[Citizenship Act] ‘4:1 Majority Verdict’: SC Upholds Constitutionality of Section 6A Recognising Assam Accord

The Supreme Court Today (Oct 17) upheld the validity of a key citizenship rule that recognised the Assam Accord, granting citizenship to Bangladeshi refugees who had come to the state before 1971. Section 6A of the Citizenship Act was introduced in 1985 to allow refugees from Bangladesh (then East Pakistan), who entered India between 1966-1971, to register as Indian citizens. A 5-judge constitutional bench led by Chief Justice of India DY Chandrachud upheld Section 6A by a 4:1 majority with Justice JB Pardiwala dissenting. The bench also comprised Justices Surya Kant, MM Sundresh and Manoj Misra.

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NEW DELHI: In a landmark ruling, the Supreme Court of India, by a 4:1 majority, upheld the constitutional validity of Section 6A of the Citizenship Act, 1955. This section provides citizenship to immigrants who entered Assam between January 1, 1966, and March 25, 1971.

Chief Justice of India (CJI) DY Chandrachud, along with three other justices Justices Surya Kant, MM Sundresh, and Manoj Misra, affirmed the validity of this provision, while Justice Pardiwala expressed a dissenting opinion.

Justice Pardiwala gave a dissenting judgment to hold Section 6A as unconstitutional.

CJI DY Chandrachud clarified that the Assam Accord, which played a pivotal role in addressing illegal immigration issues following the creation of Bangladesh, was a political solution.

He emphasized that-

“Section 6A was the legislative solution”

to this complex problem. The majority decision also asserted that Parliament possessed the necessary legislative competence to enact this provision.

The bench further remarked,

“Therefore, it cannot be likened to an amnesty scheme for illegal immigrants in general.”

This clarification underscores the fact that Section 6A was specifically designed for a particular historical context and cannot be applied broadly to other situations involving illegal immigration.

“The central government could have extended the act to other areas as well, but did not do so because it was unique to Assam. The number of migrants coming to Assam and their impact on culture etc. is higher in Assam. The impact of 40 lakh migrants in Assam is more than that of 57 lakh in West Bengal because the land area in Assam is less than that of West Bengal,”

-the Chief Justice added.

In delivering the majority judgment, Justice Kant emphasized a fundamental principle, stating,

“We cannot allow one to choose their neighbours and it runs against their principle of fraternity. The principle is live and let live.”

This statement reflects the core values of societal coexistence and mutual respect, underscoring that individuals cannot dictate who they live alongside, which would contradict the spirit of fraternity and peaceful coexistence.

Justice Kant further addressed the argument regarding the alleged arbitrariness of Section 6A, stating,

“We have also turned down the submission that Section 6A suffers from manifest arbitrariness. The cut-off date (March 25, 1971) prescribed also does not suffer from manifest arbitrariness. There are legible delineated conditions for migrants who came before 1966 and after 1966 and before 1971.”

In doing so, the judgment reaffirmed that the provision has clearly defined criteria for determining citizenship eligibility based on the date of entry, and this framework is neither arbitrary nor unclear.

Addressing concerns about the term “ordinarily resident in Assam” as used in Section 6A, Justice Kant clarified that no immigrant had challenged it as vague or arbitrary. He added,

“On Article 29, we have held that petitioners have failed to show that there is a grave impact on Assamese culture, language… petitioners have not been able to show constitutionally valid impact on their culture due to the presence of any other group. We cannot accept that the Assamese right to vote has been impacted at all…”

This observation highlights that the petitioners were unable to provide concrete evidence showing that the influx of migrants significantly affected Assamese cultural identity or political rights.

Summing up the legal status of immigrants under Section 6A, Justice Kant outlined:

• Immigrants who entered Assam before January 1, 1966 are deemed to be Indian citizens.

• Immigrants who entered Assam between January 1, 1966, and March 25, 1971, can seek citizenship, subject to eligibility conditions prescribed under Section 6A.

• Immigrants who entered Assam on or after March 25, 1971, are not entitled to protection under Section 6A and consequently, they are declared illegal immigrants.

The decision in this case is set to have significant implications on the Assam National Register of Citizens (NRC), a vital document for determining citizenship in the state. The ruling is expected to shape the future of the NRC, especially in the context of historical immigration issues.

During the case hearings, the Supreme Court had noted that Section 6A was introduced in part to address the atrocities committed on the population of East Bengal following the 1971 Bangladesh Liberation War. The Bench had orally remarked that

“Therefore, it cannot be likened to an amnesty scheme for illegal immigrants in general.”

