Supreme Court: In a writ petition concerning the constitutionality of Section 6A of the Citizenship Act, the 5-Judge Constitution Bench of Dr. DY Chandrachud*, CJI, Surya Kant*, MM Sundresh, JB Pardiwala and Manoj Misra, JJ. upheld the validity of Section 6A in a 4:1 majority, with Justice Pardiwala gave the dissenting opinion.
In this case, the Chief Justice authored the majority opinion, while Justice Surya Kant wrote a separate opinion that was joined by Justices M.M. Sundresh and Manoj Misra. Justice JB Pardiwala, on the other hand, gave a dissenting opinion.
Background:
In 1985, the Citizenship (Amendment) Act 1985 was enacted to include Section 6A to the Citizenship Act. Section 6-A of the Citizenship Act 1955 confers citizenship to persons of Indian origin who migrated from Bangladesh to Assam. The provision classifies the class of migrants into two categories based on when they entered Assam:
- Entered Assam before 1 January 1966
-
Came to Assam after 1 January 1966 but before 25 March 1971.
Section 6-A of the Citizenship Act, 1955, specifies the criteria for determining whether a person is deemed to be a citizen of India as on January 1, 1966. It particularly addresses the situation of immigrants in Assam, stating that those who arrived after this date but before March 25, 1971, can apply for citizenship after residing in India for ten years; however, they are not allowed to vote during the first ten years of their citizenship. In contrast, immigrants who arrived after March 25, 1971, are classified as illegal immigrants and are subject to detection and deportation.
The petitioners-initiated proceedings under Article 32 of the Constitution, challenging the constitutional validity of Section 6A of the Citizenship Act on the grounds that it violates Articles 6,7,14, 29 and 355. By an order dated 17-12 2014 in Assam Sanmilita Mahasangha v. Union of India (2015) 3 SCC 1, a two-Judge Bench referred the issue of the constitutional validity of Section 6A to a Constitution Bench.
Issues, Analysis and Decision:
1. Whether the grant of citizenship to migrants from Bangladesh to Assam was within the legislative competence of Parliament under Article 11 of the Constitution?
Legislative competence of Parliament to enact Section 6A
To understand the context in which Section 6A was inserted in the Citizenship Act, the Court examined the legal regime on citizenship, in particular the provisions governing citizenship status to migrants from East and West Pakistan in the aftermath of the partition of India.
Whether Section 6A prescribes a cut-off date different from that prescribed by Articles 6 and 7 for migrants from Bangladesh to Assam
After taking note of Articles 5, 6, 7 of the Constitution, the Court concluded the following:
- The Constitution only prescribes who would be citizens upon the commencement of the Constitution, as evident from the phrase ‘at the commencement of the Constitution’ and the drafting history of the provision;
- Article 6 covers a limited class of migrants from both Pakistan and Bangladesh to India (including Assam). The provision only covers those who migrated to India till 26 July 1949 (based on the six months residence requirement);
- The benefit of citizenship to the class covered by the proviso to Article 7 depended on the permit system prescribed by law. Though the proviso to Article 7 does not distinguish between migrants from West Pakistan and East Pakistan, migrants from the latter were unable to secure the benefit of citizenship in the absence of Rules on the implementation of the permit system along the eastern border. Thus, the proviso to Article 7 only covered those who remigrated to India from West Pakistan after 1 March 1947 but before 26 July 1949; and
-
Article 6 and the proviso to Article 7 confers citizenship on a limited class upon the commencement of the Constitution.
The Court explained that as opposed to Articles 6 and 7, Section 6A confers citizenship on those who migrated from Bangladesh to Assam until 24 March 1971. Section 6A deals with those who are not covered by the constitutional provisions, that is those who migrated (or re migrated) after 26 July 1949. Thus, there is a certain degree of overlap between Section 6A and the constitutional provisions. However, that does not amount to an ‘alteration or amendment’ of the constitutional provisions. Article 6 and the proviso to Article 7 confer citizenship on the ‘commencement of the constitution’ and only deal with who shall be citizens on 26 January 1950. In contrast, Section 6A confers citizenship from 1 January 1966 to those who migrated before that date. Those who migrated between 1 January 1966 and 24 March 1971, are conferred citizenship upon the completion of ten years from the date of detection as a foreigner Thus, Section 6A confers citizenship on a later date to those who are not covered by Articles 6 and 7. Section 6A could be interpreted to alter or amend Articles 6 and 7 only if it conferred citizenship retrospectively, as at the commencement of the Constitution, which is not the case.
