Case: In Re Section 6A of The Citizenship Act

BENCH: Chief Justice D.Y. Chandrachud, Justice Surya Kant, Justice M.M. Sundresh, Justice J.B. Pardiwala, Justice Manoj Misra

MAJORITY: 4:1

DISSENT: Justice J.B. Pardiwala

Introduction:

The National Register of Citizens (NRC) is a list of Indian citizens that aims to accurately identify all Indian citizens and exclude illegal immigrants. While the NRC was first formulated following the 1951 national census, the state of Assam is the only state in India to update and implement the NRC exercise, aiming to identify illegal immigrants from Bangladesh who entered Assam after March 24, 1971. This issue has been at the forefront of legal and political debates, particularly following the Assam Movement, which opposed the influx of undocumented immigrants into Assam. The matter has now reached the Supreme Court, where the constitutional validity of Section 6A of the Citizenship Act, 1955, which governs the NRC process in Assam, has been debated.

Facts of the Case:

1. The Assam Movement: The Assam Movement, led by the All Assam Students Union (AASU) and the All Assam Gana Sangram Parishad, protested the influx of illegal immigrants, primarily from Bangladesh, and its adverse effects on employment and resources in Assam. The movement resulted in the signing of the Assam Accord in 1985, which set out the guidelines for determining who could be considered an Indian citizen.

2. The Assam Accord and Section 6A: The Assam Accord categorizes immigrants into three categories:

• • Immigrants before January 1, 1966, are considered Indian citizens and allowed to vote.
• • Immigrants between January 1, 1966, and March 24, 1971, are granted Indian citizenship, but are not allowed to vote for 10 years after being identified as Indian citizens.
• • Immigrants after March 24, 1971, are considered illegal and are to be expelled.

Section 6A of the Citizenship Act, 1955, was inserted to give effect to the Assam Accord, governing the process of recognizing citizens and expelling illegal immigrants in Assam.

3. NRC Update Process: The Supreme Court, in 2013, directed the State of Assam to update the NRC. The process was monitored by a 2-Judge Bench led by CJI Ranjan Gogoi and Justice Rohinton Nariman. On July 21, 2015, the case was referred to a 5-Judge Constitution Bench to address several legal questions.

4. Draft and Final NRC:

• • On July 30, 2018, the final draft of the NRC was released, excluding 40.07 lakh out of 3.29 crores applicants. This led to uncertainty about their citizenship status.
• • On August 31, 2019, the final NRC list was released, excluding 19 lakh people. Among them were several prominent individuals, including family members of former President Fakhruddin Ali Ahmed.
• • On January 6, 2020, the Attorney General clarified that children whose parents were granted citizenship would not be separated.

5. Legal Developments: The legal validity of Section 6A of the Citizenship Act has been challenged, with arguments focusing on whether the provision continues to be relevant given the passage of time. The Supreme Court referred the matter to a 5-Judge Constitution Bench, which began hearings in 2023. On December 12, 2023, the bench reserved its judgment after four days of hearings.

6. Judgment: On October 17, 2024, the Supreme Court upheld the constitutionality of Section 6A of the Citizenship Act, 1955, in a 4:1 majority judgment. Justice Pardiwala was the sole dissent, arguing that the provision was unconstitutional due to the passage of time and changing circumstances.

Issues:

1. Whether Section 6A of the Citizenship Act, 1955, which governs the NRC process in Assam, is constitutionally valid?

2. Whether the Assam NRC process, as conducted under the provisions of Section 6A, is in compliance with the principles of natural justice and constitutional guarantees?

3. Whether the exclusion of 19 lakh individuals from the final NRC list is in line with the legal framework and constitutional rights of citizens?

4. Whether the provision of categorizing migrants into three groups under the Assam Accord continues to serve its purpose, considering the passage of time?

5. Whether the exclusion of persons and families from the NRC based on outdated or delayed documentation impacts their fundamental rights, including the right to life and personal liberty?

