'Singling Out Assam Rational; Cut-Off Date Not Arbitrary' : Supreme Court Holds S.6A Citizenship Act Doesn't Violate Article 14

While upholding the constitutional validity of Section 6A of the Citizenship Act 1955, which recognized the Assam Accord, the majority judgment authored by Chief Justice of India D.Y. Chandrachud and Justice Surya Kant (for Justices M.M. Sundresh, Manoj Misra and himself) has held that Section 6A did not violate Article 14. Justice J.B. Pardiwala, who lone dissented, has held otherwise. 

As per the brief background, Section 6A, added through Citizenship Amendment Act, 1985, conferred citizenship to those who migrated from East Pakistan (now Bangladesh) to Assam from January 1, 1966, until 24 March 1971 upon completion of ten years from the date of detection as a foreigner.

The petitioners had contended that Section 6A was violative of Article 14 because the issue of "illegal immigration" was also prevalent in other States and selective application of Section 6A solely to the State of Assam exhibits hostility against it in comparison to other States and has detrimentally affected the natural resources and Indigenous population of Assam.

Migrants before Pakistan's Searchlight Operation were migrants of Indian Partition: CJI

CJI applied the old test of 'reasonable classification text' to Section 6A and held that the legislative objective of Section 6A was to balance the "humanitarian needs of migrants of Indian Origin" and the "impact of the migration on the economic and cultural needs of Indian States". Therefore, the migration to Assam and the cut-off date of March 24, 1971, prescribed under Section 6A are reasonable.

It reasoned that although other States share a greater border with Bangladesh, the "impact of migration in terms of numbers and resources is greater".

He said: "Though other states such as West Bengal (2216.7 km), Meghalaya (443 km), Tripura (856 km) and Mizoram (318 km) share a larger border with Bangladesh as compared to Assam (263 km), the magnitude of influx to Assam and its impact on the cultural and political rights of the Assamese and Tribal populations is higher. The data submitted by the petitioners indicates that the total number of immigrants in Assam is approximately forty Lakhs, fifty seven Lakhs in West Bengal, thirty thousand in Meghalaya and three Lakh and twenty five thousand in Tripura.129 The impact of forty lakh migrants in Assam may conceivably be greater than the impact of fifty seven lakh migrants in West Bengal because of Assam's lesser population and land area compared to West Bengal."

CJI also stated that the cut-off made of March 24, 1971 is also reasonable because the "Pakistani Army launched Operation Searchlight to curb the Bangladeshi nationalist movement in East Pakistan on 26 March 1971". Therefore, migrants before the operation were considered migrants of the "Indian Partition".

He stated: "Similarly, the cut-off date of 25 March 1971 is also rational. Even before the enactment of Section 6A, the IMDT Act defined an 'illegal immigrant' as a person who entered India on or after 25 March 1971 without travel documents. As noted above, the IMDT Act was not specific in its application to Assam. The enactment defined the phrase illegal immigrant for all States though the Central Government did not extend the provisions of the Act to other States. On 25 March 1971, the Pakistani Army launched Operation Search Light to curb the Bengali nationalist movement in East Pakistan. The migrants before the operation were considered to be migrants of partition towards which India had a liberal policy. Migrants from Bangladesh after the said date were considered to be migrants of war and not partition. Thus, the cut-off date of 25 March 1971 is reasonable."

On whether there was a rational nexus with the object of the provision, CJI held it in the affirmative. He said: "Since the migration from East Pakistan to Assam was in great numbers after the partition of undivided India and since the migration from East Pakistan after Operation Search-Light would increase, the yardstick has nexus with the objects of reducing migration and conferring citizenship to migrants of Indian origin.

Section 6A would be under-inclusive only when all those who are similarly situated with respect to the object and on the application of the rational yardstick are not included. Similarly, the provision would be over-inclusive only when those who are not similarly situated with respect to these two parameters are included. That not being the case, Section 6A is neither under-inclusive nor over-inclusive."

Justices Kant, Sundresh, Misra on Article 14

Justice Kant applied both the tests of Article 14: reasonable classification and manifest arbitrariness to Section 6A and held that the provision did not contravene Article 14. Like CJI, Justice Kant referred to two crucial considerations for having Section 6A: first, humanitarian concerns played a significant role in granting citizenship because it was deemed inhumane to repatriate thousands of people who had migrated during times of war. Second, considerations of inter-state relations were pivotal, as India sought to extend cooperation to the newly formed nation of Bangladesh and help it restore normalcy. As part of this understanding, it was agreed to grant citizenship in India to immigrants who arrived before 1971.

On the question of what criteria existed to solely confer citizenship in Assam, Justice Kant cites 'historical reasons' which took the form of a political compromise known as 'Assam Accord. The judgment states: "Section 6A was inserted to advance this political settlement established through the Assam Accord. The long title of the Citizenship Amendment Act, 1985 captures this by stating that, “Whereas for the purpose of giving effect to certain provisions of the Memorandum of Settlement relating to the foreigners' issue in Assam (Assam Accord) which was laid down before the House of Parliament on the 10th day of August, 1985 it is necessary to amend the Citizenship Act, 1955."

Citing the historical reasons, he explained: "Between 1980 and 1985, the Government of India engaged in extensive negotiations with representatives of various bodies in Assam. Eventually, an agreement was reached among the Government of Assam, the Government of India, the AASU, and the AAGSP.

According to this agreement, the movement's representatives against foreigners in Assam agreed to call off the agitation in exchange for granting Indian Citizenship to only a limited category of immigrants in Assam. As a result, the government also extended benefits to those involved in the agitation and committed to focusing on the socio-economic development of Assam, with particular emphasis on building educational institutions. Known as the Assam Accord, this agreement represented a political compromise that specifically granted citizenship to immigrants in Assam based on the terms agreed upon in the Accord."

