SC upholds contentious clause in Citizenship Act
Crucially, the top court underscored that Section 6A aligned with the framework provided by Articles 6 and 11 of the Constitution.
The Supreme Court on Thursday upheld the constitutional validity of a contentious clause in India’s citizenship law applicable only to Assam, in a landmark judgment that and underlined parliamentary supremacy over citizenship matters and potentially strengthened the Union government’s defence of the Citizenship (Amendment) Act, or CAA.
By a 4-1 majority, a five-judge Constitution bench of the top court affirmed Section 6A of the Citizenship Act that allowed people who entered Assam between January 1, 1966, and March 25, 1971, and who were residing in the state, to register as Indian citizens after a hiatus of 10 years. Those who came prior to January 1, 1966, were granted deemed citizenship.
The bench, led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, also flagged the problem of continued influx of immigrants into India as “serious”, and decided to set up a bench to monitor the implementation of its directions, underscoring the need to curb illegal movement of immigrants by fencing the porous borders with Bangladesh.
Justice Surya Kant wrote a concurring verdict for himself and justices MM Sundresh and Manoj Misra. CJI Chandrachud wrote a separate but concurring opinion. Justice JB Pardiwala dissented, holding that Section 6A was arbitrary and constitutionally invalid.
Section 6A is the lynchpin of the 1985 Assam Accord, a tripartite agreement between the Centre, state and student groups that drew the curtain on six years of violent protests in Assam over illegal immigration. A bunch of petitioners challenged this law, arguing that Parliament didn’t have the competence to define citizenship and that inscribing a cut-off date for citizenship specifically for Assam was unconstitutional.
CJI Chandrachud said in his judgment that Section 6A was not violative of Articles 6 and 7 of the Constitution, which stipulated a cut-off date for conferring citizenship to migrants from east and west Pakistan at the “commencement of the Constitution”.
“The 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,” he wrote.
“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,” he added.
Justice Kant, writing for himself and justices Sundresh and Misra, said that Section 6A fell within the bounds of the Constitution and did not contravene the foundational principles of fraternity. “It is held that Section 6A of the Citizenship Act, 1955 falls within the bounds of the Constitution and is a valid piece of legislation,” he said in the judgment.
Crucially, the top court underscored that Section 6A aligned with the framework provided by Articles 6 and 11 of the Constitution, which grant Parliament the power to legislate on citizenship matters. The CJI held that while Articles 6 and 7 conferred citizenship on people migrating from Pakistan, Article 11 gave Parliament broad authority to enact laws regarding citizenship. Justice Kant highlighted that the language of Article 11 fortified Parliament’s authority to legislate citizenship conditions even if they diverged from other constitutional provisions.
“The second important aspect of Article 11, which lends support to this conclusion, is that it grants the Parliament the power to make ‘any’ provision regarding citizenship,” noted justice Kant.
The verdict is likely to have far-reaching ramifications, not just in Assam, where citizenship is a volatile and emotive issue that has animated state politics for 50 years, but also across India.
Boost for CAAThe judgment could significantly reinforce the Union government’s defence of Section 6B under the Citizenship (Amendment) Act of 2019, which is presently pending challenge in the top court. The court’s decision that Parliament held the authority to enact citizenship laws with specific cut-off dates and targeted classifications, as it did with Section 6A, could be cited for creating provisions such as Section 6B of CAA, which facilitates expedited citizenship for non-Muslim refugees from Pakistan, Bangladesh and Afghanistan who arrived in India by December 31, 2014, due to religious persecution.
By validating the legislative power to modify citizenship conditions based on historical and contextual needs, the ruling lays a foundational precedent for the legal soundness of Section 6B in CAA.
Further, the apex court’s deference to legislative choices on citizenship might align with the Centre’s argument that CAA’s provisions are within Parliament’s purview to set differential standards when justified by context and purpose. In defending Section 6B, the government can draw on this judgment to argue that CAA’s classifications are based on sound policy choices rather than arbitrary distinctions.
Some organisations and political parties in Assam welcomed the decision, while others differed. “The SC in its order stated that there’s need to retain Section 6A, as stated in the Assam Accord. It will end the debate on what should be the deadline for determination of citizenship in the state. We welcome the verdict,” said Utpal Sarma, president of All Assam Students Union (AASU), which was one of the signatories of Assam Accord.
However, the verdict was termed as unfortunate by Asom Xanmilita Mahasangha, a group which had filed petition in SC seeking removal of Section 6A and use 1951 as the deadline for determination of citizenship in Assam. “Assam can’t be expected to take the load of illegal immigrants who entered the state between Independence and March 25, 1971, when Bangladesh was formed. We will continue our fight for justice,” Matiur Rahman of AXM said.
