A Constitution Bench of the Supreme Court, in a 4:1 majority judgement on Thursday, upheld the Constitutionality of Section 6A of the Citizenship Act, 1955, which permits immigrants from Bangladesh residing in Assam to secure Indian citizenship. The court held it as a valid piece of legislation aligned to the preambular value of fraternity. The principle of fraternity cannot be selectively applied to one section living in Assam while another lot are labelled "illegal immigrants", Justice Surya Kant, who authored the lead opinion for the five judge Bench, observed.
"Our reading of the Constitution and precedents is that fraternity requires people of different backgrounds and social circumstances to 'live and let live'... When faced with dilemma of disenfranchising millions or safeguarding a community's endogamous way of life, this court would certainly be compelled by the principles of fraternity to prioritise the former,"he observed.
Section 6A, which traces its root to the political solituon of Assam Accord of 1985, mandates that immigrants who entered Assam from Bangladesh prior to January 1, 1966, would be deemed to be Indian citizens. Those who entered the State between January 1, 1966, and March 25, 1971, would be conferred citizenship based on the fulfilment of specific procedures and conditions. The Section. however barred citizenship to those who entered Assam after March 25, 1971.
'Migration a burden'
Justice Kant, in his opinion shared with Justices M.M. Sundresh and Manoj Misra, however said incessant migration from Bangladesh was indeed a burden on Assam.
But the blame for it could not be attributed to Section 6A alone. A large part of the fault lay with government's failure to timely detect and deport the post-1971 immigrants from Bangladesh, he said.
SC upholds Section 6A of Citizenship Act
The Court found the statutory machinery and Tribunals tasked with the identification and detection of illegal immigrants or foreigners in Assam inadequate and disproportionate to the requirement of giving time-bound effect to the legislative object of Section 6A read with the Immigrants (Expulsion from 185 Assam) Act, 1950, the Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, the Passport Act, 1967.
"The implementation of immigration and citizenship legislation cannot be left to the mere wish and discretion of the authorities, necessitating constant monitoring by this court," Justice Kant highlighted. The Constitution Bench directed the issue to be placed before the Chief Justice of India for constituting a Bench to monitor the implementation of these laws in question in Assam.
A balancing Act
Chief Justice of India D.Y Chandrachud, in a separate opinion backing Justice Kant, said Section 6A was Parliament's balancing act between its humanitarian view towards immigrants from Bangladesh and the impact of the huge influx on Assam's economic and cultural resources.
The Chief Justice agreed that the cut-off date of March 25, 1971 was reasonable. He reminded that the Pakistani Army had lauched Operation Seachlight to curb the Bengali nationalist movement in East Pakistan on March 26, 1971. The immigrants from bangladesh who entered India before the cut-off date were victims of the partition towards whom India had a liberal policy, while those who came after the date were taken in as refugees of the war.
The majority on the Bench held that Section 6A did not violate citizenship provisions of Article 6 and 7 of the Constitution. The Articles prescribed a cut-off date for conferring citizenship for migrants from East and West Pakistan at the "Commencement of the Constitution", that is January 26, 1950, and Section 6A operated from much later time and date.
The court was hearing petitions filed by NGOs like Assam Public Works and the Assam Sanmilita Mahasangha, which condemned Section 6A for the juge inflow of illegal immigration, which was putting an incredible strain on the State's economic and developmental goals, besides causing demographic changes. The NGOs said the provision was a threat to the Assamese people's right to protect and conserve their political, linguistic and cultural rights. They urged the apex court to declare Section 6A discriminatory, arbitrary, and illegal.
Justice J.B. Pardiwala, in his lone dissenting opinion, declared Section 6A unconstitutional with prospective effect. Chief Justice Chandrachud dismissed the notion that the mere presence of different ethnic groups in a State would infringe the right to conserve the language and culture of one group.
"Section 6A does not violate Article 29(1) of the Constitution. Article 29(1) guarantees the right to take steps to protect the culture, language and script of a section of citizens. The petitioners have been unable to prove that the ability of the Assamese people to take steps to protect their culture is violated by the provisions of Section 6A... The cultural and linguistic interests of the citizens of Assam are protected by constitutional and statutory provisions," the CJI noted.
Justice Kant argued that sustainable development and population growth in a State could coexist harmoniously and need not be mutually exclusive. The judge warned that allowing the petitioners' argument that influx of immigrants affected the local people's right to sustainable development may even result in curbs on domestic inter-State movement.
"A nation can accomodate immigrants and refugees, while simultaneously prioritising sustainable development and equitable alocation of resources," he observed.
'Section 6A will let immigrants stay in Assam indefinitely'
Justice J.B. Pardiwala, the lone dissenting judge on the Supreme Court's Constitution Bnech, on thursday, argued that Section 6A of Citizenship Act, 1955, incentivises undocumented immigrants from Bangladesh to stay in Assam indefinitely until they are detected.
Justice Pardiwala referred to how Section 6A (3) mandated that for migrants to register as citizens, they must first be detected as foreigners. However, the mechanism in Section 6A did not provide for self-declaration or voluntary detection as a foreigner. The process of detection could only be set in motion by the State. The judge concluded that this was a clear departure fromm the scheme of the citizenship Act and Articles 6 and 7 of the Constitution which allows acquiring citizenship through registration.
"Thus, an immigrant whose name figures on 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", he wrote. Placing the onus on the State to detect a foreigner coupled with the absence of temporal limite allows immigrants to continue to be on the electoral rolls and enjoy being de facto citzens, he reasoned.
In his dissent, the judge ordered that Section 6A and its benefits should not apply to immigrants in Assan from the date of this judgement.
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.
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