Thus, the Court held that Section 6A of the Citizenship Act does not have the effect of amending Articles 6 and 7.
Whether Article 11 of the Constitution confers Parliament with the power to ‘alter’ the provisions in Part II of the Constitution conferring citizenship?
The Court noted that Article 11 stipulates that the provisions of Part II shall not ‘derogate’ from the power of Parliament to make any provision with respect to (a) acquisition of citizenship; (b) termination of citizenship; and (c) all other matters relating to citizenship. Further, Article 10 is also related to Parliament’s law-making power on citizenship.
The Court also noted that Article 246 read with Entry 17 of List I of the Seventh Schedule to the Constitution confers Parliament the power to make laws with respect to ‘citizenship, naturalisation and aliens’.
Examining the purpose and scope of Article 11, the Court noted that in the earlier scheme, the Constitution was to stipulate the conditions for securing citizenship and Parliament was conferred with the power to make ‘further’ provisions. However, the Draft Constitution of India 1948 did not consist of a provision on acquisition of citizenship after the commencement of the Constitution. Part II of the Draft Constitution only consisted of provisions on citizenship at the commencement of the Constitution and Parliament’s power to make “further” provisions. The phrase “further provision” was used when the Draft dealt with the acquisition of citizenship after the commencement of the Constitution. However, once that was deleted, the language of Article 11 was amended.
The Court clarified that the use of the phrases ‘notwithstanding’ and ‘shall not derogate from’ produce different effects. Thus, Article 11, produces the following meaning:
a. The legislative competence of Parliament to enact laws related to citizenship is traceable to Entry 17 of List I and not Article 11; and
b. The provisions in Part II do not impact or limit the legislative competence of Parliament.
The Court remarked that non-obstante clause cannot be artificially read into Article 11.
Thus, the Court held that Article 11 is not a non-obstante clause. However, since the Constitution confers citizenship only at the commencement of the Constitution, the law enacted in exercise of the power under Article 246 read with Entry 17 of List I and the constitutional provisions on citizenship operate in different fields.
2. Whether Section 6A of the Citizenship Act adopts unreasonable cut off dates and singles out the State of Assam thereby violating Article 14 of the Constitution
Sub Issues:
a. Whether Section 6A is underinclusive because it grants citizenship only to migrants from Bangladesh to Assam;
b. Whether all Indian States bordering Bangladesh form a ‘homogenous class’ for the purposes of the law such that Assam alone could not have been singled out;
c. Whether the cut-off date of 25 March 1971 is arbitrary.
The Court discussed the provisions of the Citizenship Act and examined the scope of judicial review under Article 14.
The Court said that the standard of review to be adopted by courts must thus depend on the nature of the right which is alleged to be infringed and discussed the traditional two-prong test for testing the classification to be constitutionally permissible.
Concerning the scope of judicial review of under-inclusive provisions, the Court said that to determine if Section 6A is violative of Article 14 on the ground of under inclusiveness, the scope of judicial review on the ground of under-inclusion first needs to be set out.
The Court mentioned that under inclusiveness and over-inclusiveness depends on whether those who are similarly situated have not been included or those who are not similarly situated have been included.
The Court concluded the following:
- There is no general principle that the constitutional validity of under inclusive provisions must be assessed with judicial deference;
- The degree of judicial scrutiny of an under-inclusive provision depends on the subject matter. The Courts must adopt a higher degree of judicial scrutiny if the law deals with core rights of individuals or groups (as opposed to economic policy); and
-
The determination of the yardstick for classification will help in the assessment of whether a provision is under-inclusive or over inclusive. The yardstick must have a nexus with the object and must be in consonance with constitutional principles. If the yardstick satisfies the test, then the State must determine if all persons/situations similarly situated based on the yardstick have been included. The State must on the submission of cogent reason justify if those who are similarly situated have not been included (under-inclusiveness) or those who are not similarly situated have been included (over-inclusiveness). The degree of justification that the State is required to discharge depends on the subject-matter of the law, that is whether the matter deals with economic policy or fiscal matters, whether it is a beneficial provision such as a labour provision or whether it deals with the core or innate traits of individuals. The degree of justification is the least for economic policy, higher for a beneficial provision and the highest if it infringes upon the core or innate trait of individuals.
Section 6A is violative of Article 14 or not ?