Justice Kant observed that since Section 6A was predicated on the terms of the Assam Accord, this serves as the basis of intelligible differentia vis-à-vis other States. Further, Justice Kant held that the question of 'whether such agreement entered only with Assam is liable to be set able or the Union of India ought to have entered into similar agreements with other States' is in negative. The Court reasoned: "such a determination falls outside the scope of judicial review, as this Court being not a representative body, should refrain from substituting its judgment for that of the elected representatives.

The decision to enter into political compromises and agreements is a prerogative of the political entities involved, based on the specific circumstances and negotiations at hand. In the case of Assam, the unique situation and the negotiations conducted between 1980 and 1985 led to the Assam Accord, wherein certain benefits were extended to the State. However, it may not be appropriate for us to venture into the exercise of analysing whether similar agreements should have been pursued with other States like West Bengal."

It added: "conclusion is also supported by various decisions of this Court, which have held that based on the unique historical circumstances of each State, the States may be grouped under different classes for the purpose of reasonable classification under Article 14."

Further, on the classification between Assam and similarly placed Sates, Justice Kant's judgment held that the comparison should be between two broad classes: "Assam and the rest of India, rather than each individual constituent of these two classes". The Court held: "Since other States, in general, were not facing similar issues, the differentiation in classes was reasonable. Hence, even if some States like West Bengal were placed similarly to Assam, that in and of itself would not lead to holding Section 6A unconstitutional."

On the test of manifest arbitrariness, Justice Kant held that the cut-off dates set in Section 6A did not suffer from manifest arbitrariness as it was set after proper application of mind based on 'humanitarian grounds' and 'administrative convenience'. It further held that the determination of cut-off dates falls within the domain of the Executive and the Court should not interfere with the fixation of the same.

Like CJI, Justice Kant reiterated that the cut date of March 25, 1971 was set due the of launch of Operation Searchlight by Pakistan, which also marked the onset of the Bangladesh Liberation.

Justice Pardiwala 

Justice Pardiwala has held that Section 6A suffers from manifest arbitrariness because the procedure prescribed leaves the possibility of differential application in similarly situated persons. For immigrants of 1966-71, the procedure does not permit them to voluntarily seek citizenship and the immigrant has to wait, indefinitely, for a reference to be made to the foreigners' tribunal.

He stated: "Neither Section 6A nor the rules made thereunder prescribe any outer timelimit 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 provision is worded in a manner which does not effectively serve either the purpose of granting citizens to the 1966-71 category nor does it effectively serve the object of the expeditious deletion of the same category of immigrants from the electoral rolls.

Justice Pardiwala said: "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. Hence, the manner in which the provision is worded, counter-serves the very purpose of its enactment, which is the speedy and effective identification of foreigners of the 1966-71 stream, their deletion from the electoral rolls, registration with the registering authority and conferring of regular citizenship."

Further, he observed: "Another absurdity which is manifest in the scheme of Section 6A is that once an immigrant belonging to the 1966-71 stream is detected as a foreigner, that person has to mandatorily register within a fixed time period, otherwise the person concerned would be liable to deportation. However, a similarly situated immigrant, who is yet to be detected by the state, can continue to stay in Assam without incurring any liability of deportation."

Further, Justice Pardiwala added another aspect to the manifest arbitrariness which is temporal unreasonableness that a statute may acquire with the influx of time. The test of temporal unreasonable requires to examine whether the reasonable classification based on intelligible differential and that such classification has a rational nexus with the object sought to be achieved remains relevant with the passage of time. 

The Court said: "If the statutory construction that there is no time-limit within which the exercise of detection under Section 6A(3) is to be completed is accepted as correct, then it follows that an immigrant of the 1966-71 stream, upon detection, can avail the benefit of Section 6A(3) even today by following the procedure prescribed under the rules. Thus, it follows that an immigrant who would have entered in the 1966-71 stream and who gets detected as a foreigner of the 1966-71 stream today, can register with the registering authority and his or her name will then be struck off from the electoral rolls for a period of 10 years starting today."

He added: "Thus, an immigrant whose name figures in the electoral roll, despite being a foreigner, continues to be eligible to vote in the elections till that person is detected as a foreigner and the name of that person is struck off the electoral roll. There being no temporal limit to the applicability of Section 6A, this situation would continue in the years to come till the detection exercise is completed. Further, there would never be any way to assess if all the immigrants eligible for availing the benefit of citizenship under

Section 6A(3) have done so, despite the set of people eligible for such a benefit being distinct and determinable. The object of Section 6A(3) of the Citizenship Act was never to permit the immigrants of the 1966-71 stream to vote for an indefinite period of time without first having been deleted from the electoral rolls for a period of ten years or without having been conferred de-jure citizenship in the first place."

He further pointed out that in the absence of a temporal limit to the exercise of detection, the condition - 'has been ordinarily resident in Assam since the date of entry' stipulated under Section 6A of the Citizenship Act, tethers the immigrants of the 1966-71 stream and incentivises them to continue to stay in Assam and not move out of Assam to any other place in or outside India, since that would potentially jeopardize their claim to citizenship under Section 6A. 

Justice Pardiwala held that the open-ended nature of Section 6A has, with the passage time, become more prone to abuse due to the advent of forged documents to establish, inter-alia, wrong date of entry into Assam, inaccurate lineage, falsified government records created by corrupt officials, dishonest corroboration of the date of entry by other relatives so as to aid illegal immigrants who are otherwise not eligible under Section 6A by virtue of having entered into Assam after 24.03.1971

Other reports about the judgment can be read here.