Supreme Court: In the landmark ruling concerning Section 6-A of the Citizenship Act, Justice JB Pardiwala, J. while examining the matter from a different dimension, more particularly by applying the doctrine of temporal reasonableness, held that Section 6-A of the Citizenship Act is invalid with prospective effect.
Justice Pardiwala concluded that:
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Immigrants who migrated before 01-01-1966 and were conferred deemed citizenship on the date of commencement of Section 6A(2), subject to fulfilment of all the conditions mentioned therein, shall remain unaffected.
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Immigrants who migrated between 01-01-1966 and 24-03-1971 (both inclusive) and have been granted citizenship after following the due procedure prescribed under Section 6A(3) shall remain unaffected.
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Immigrants who migrated between 01-01-1966 and 24-03-1971 (both inclusive) and who have been detected as foreigners and have registered themselves with the registering authority as per the prescribed rules, shall be deemed to be citizens of India for all purposes from the date of expiry of a period of ten years from the date on which they were detected as foreigners.
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Immigrants who migrated between 01-01-1966 and 24-03-1971 (both inclusive) and who have been detected as foreigners but have not registered themselves with the registering authority within the prescribed time limit as per the Citizenship Rules, 2009 will no longer be eligible for the benefit of citizenship.
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Immigrants who migrated between 01-01-1966 and 24-03-1971 (both inclusive) and whose applications are pending for adjudication before the Foreigners Tribunal, or who have preferred any appeal against any order of such tribunal which is pending before any court will continue to be In Re: Section 6-A of the Citizenship Act, 1955 governed by Section 6A(3) as it stood immediately prior to the pronouncement of this judgment, till their appeals are disposed of.
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From the date of pronouncement of this judgment, all immigrants in the State of Assam shall be dealt with in accordance with the applicable laws and no benefit under Section 6A shall be available to any such immigrant.
Justice Pardiwala though agreed with the majority that the Parliament has the jurisdiction to specify conditions for the conferment of citizenship and thus Section 6-A of the Citizenship Act is not rendered void for the lack of competence of the legislature, he disagreed that the fundamental premise of the majority’ reasoning that Section 6A is similar in form and identical in spirit with Articles 6 and 7 of the Constitution.
He explained that Section 6-A(3) of the Citizenship Act entrusts the State with the duty of detecting immigrants and conferring citizenship on them, Article 6 prescribes for a registration system that places the onus of individually undertaking such registration on the person who wishes to avail citizenship. Secondly, unlike Section 6-A(3) of the Citizenship Act which has no prescribed end-date for the completion of registration, Article 6 prescribes that an application for registration has to be made before the date of commencement of the Constitution. These two crucial differences are the underlying reasons for shrouding Section 6-A of the Citizenship Act with a cloak of unconstitutionality.
Justice Pardiwala viewed that Section 6A cannot be said to be violative of Article 14 for being under inclusive. However, on the aspect of manifest arbitrariness, he viewed that Section 6A has acquired unconstitutionality subsequent to its enactment in 1985 by efflux of time and has thus become violative of Article 14 for being temporally unreasonable.
He also highlighted the features of clause 5 of the Accord which deals with the foreigners’ issue and forms the basis of Section 6-A of the Citizenship Act.
Examining whether it was open to the legislature to prescribe two cut-off dates, thereby creating two different classes of immigrants who are entitled to citizenship by two distinct mechanisms, the Court noting that Section 6 A was a humanitarian and beneficial provision for the immigrants, said that if such was the sole object of the provision, then there was no need for the legislature to create two distinct categories of immigrants who were eligible for citizenship. The legislature could have simply conferred deemed citizenship on every immigrant who came into Assam before 24.03.1971 from the date of coming into force of Section 6A. The very fact that a second category of immigrants (1966-71) was statutorily created and subjected to undergo a more stringent test of procedure for the purpose of obtaining citizenship would indicate that conferment of citizenship was not the sole object of Section 6A(3). The object behind insertion of Section 6A(3) seems to have been to pacify the apprehension of the people of Assam that conferment of citizenship would not have an immediate impact on the then upcoming elections in the State of Assam due to the inclusion of a large number of immigrants.
