala’s dissent mainly dealt with Section 6A(3) which deals with citizenships for those who entered between 1 January 1966 and 24 March 1971. He expressed concern that the number of “foreigners” detected under this provision was far lower than the actual number of immigrants who arrived during this period. He attributed this discrepancy not just to poor implementation but to the inherent arbitrariness in the mechanism of Section 6A itself.

He noted that Section 6A created two distinct categories of immigrants: those who arrived before 1 January 1966 (under Section 6A(2)) and those who entered between 1 January 1966 and 24 March 1971 (under Section 6A(3)). The cut-off date of 1 January 1966, he said, was introduced to address concerns about the “wrongful inclusion of immigrants in the electoral rolls” ahead of elections. However, this exercise could have been effective only if all immigrants from the 1966-71 period were detected and removed from the electoral rolls in a timely manner, which did not happen. As this process was not carried out, the object behind creating the two distinct categories was not achieved. 

Moreover, Justice Pardiwala highlighted the absence of a mechanism for individuals who entered between 1966 and 1971 to voluntarily declare themselves as foreigners in order to register for citizenship. Instead, the burden of detecting foreigners was placed solely on the state. He added that this had adverse consequences. First, “it relieves the state from the burden of effectively identifying, detecting, and deleting from the electoral rolls…Secondly, it incentivises the immigrants belonging to the 1966-71 stream to continue to remain on the electoral rolls for an indefinite period”. He continued, “Further, what stands out as palpably irrational in the scheme of Section 6A of the Citizenship Act is that there is no end date after which the benefit of citizenship under Section 6A(3) cannot be availed.” 

He thus concluded that the provision “counterserves the object” of the provision due to the passage of time as there is no temporal or time limit to the provision. As a result, Justice Pardiwala declared Section 6A(3) unconstitutional. He clarified that this ruling would neither affect immigrants who arrived before 1 January 1966 nor those who were detected as foreigners between 1966 and 1971 and subsequently granted citizenship. 

Similarly, immigrants who had been detected as foreigners and registered for citizenship, or those with pending appeals, would not be impacted by his judgement. However, immigrants from the 1966-71 period who had not yet been identified as foreigners would now be classified as illegal immigrants. Justice Pardiwala’s ruling applied prospectively, meaning the provision would be deemed unconstitutional from the date of judgement.