Analysing the legislative objective of Section 6A of the Citizenship Act, the Court said that the provisions of Section 6A of the Citizenship Act are traceable to the Assam Accord, which was a political settlement between the Union of India (‘the executive’) and students groups in Assam.
The Court noted that Section 6A was included with the objective of reducing the influx of migrants to India and dealing with those who had already migrated. Further, it remarked that Assam Accord was a political solution to the issue of growing migration and Section 6A was a legislative solution. Section 6A must not be read detached from the previous legislation enacted by Parliament to deal with the problem of influx of migrants of Indian Origin. Section 6A is one more statutory intervention in the long list of legislation that balances the humanitarian needs of migrants of Indian Origin and the impact of such migration on economic and cultural needs of Indian States.
The Court reiterated that Section 6A confers citizenship to migrants from Bangladesh to Assam before 25 March 1971. The Court noted two yardsticks from Section 6A:
- migrants must have entered Assam; and
-
the entry of migrants must be before the cut-off date of 25 March 1971.
The Court determined if the two yardsticks are reasonable, have a nexus with the object and are in compliance with constitutional principles.
The Bench remarked that Parliament, even before the enactment of the Citizenship (Amendment) Act 1995 has treated migration to the State of Assam as a cause of concern. Further, it said that 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.
Additionally, the Court affirmed that the cut-off date of 25 March 1971 is also rational as even before the enactment of Section 6-A, the Illegal Migrants (Determination by Tribunals) Act, 1983 (‘IMDT Act’) defined an ‘illegal immigrant’ as a person who entered India on or after 25 March 1971 without travel documents. Further, 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.
Thus, the Court held that the cut-off date and the singling out of Assam is based on rational considerations.
Answering whether the yardsticks have a rational nexus with the object of the provision, in affirmative, the Court explained that 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.
Concerning whether granting ‘citizenship’ has any relevance to the migration crisis, the Court reiterated that the Citizenship Act and the notifications issued by the Ministry of Home Affairs allowed the acquisition of citizenship by undocumented citizens through registration under Section 5(1)(a). This was the position until Section 5(1) was amended by the 2003 Amendment Act to exclude applications from ‘illegal immigrants. Thus, the claim that undocumented migrants to other Indian States were not able to secure citizenship is erroneous. Therefore, conferring citizenship has a nexus since the legislative object of introducing Section 6A was not just to deal with the migration from Assam but to balance it with humanitarian considerations (including conferment of citizenship) for partition refugees.
Thus, the Court held that Section 6A falls within the bounds of the Constitution and does not contravene the foundational principles of fraternity, nor does it infringe upon Articles 6 and 7, Article 9, Article 14, Article 21, Article 29, Article 326, or Article 355 of the Constitution of India. Furthermore, Section 6A does not clash with the Immigrants (Expulsion from Assam) Act, 1950 (‘IEAA’) or established principles of international law.
Justices Surya Kant, M.M. Sundresh and Manoj Misra held that while the statutory scheme of Section 6A is constitutionally valid, there is inadequate enforcement of the same leading to the possibility of widespread injustice. Further, the intention of Section 6A, i.e., to restrict illegal immigration post 1971 has also not been given proper effect.
- Accordingly, they issued the following directions: 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); andImmigrants 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;
- The directions issued in Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 are required to be given effect to for the purpose of deporting the illegal immigrants falling in the category of direction (b) (iii) above;
- The provisions of the Immigrants (Expulsion from Assam) Act, 1950 shall also be read into Section 6A and shall be effectively employed for the purpose of identification of 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 184 Assam) Act, 1950, the Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, the Passport (Entry into India) Act, 1920 and the Passport Act, 1967; and
-
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
3. Whether Section 6A of the Citizenship Act can be regarded to be violative of Article 355 on the ground that the provision does not curb undocumented immigration which amounts to ‘external aggression’?
The Court noted that Article 355 provides that it is the duty of the Union to protect States against external aggression and internal disturbance and ensure that the Government of every State is carried on in accordance with the provisions of the Constitution.
Concerning whether a legislative enactment can be challenged for contravention of Article 355 of the Constitution, the Court said that “such an interpretation would lead to disastrous consequences”. Reading the duty in Article 355 into a right would effectively place the emergency powers with citizens and courts. Such a consequence would be catastrophic for the federal structure of the Indian Constitution and would subjugate the constitutional status of States.
The Court remarked that Article 355 cannot be elevated as an independent ground of judicial review in view of the purpose of the provision (as a justification clause) and the impact of such a reading on the federal framework of the Constitution.