Observations:

In his judgment, CJI D.Y. Chandrachud emphasized that the Assam Accord was a political solution to the issue of illegal migration, while Section 6A of the Citizenship Act, 1955, provided the legislative solution. The majority of the Bench upheld the constitutionality of Section 6A, asserting that Parliament possessed the legislative competence to enact the provision. The majority also pointed out that Section 6A was introduced to balance the need to address humanitarian concerns with the need to protect the local population from the adverse effects of illegal immigration.

The majority opinion also addressed the question of whether Assam had been unfairly singled out in comparison to other border states with Bangladesh. The Court held that this differentiation was rational, noting that the percentage of immigrants among Assam's local population was higher than in other bordering states. The impact of migration on Assam was considered to be much greater, given that Assam has a smaller land area compared to states like West Bengal, despite a similar number of migrants. Thus, the decision to focus on Assam was justified by the unique socio-political dynamics in the region.

The majority also affirmed the rationality of the cut-off date of March 25, 1971, the day when Pakistan launched Operation Searchlight against Bangladesh during the Liberation War. This date, according to the Court, had a significant historical context as it marked the beginning of large-scale migration from East Pakistan (Bangladesh) to India. The majority viewed the cut-off date as a reasonable line of demarcation between legal and illegal migration, given the backdrop of the Bangladesh War and the humanitarian crisis that followed.

CJI Chandrachud further observed that the presence of different ethnic groups within a state does not automatically infringe upon the right to protect linguistic and cultural heritage under Article 29(1) of the Constitution. The petitioners would have to prove that one ethnic group’s ability to protect its language and culture is negatively impacted solely due to the presence of another ethnic group. Therefore, the mere presence of immigrants or different ethnic groups did not, in and of itself, violate the constitutional rights of the local population.

Justice Kant emphasized the need for enforcing the directions issued in the Sarbanda Sonowal judgment regarding the detection and deportation of illegal migrants. He highlighted that the statutory machinery and tribunals tasked with identifying illegal migrants were inadequate and lacked proportionality to effectively implement the objectives of Section 6A. Justice Kant stressed that the identification and deportation process should not be left to the discretion of executive authorities but should be monitored by the Supreme Court to ensure time-bound and effective implementation. The Court directed the Ministry of Home Affairs to provide detailed data on illegal migration to Assam, including the inflow of migrants post-March 25, 1971, and other related disclosures.

Justice Pardiwala's Dissent: Justice Pardiwala dissented from the majority opinion, arguing that while Section 6A might have been valid at the time of enactment, it had become unconstitutional over time due to changes in circumstances. He criticized the cut-off date of January 1, 1966, which, according to Hon’ble Justice Pardiwala, was set to pacify local protests, and suggested that this measure was more about political compromise than addressing the core issue of illegal migration. He opined that the law, which created a temporary statutory category for those entering between 1966 and 1971, was never solely about granting citizenship but rather about addressing political concerns, particularly with regard to upcoming elections in Assam.

Justice Pardiwala ultimately declared Section 6A to be unconstitutional due to the passage of time, though he suggested that any such declaration would take effect prospectively, acknowledging the need for a nuanced approach that takes into account changing circumstances and the evolving nature of the migration issue in Assam.

Implication:

1. Impact on Citizenship and Legal Status: The judgment has far-reaching implications for the citizenship status of individuals in Assam, particularly those excluded from the NRC list. These individuals may now face the challenge of proving their citizenship status in various legal forums.

2. Legal Precedent: The judgment reinforces the validity of Section 6A of the Citizenship Act, cementing its role in the identification and expulsion of illegal immigrants in Assam. It also sets a legal precedent regarding the application of provisions specific to a region (Assam) to address local issues such as migration.

3. Political and Social Impact: The ruling has significant political implications, particularly in Assam, where the NRC has been a source of protest and division. It may lead to further debates about the nature of Indian citizenship and the rights of minorities, especially in relation to migrants from neighbouring countries.

4. Human Rights Concerns: The case raises important concerns about the protection of fundamental rights, especially for those excluded from the NRC, as they may face a lengthy legal battle to prove their citizenship. This may lead to questions about the adequacy of existing mechanisms for protecting the rights of such individuals, including access to legal remedies and detention centres.