The Supreme Court on Thursday upheld the constitutional validity of Section 6A of the Citizenship Act, 1955.

The judgement by a bench of Chief Justice DY Chandrachud and Justices Surya Kant, MM Sundresh, JB Pardiwala and Manoj Misra came on petitions seeking that Section 6A of the Act be declared as unconstitutional. The court had reserved its verdict in the matter in December.

Pardiwala, in a dissenting judgement, held the provision to be unconstitutional with prospective effect.

Section 6A was introduced as a special provision under the Act when the Assam Accord was signed between the Centre and leaders of the Assam Movement in 1985. It allows foreigners who came to Assam between January 1, 1966, and March 25, 1971, to seek Indian citizenship.

Indigenous groups in the state have alleged that this provision in the 1955 Citizenship Act has legalised infiltration by migrants from Bangladesh.

Chandrachud, in his judgement, said that the Assam Accord was a political solution to the problem of illegal migration, while introducing Section 6A was the legislative solution.

The judges in the 4:1 majority verdict observed that Section 6A was enacted to strike a balance between the humanitarian concerns at the time and the need to protect the local population. They held that Parliament had the legislative competence to enact the provision.

The chief justice said that the mere presence of several ethnic groups in a state does not mean that the fundamental right to protect the linguistic and cultural heritage had been infringed upon. The petitioners must prove that an ethnic group was unable to protect its identity because of the presence of another community, the court said, according to Live Law.

The court also ruled that the March 25, 1971, cut-off date was rational as it was the day when the Bangladesh liberation war ended. The objective of the provision must be viewed keeping in mind the war, it added.

Dissenting verdict

Pardiwala said that the reasoning for his dissenting opinion is that while the legislation may be valid at the time of enactment, it had become flawed with the passing of time.

“Section 6A has acquired unconstitutionality with the efflux of time,” said Pardiwala, according to whom the provision has “solely contributed to the influx of illegal immigrants into Assam” in addition to placing the burden of identifying and deporting undocumented migrants entirely on the state.

“Section 6A in the absence of any temporal limit to its application, with the efflux of time, is counter-serving the object with which it was enacted,” Pardiwala said. “The mechanism does not permit a immigrant of 1966-1971 stream to voluntarily seek citizenship and such an immigrant has to wait indefinitely for a reference to be made to the foreigner’s tribunal.”

Moreover, as there is no specified date for availing citizenship benefits as per Section 6A(3), “the object of expeditious deletion of immigrants from the electoral roll is not met”, Pardiwala pointed out.

Pardiwala said that Section 6 was enacted as a recognition of a political settlement, and that it was important to keep in mind “the intention of parties while signing the Assam Accord”.

He said that citizenship could have been conferred on anyone who entered Assam 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.”

The dissenting judge also said that Section 6A is not aligned with Article 6 (rights of citizenship of persons who have migrated to India from Pakistan) and Article 7 (rights of citizenship of certain migrants to Pakistan) of the Constitution, which place the onus of registration on the migrant. Section 6A, however, places this responsibility on the state.

Hearings

During the hearings last year, Advocate Shyam Divan, representing the petitioners, had argued that the provision had caused a “demographic invasion” in Assam with implications for the state’s culture, economy, politics and society.

In response, the bench had sought official data on the number of people who have benefited from the provision.

Chandrachud had questioned whether the demographic and cultural identity of Assam had been altered by granting citizenship to immigrants who entered the state between 1966 and 1971.

Solicitor General Tushar Mehta had told the court that approximately 5.4 lakh individuals had benefited from Section 6A of the Act. The official data will be submitted before the court soon, he had said at the time.

The chief justice had observed verbally at the time that Section 6A of the Citizenship Act had been enacted in 1985 on humanitarian grounds after the liberation of Bangladesh and is deeply embedded in India’s history. The provision cannot be equated with the amnesty granted to “illegal immigrants”, Chandrachud had said.

The chief justice had emphasised the historical context in which Section 6A was introduced.

“We can’t deny that 6A was enacted at a point which is deeply connected to our history,” he said, adding that India played a vital role in the Bangladesh Liberation War of 1971. “Parliament seems to have proceeded on the basis that the immigration which took place cannot be regarded purely as illegal but it was something humanitarian...on the aspect of the atrocities committed on the population of the then East Pakistan.”

The government must be given leeway to deal with problems in states affected by insurgency and violence, the Supreme Court had said.