The Court further said that petitioners in this case, seek to challenge the constitutional validity of a legislative provision on the ground of Article 355, thereby elevating Article 355 to an independent ground for judicial review of legislative action, which is beyond the scope of the provision. Besides a lack of legislative competence and a violation of Part III, legislation may be challenged for breach of a substantive limitation on legislative power, created by a constitutional provision. Article 355 is not, however, such a provision.
Thus, the Court held that the constitutional validity of a legislation cannot be tested for violation of Article 355, as it was included in the Constitution as a justification for the exercise of emergency powers by the Union over States.
4. Whether Section 6A of the Citizenship Act is violative of Article 29(1) of the Constitution on the ground that the Assamese cultural identity is lost as a direct consequence of granting citizenship to migrants from Bangladesh residing in Assam?
The Court noted that Article 29(1) guarantees the right to take steps to protect the culture, language and script of a section of citizens. Further, the petitioners claimed that Section 6A is violative of Article 29 because it permits people from Bangladesh who have a distinct culture to be ordinarily resident in Assam and secure citizenship which infringes upon their right to conserve Assamese culture.
The Court mentioned that the heading to Article 29(1) reads ‘protection of interests of minorities. However, the text of the provision is not limited to minorities. It confers the right to any ‘section of citizens’ having a distinct language, script or culture. Thus, Article 29 applies to non-minorities as much as it applies to minorities.
The Court said that the mere presence of different ethnic groups in a State is not sufficient to infringe the right guaranteed by Article 29(1), as it confers the right to ‘conserve’ which means the right to take positive steps to protect culture and language.
The Court explained that the petitioners ought to prove that the necessary effect of the law that promotes the presence of various ethnic groups in a State is that another ethnic group is unable to take steps to protect their culture or language. The petitioner also ought to prove that the inability to take steps to conserve culture or language is attributable to the mere presence of different groups.
The Court highlighted that the cultural and linguistic interests of the citizens of Assam are protected by constitutional and statutory provisions.
The Court held that Section 6A does not violate Article 29(1) of the Constitution, as the petitioners were unable to prove that the ability of the Assamese to take steps to protect their culture is violated by the provisions of Section 6A.
5. Whether Section 6A(3) of the Citizenship Act is unconstitutional on the ground of temporal unreasonableness?
The Court reiterated that one of the settled principles of judicial review is that an enactment which was reasonable and valid at the time of enactment, may become arbitrary over time.
The Court explained that temporal unreasonableness means that a classification which was reasonable when the law was enacted has become unreasonable over the course of time. Due to the change in circumstances with time, the classification may no longer have a reasonable nexus with the object sought to be achieved.
The Court highlighted that principle of temporal unreasonableness cannot be applied to a situation where the classification is still relevant to the objective of the provision. The process of detection and conferring citizenship in Assam is a long-drawn out process spanning many decades. To strike it down due to lapse of time is to ignore the context and object of the provision.
Thus, the Court held that Section 6A(3) cannot be held unconstitutional on the ground of temporal unreasonableness.
6. Whether Section 6A(2) of the Citizenship Act is unconstitutional on the ground that it neither provides a method for implementation nor empowers the executive to implement the provisions?
The Court noted that Section 6A is a substantive provision conferring citizenship on persons who migrated from Bangladesh to Assam. The provision provides that persons who migrated from Bangladesh to Assam before 1-01-1966 shall be deemed to be citizens of India from 1-01-1966. The Court reiterated that the import of the use of the legal fiction is that the law assumes a fact that does not exist and said that the provisions of the Citizenship Act do not require every person to register to acquire citizenship. Sections 5 and 6 of the Citizenship Act provide for acquiring citizenship through registration and naturalisation. These two provisions require the applicant to follow the process of application. However, Sections 3 and 4 of the Act do not require registration for acquiring citizenship. Thus, registration is not the de-facto model of securing citizenship in India. The use of the deeming fiction obviates the need for registration. The provision does not contemplate a registration regime for persons who fall under this category, similar to Sections 3 and 4 of the Citizenship Act.
The Court held that Section 6A(2) cannot be held unconstitutional for not prescribing a procedure for registration.
[Section 6A of the Citizenship Act 1955, In Re, 2024 SCC OnLine SC 2880, decided on 17-10-2024]
*Judgment Authored by: Chief Justice DY Chandrachud and Justice Surya Kant