Justice Pardiwala viewed that the intention of the parties while signing the Accord should be kept in mind while construing the object of Section 6-A of the Citizenship Act.
Whether the onus of detection of foreigners of the 1966-71 stream lies on the State
After perusing Section 6A, Justice Pardiwala said that there is no provision which prescribes or provides for self-declaration/registration or voluntary detection as a foreigner within a given time for availing the benefit of citizenship by registration under Section 6A (3).
He explained that the mechanism of implementation of Section 6A is set into motion with the first step of reference of a suspected foreigner to the foreigners tribunal. As soon as a reference is made to the tribunal, the onus is on the suspected person to either establish that he or she is an Indian citizen, or to establish that he or she is an immigrant eligible to avail the benefit available under Section 6A. Once the tribunal holds that the suspected person is a foreigner of the 1966-71 stream of immigrants, then again, the onus is on the said person to get registered in accordance with the Citizenship Rules, 2009 failing which his or her claim to citizenship would abate.
He remarked that while the statute is clear that the onus completely shifts on the suspected foreigner once a reference is made to the tribunal, it is illogically unique that a person wanting to avail the benefit of citizenship by registration under Section 6A(3) has to await identification as a suspicious immigrant and subsequent reference to the tribunal. There is no plausible reason why it should be impermissible for him or her to set the mechanism of Section 6A into motion by voluntarily choosing to get detected as a foreigner of the class specified in Section 6A, or to make an application for conferment of citizenship.
Thus, the statutory scheme of Section 6A(3), which doesn’t envisage voluntary detection at the option of the immigrant, marks a clear departure, for no intelligible reason, from the prevalent scheme noticed under the rest of the Citizenship Act. Articles 6(b) and 7 of the Constitution, which deal with citizenship by registration and the permit system introduced to meet the exigencies of partition, too, place the onus of registration and obtaining permit on the person who wishes to claim such benefit. Thus, there is no discernible reason why the mechanism prescribed under Section 6A does not require, or at the very least, permit an immigrant to come forward and make an application to avail the benefit.
Temporal Reasonableness
Justice Pardiwala mentioned that doctrine of temporal reasonableness is encapsulated in the Latin maxim “Cessante ratione legis cessat ipsa lex” which means that reason is the soul of the law and when the reason of any particular law ceases, so does the law itself. Thus, when the reason for which a particular law was enacted ceases to exist due to efflux of time, then the law too must cease to exist.
After analysing of the scheme of Section 6A and the corresponding rules along with the decision in State of Assam v. Moslem Mandal, 2013 SCC OnLine Gau 1, the Court said that placing temporal limitations on the benefits available under Section 6A appears to have been one of the objects of the legislation – as otherwise the provision would go against the spirit of the Assam Accord.
The Court opined 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. Therefore, Section 6A without any end date of application, promotes further immigration into Assam — immigrants come hoping with forged documents to set up the defence of belonging to pre-1966 or the 1966-71 stream upon identification as a foreigner and reference to the tribunal.
The Court also discussed the concept of manifest arbitrariness vis-à-vis temporal unreasonableness.
The Court reiterated that even if a statutory provision fulfils the two-pronged test of reasonable classification and rational nexus with the object of enactment, it can still suffer from the vice of manifest arbitrariness and be violative of Article 14 if the provision may lead to differential application on similarly situated persons.
The Court opined that the departure of the scheme of Section 6A from the Constitutional and statutory framework and the prevalent international practice coupled with the absence of any temporal limits on the applicability of Section 6A has the effect of rendering it manifestly arbitrary and constitutionally invalid.
The Court concluded that Section 6A being manifestly arbitrary, temporally unreasonable and, demonstrably unconstitutional cannot be allowed to continue for all times to come. Hence, it would be appropriate to declare Section 6A unconstitutional with prospective effect. This would ensure that the benefit which has already been derived by the immigrants in Assam is not taken away, more particularly when the challenge to Section 6A has been made after a considerable delay.
[Section 6A of the Citizenship Act 1955, In re, 2024 SCC OnLine SC 2880, decided on 17-10-2024]