Senior Bharatiya Janata Party leader and Union minister Ravi Shankar Prasad hailed the verdict as “historic” and said that action will be taken against “large-scale” illegal immigration into Assam. “Today, the Supreme Court has delivered a very historic verdict on the constitutional validity of Section 6 A of the Citizenship Act. We welcome this judgement... all those who have come after [1971], surely they will be treated like illegal immigrants,” said Prasad.
Senior Congress leader Gaurav Gogoi on Thursday said he respected the decision. “The Assam Accord was historic accord which brought peace to the state after years of political agitation. During that period, the Prime Minister of India late Rajiv Gandhi would engage with the student leaders despite political differences. Today the scenario is different. BJP calls protestors anti-nationals and Khalistanis. Or like Manipur PM Modi pretends as if the state doesn’t exist,” Gogoi wrote on X.
Section 6A was included in the Citizenship Act, 1985 after the then Rajiv Gandhi government in 1985 signed an accord with the state government and the All Assam Students Union (AASU), then headed by Prafulla Kumar Mahanta, who later became chief minister of Assam twice.
The accord ended years of bloodshed over illegal immigration from Bangladesh and erstwhile east Pakistan into Assam. But a group of organisations challenged the provision, saying that it singled out Assam and demanded 1951 as the cut-off year for citizenship.
Illegal immigration The majority judgment said that Section 6A was not meant to give shelter to immigrants and it was due to the government’s failure. At the same time, the court said that immigration from Bangladesh continued unabated.
“The concerns of the petitioners regarding the burden on the resources of the state and on its demographic identity due the influx of illegal migrants in large numbers is not lost to the court and is a matter of serious concern…This underscores the necessity for more robust policy measures to curb illicit movements and enhance border regulation,” justice Kant’s majority opinion said.
The court held that giving room for migrants did not impact sustainable development of a state. “Sustainable development and population growth can coexist harmoniously and need not be mutually exclusive....A nation can accommodate immigrants and refugees, while simultaneously prioritising sustainable development and equitable allocation of resources.”
Noting the danger underlying the petitioners’ submission that migrants affect equitable distribution of resources, the bench held, “The logic underlying the petitioners’ argument, if allowed, can tomorrow be extended to seek controls on even domestic interstate movement. The challenge on the basis of sustainable development under Article 21 therefore, must be rejected.”
The court found that the implementation of immigration and citizenship legislation could not be left to the wish and discretion of authorities, and directed the matter to be placed before the CJI for constituting a bench.
Cut-off not arbitrary The court held that Section 6A “acknowledged the political and social realities of that period” and adopted a “practical solution” for the problem of incessant illegal immigration into Assam by devising an “implementable solution keeping in mind India’s commitments, international relations and administrative realities.”
The court rejected arguments that said Section 6A was violative of equality guaranteed under Article 14, right to life and sustainable development under Article 21, right of minorities under Article 29, and duty of the Centre to protect states from internal aggression under Article 355.
The court found the cut-off date to be reasonable and having rational nexus to the objective as the Pakistani Army launched Operation Searchlight to end the Bangladesh nationalist movement on March 26, 1971. Justice Kant’s opinion said that the cut-off served India’s humanitarian goal and administrative convenience. CJI Chandrachud said these migrants could be treated as migrants of the Indian Partition and could not be considered migrants of war.
“As a matter of constitutional principle, the mere presence of different ethnic groups in a state is not sufficient to infringe the right guaranteed by Article 29(1),” the CJI held.
Assam’s situation differentThe court said Assam presented a “unique” and “piquant” situation in terms of the magnitude and impact of immigration. Though other states such as West Bengal (2,216.7 km), Meghalaya (443 km), Tripura (856 km) and Mizoram (318 km) share a larger border with Bangladesh as compared to Assam (263 km), CJI Chandrachud said, “The magnitude of influx to Assam and its impact on the cultural and political rights of the Assamese and tribal populations is higher.”
The petitioners said that about 4 million immigrants were in Assam while West Bengal had 5.7 million. “Legislative objective of Section 6A was to balance the humanitarian needs of migrants of Indian origin and the impact of the migration on the economic and cultural needs of Indian states,” CJI added.
“Assam and the rest of India are distinguishable on the basis of the unique political situation created in Assam by the influx of immigrants. Section 6A duly considered the pertinent factors, notably that the Assam Accord pertained solely to the state of Assam...Hence, the classification between the state of Assam and other states had a direct nexus with the object of the statute,” justice Kant held.
No internal aggressionThe petitioners relied on a 2005 judgment where the top court flagged the problem of illegal Bangladeshi immigrants and compared it to internal aggression.
Article 355 casts a duty on the Union government to protect states against external aggression and internal disturbance; the petitioners sought to strike down Section 6A as being in violation of this Article.
But CJI Chandrachud said that Article 355 could not be elevated as an independent ground of judicial review as it had “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,” he wrote.
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