Supreme Court Upholds Validity Of S.6A Of Citizenship Act Recognizing Assam Accord By 4:1 Majority

The Supreme Court today (October 17) upheld the constitutional validity of Section 6A of the Citizenship Act 1955, which recognized the Assam Accord, by 4:1 majority.

The 5-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. The majority held that Section 6A was enacted to balance the humanitarian concerns with the need to protect the local population.

No arbitrariness in singling out Assam

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 Pakistan started Operation Searchlight against Bangladesh movement in East Pakistan. 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.

No basis for the argument that S.6A violates the fraternity principle

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.

Justice Kant's 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 out the following conclusions regarding Section 6A :

1. Immigrants who entered Assam before the date of January 1, 1966, are deemed to be Indian citizens.

2. Immigrants who entered Assam between the dates January 1, 1966, and March 25, 1971, are entitled to seek Indian citizenship provided they fulfil the eligibility criteria.

3. 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.

Directions to detect illegal migrants should be enforced

Justice Kant 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's dissent 

Justice Pardiwala's line of reasoning was that a piece of legislation may be valid at the time of enactment but by afflux of time, it has become temporarily flawed.

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.

Section 6A has acquired unconstitutionality with the afflux of time. He therefore declared Section 6A as unconstitutional with prospective effect.

Justice Pardiwala in his opinion has concluded that Section 6A(3) is unconstitutional for the following reasons:

a. The low detection of immigrants who entered Assam between 1966- 71 is attributable to the manifest arbitrariness of the mechanism prescribed by Section 6A(3);

b. Section 6A(3) requires the migrant to be detected as a foreigner, to register as a citizen. However, the mechanism does not provide for self-declaration or voluntary detection as a foreigner. The process of detection can only be set in motion by the State. This is a clear departure from the scheme of the Citizenship Act and Articles 6 and 7 of the Constitution which allows acquiring citizenship through registration.

c. Section 6A(3) does not prescribe an outer time limit for the detection of an immigrant to Assam as a foreigner. This militates against the purpose of the provision and is arbitrary for the following reasons:

i.The name of a person who is detected as a foreigner today would be deleted from the electoral rolls for ten years from the date of detection. This consequence is not in consonance with the object of the provision which was early detection, deportation and conferment of citizenship176;

ii.Placing the onus on the State to detect a foreigner coupled with the absence of temporal limit allows immigrants to continue to be on the electoral rolls and enjoy being de-facto citizens177; and

ii. Section 6A(3) incentivizes undocumented immigrants from Bangladesh to stay in Assam indefinitely until they are detected as Foreigners since they will be able to acquire citizenship only if they are 'ordinarily resident' in Assam

What Is S.6A Of Citizenship Act 1955? 

Section 6A of the Citizenship Act 1955 allows foreign migrants of Indian origin, who came to Assam after the 1st January, 1966 but before the 25th March 1971, to seek Indian citizenship. The provision was inserted in 1985 following the Assam Accord, an agreement entered into between the Government of India and the leaders of the Assam movement who had protested for the removal of illegal migrants who entered Assam from Bangladesh. The cut-off date (25th March, 1971) was the prior date of the proclamation of Bangladesh independence.

Certain indigenous groups of Assam have challenged this provision, contending that it legalised illegal infiltration of foreign migrants from Bangladesh.

Main Contentions Raised By The Petitioners  

1. Section 6A violates the essential fabric of the Constitution as provided under Preamble, namely, fraternity, citizenship, unity, and integrity of India.

2. Section 6A violates fundamental rights as provided under Articles 14, 21, and 29.

3. Section 6A violates political rights of citizens as provided under Articles 325 and 326.

4. The provision is outside the ambit of legislative competence and it is contrary to the "cut off line" as provided under the Constitution.

5. The provision undermines the overarching principles of democracy, federalism, and rule of law which are a part of the basic structure of the Indian Constitution.

Accordingly, the following prayers arose from the petition–

1. Declare that Section 6A is unconstitutional for being violative of Article 14, 21, and 29;

2. Declare Rule 4A of the 2003 Rules as well as the notification dated 5 December 2013 as ultra vires of Section 6A;

3. In the alternative, issue a writ of mandamus or any other writ to order/direct the Union of India to frame a policy in consultation with States and Union Territories (UTs) for settlement and rehabilitation of immigrants who came to Assam after 6 January 1951 across all States and UTs of India proportionally;

4. Direct the Union to complete fencing of the border and take steps for the process of identification, detection, and deportation of foreigners from the State of Assam;

5. Direct the Union to take steps to remove encroachers from protected tribal lands created under Assam Lands and Revenue Regulations. 

Case Trajectory

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 regularizing illegal migrants in Assam versus the rest of India was unfair. They 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 organizations 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, R.K. Agarawal, Prafulla Chandra Pant, D.Y. Chandrachud, and Ashok Bhushan.

Since all the judges except for Justice Chandrachud retired, a new bench comprising Chief Justice D.Y. Chandrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli and Justice P.S. 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. 

Other reports about the judgment can be read here.

Case Title: In Re: Section 6A Citizenship Act 1955 

Citation : 2024 LiveLaw (SC) 808

Click Here To Read/Download Judgment 

Hearing reports :

Assam Accord | S.6A Citizenship Act Was Enacted Considering Humanitarian Aspects After Bangladesh Liberation, Says Supreme Court During Hearing