'Post-1971 Illegal Immigration Not Stopped' : Supreme Court To Monitor Action Against Illegal Immigrants In Assam

While upholding the constitutional validity of Section 6A of the Citizenship Act, 1955 - which enables immigrants from Bangladesh who entered Assam before March 25, 1971 to seek Indian citizenship - the Supreme Court lamented that no effective steps have been taken to prevent illegal immigration after 1971.

A 5-judge Constitution Bench comprising Chief Justice of India DY Chandrachud, Justice Surya Kant, MM Sundresh, JB Pardiwala and Manoj Misra decided the matter. While the majority of four judges upheld the provisions, Justice Pardiwala dissented.

"The intention of Section 6A, i.e., to restrict illegal immigration post-1971 has also not been given proper effect," the judgment authored by Justice Kant (for himself, Justices Sundresh and Misra) stated.

Even though the petitioners' arguments challenging the constitutionality of Section 6A were rejected, Justice Kant's judgment acknowledged their concerns about illegal immigration.

"It is imperative to acknowledge and address the valid concerns raised by the Petitioners regarding the persistent immigration in the State of Assam post 25.03.1971. Although Section 6A conferred citizenship rights exclusively to immigrants arriving before this cut-off date, there seems to still be an ongoing influx of migrants through various border States of India. Due to porous borders and incomplete fencing, this unceasing migration imposes a significant challenge," Justice Kant wrote.

During the hearing, the Court had directed the Union Government to furnish data regarding post-1971 illegal immigration from Bangladesh to Assam and North Eastern states. 

"Regarding the inquiry into the estimated influx of illegal migrants post 25.03.1971, the Union of India was unable to provide precise figures due to the clandestine nature of such inflows. This underscores the necessity for more robust policy measures to curb illicit movements and enhance border regulation," the Court noted in the judgment. The judgment also noted that approximately 97,714 cases are pending before the Foreigner Tribunals, and nearly 850 kilometres of border remain unfenced or inadequately monitored.

 Against this backdrop, the Court stressed the need to strictly implement the statutory mechanism to detect and deport illegal immigrants. 

"The statutory machinery and Tribunals tasked with the identification and detection of illegal immigrants or foreigners in Assam are inadequate and not proportionate to the requirement of giving time-bound effect to the legislative object of Section 6A read 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."

The judgment also directed that the directions issued by the Supreme Court in Sarbananda Sonowal v Union of India (2005) to deport the illegal immigrants who entered the State of Assam on or after 25.03.1971 must be given effect to.

"The implementation of immigration and citizenship legislations cannot be left to the mere wish and discretion of the authorities, necessitating constant monitoring by this Court," the Court observed.

It therefore decided to monitor the implementation of the directions and directed that the matter be placed before an appropriate bench for such purposes.

Justice Kant's judgment also made the following declarations :

(i) immigrants who entered the State of Assam prior to 1966 are deemed citizens;

(ii) immigrants who entered between the cut off dates of 01.01.1966 and 25.03.1971 can seek citizenship subject to the eligibility conditions prescribed in Section 6A (3); and

(iii) immigrants who entered the State of Assam on or after 25.03.1971 are not entitled to the protection conferred vide Section 6A and consequently, they are declared to be illegal immigrants. Accordingly, Section 6A has become redundant qua those immigrants who have entered the State of Assam on or after 25.03.1971.