The Supreme Court Constitution Bench with a 4:1 majority okayed the constitutional validity of Section 6A of the Citizenship Act, 1955 that granted citizenship to migrants who entered Assam before 1971. Section 6A, a key provision, was a result of the 1985 Assam Accord that was signed between the Rajiv Gandhi government and the All Assam Students’ Union (AASU).
In 1985, the Citizenship (Amendment) Act 1985 was enacted to include Section 6A to the Citizenship Act. The provision grants citizenship to persons of Indian origin who migrated to Assam from Bangladesh. The provision classifies the class of migrants into two categories based on when they entered Assam: those who entered Assam before January 1, 1966 and those who came after this date, but before March 25, 1971.
The Assam Accord, signed after a six-year-long student-led agitation, granted citizenship to migrants who entered Assam before 1966, and allowed migrants entering the northeastern state between January 1, 1966 – March 25, 1971, to register for citizenship after a 10-year waiting period during which they would not get voting rights and declared all those who entered post-March 1971 as illegal immigrants.
Chief Justice of India DY Chandrachud, who penned one of the three opinions, observed the Assam Accord was a “political solution to the issue of the growing migration (in Assam)” while section 6A was a “legislative solution”. Singling out Assam and the cut-off date were both rational, the chief said.
Section 6A is one among the long list of legislation that balances the humanitarian needs of migrants of Indian origin and the impact of this migration on the economic and cultural needs of the Indian states, he added.
Section 6A must be seen in the context and backdrop of the Bangladesh War, the top court said while rationalising the cut-off date of March 25, 1971 when Pakistan launched the offensive against Bengali nationalist movement in what was then East Pakistan.
Justice Surya Kant, who wrote a separate but concurring opinion for himself, Justices MM Sundresh and Manoj Misra, observed section 6A was threadbare and the government was competent to implement measures to prevent its misuse.
Justice JB Pardiwala, the sole dissenter, said section 6A was a piece of legislation that was apt and valid for its time, but has now become temporarily flawed.
To conclude:
- Immigrants who entered Assam before January 1, 1966, are deemed to be citizens of India.
- Immigrants who entered Assam between January 1, 1966 – March 25, 1971, can seek citizenship if they fulfill the eligibility criteria.
- Immigrants who entered Assam on or after March 25, 1971, are deemed to be illegal immigrants and are liable to be detected, detained and deported
Problem in Assam is much severe: Supreme Court
The Supreme court also observed that immigration to Assam was unique in terms of the higher magnitude and impact as compared to the other border states in the region which shared a larger border with Bangladesh.
The impact of 40 lakh migrants in Assam is greater than the impact of 57 lakh migrants in West Bengal because of the state’s smaller population and land area, the court added.
“Thus, singling out of assam is based on a rational consideration,” CJI CHandrachud said.
Singling Out Assam, Cut-off date rational: CJI Chandrachud
The top court noted that the cut-off date of March 25, 1971, was “also rational” since it can be traced to the launch of Operation Searchlight by Pakistan, an event which also marked the onset of the Bangladesh Liberation War. Subsequently, on the very next day, on March 25, 1971, Bangladesh officially declared independence, the CJI said.
“The migrants before the launch of the operation were considered ‘migrants of partition’ towards which, India had a liberal policy, while migrants from Bangladesh after the said date were considered to be ‘migrants of war’ and not partition,” CJI Chandrachud said.
Provisions of Section 6A was to provide a long-term solution to the large influx of migrant population in Assam from Bangladesh. It is true, that dilution of voting rights was one of the causes of concern for the students’ agitation that culminated with the Assam Accord, Supreme Court said.
However, the objective behind the enactment of the 1985 Amendment to the Citizenship Act was to deal with the larger problem of Bangladeshi migrants of Indian origin would secure citizenship in India. The objective of the provision must be understood against the backdrop of Indian policy on post-partition migration, the court said.
Can’t restrict the principle of fraternity: Justice Surya Kant
Justice Surya Kant pointed out that those objecting to the inclusive nature of the provision wanted a “restrictive understanding” of the principle of fraternity which allows them to choose their neighbours. Rejecting this argument, Justice Kant said our reading of this principle means to “live and let live”.
Fraternity cannot be selectively applied in an unequal manner and must be uniform, he added.
However, Justice Kant observed that though the parliament was competent to deal with the issue of illegal migrants, there was inadequate enforcement of section 6A which was leading to widespread injustice. Statutory machinery and Tribunals tasked with the identification of illegal migrants were inadequate and disproportionate to the requirement of giving time-bound effect to the legislative objectives to laws that deal with citizenship.
Provision apt for its time, now unreasoable: Justice Pardiwala
Justice JB Pardiwala, the sole dissenter, said his line of reasoning proceeded on the footing that “a piece of legislation maybe valid at the time of enactment, but there could be a provision which by the efflux of time, may become temporally unreasonable.
"Section 6A has acquired unconstitutionality with the efflux of time. The efflux of time has brought to light the element of manifest arbitrariness in the scheme of Section 6A(3) which fails to provide a temporal limit to its applicability," he said.
Section 6A was enacted to give statutory effect to the political settlement arrived at in the form of the Assam Accord, Justice Pardiwala observed. The Accord was a result of years of negotiation that took place between the central government, the state government, and the agitating students, he added.