This crucial clarification underscores the unique historical context in which Section 6A was framed, distinguishing it from any general leniency towards illegal immigration.

The Chief Justice of India (CJI) had previously commented that the validity of Section 6A cannot be judged based on political developments that occurred after its enactment. This perspective emphasizes the legal and constitutional framework underpinning the provision rather than contemporary political considerations.

Moreover, the Union Home Ministry informed the Court that it could not provide precise data on the full scale of illegal migration, as such movements occur in a clandestine manner. However, it revealed in an affidavit that between 2017 and 2022, 14,346 foreign nationals were deported, and 17,861 migrants who entered Assam between January 1966 and March 1971 were granted Indian citizenship.

This Supreme Court ruling solidifies the legal standing of Section 6A and clarifies its specific provisions, establishing a clear distinction between migrants who qualify for citizenship under its framework and those who do not. The judgment not only addresses the historical immigration issues in Assam but also shapes the future of how the state deals with its immigrant population within the context of the Assam Accord and the NRC.

Additionally, the Union Home Ministry submitted an affidavit revealing that 17,861 migrants, who had entered Assam between January 1966 and March 1971, were subsequently granted citizenship under the provisions of Section 6A. This figure highlights the specific group of individuals impacted by the law.

Enforcement of directives to identify illegal migrants is necessary.

Justice Kant emphasized that the directives outlined in the Sarbananda Sonowal judgment regarding the detection and deportation of illegal migrants must be enforced. He noted that the existing statutory mechanisms, such as the Tribunals responsible for identifying illegal migrants, are insufficient and not equipped to meet the legislative goals of Section 6A of the Citizenship Act, the Foreigners Act, the Foreigners Tribunals Order, and the Passport Act in a timely manner. Justice Kant stressed that the enforcement of these provisions should not be left solely to the discretion of executive authorities, requiring continuous oversight by the Supreme Court. To ensure this, the matter was referred to a special bench to monitor the implementation of these directives.

During the proceedings, the Court directed the Ministry of Home Affairs to provide data on the influx of illegal migrants into Assam and other northeastern states after March 25, 1971 (following Bangladesh’s independence). This included data on citizenship grants to immigrants during various periods, the functioning of the Foreigners Tribunals, and related issues.

What Is Section 6A of the Citizenship Act, 1955?

Section 6A, introduced in 1985 after the Assam Accord, allows migrants of Indian origin who entered Assam between January 1, 1966, and March 25, 1971, to apply for Indian citizenship. The Assam Accord was an agreement between the Government of India and Assam leaders who sought the removal of illegal migrants from Bangladesh. The cut-off date of March 25, 1971, marks the end of the Bangladesh liberation war.

However, some indigenous groups in Assam have challenged this provision, arguing that it legitimizes the illegal entry of migrants from Bangladesh.

Key Arguments Raised by Petitioners

• Section 6A contradicts the core values of the Constitution, such as fraternity, citizenship, and national unity.
• It infringes on fundamental rights under Articles 14, 21, and 29.
• It violates citizens’ political rights under Articles 325 and 326.
• It exceeds the scope of legislative authority and conflicts with the constitutional “cut-off line.”
• It undermines democracy, federalism, and the rule of law, which are integral to India’s constitutional framework.

Petitioners’ Requests

• Declare Section 6A unconstitutional for violating Articles 14, 21, and 29.
• Invalidate Rule 4A of the 2003 Rules and the notification from December 5, 2013, as inconsistent with Section 6A.
• Alternatively, direct the Union government to create a national policy, in consultation with the States and Union Territories, for the equitable distribution and resettlement of immigrants who arrived in Assam after January 6, 1951.
• Order the Union to complete border fencing and take action for the identification, detection, and deportation of illegal migrants from Assam.
• Instruct the Union to remove encroachers from protected tribal lands under Assam’s land regulations.

Counsel who argued for petitions against Section 6A

Senior Advocate Shyam Divan with Advocate Somiran Sharma appeared for the All Assam Ahom Association.

Senior Advocate KN Choudhury appeared for the Assam Sanmilita Mahasangha.

Senior Advocate Vijay Hansaria appeared for one Pranab Mazumdar.

Counsel who argued for parties in favour of Section 6A

Attorney General R Venkataramani, Solicitor General Tushar Mehta and Advocate Sneha Kalita appeared for the Union government, and Advocate Shuvodeep Roy appeared for the State of Assam.

Senior Advocate Malvika Trivedi appeared for the All Assam Students’ Union.

Senior Advocate Sanjay R Hegde with Advocate Adeel Ahmed appeared for the Assam Sankhyalaghu Sangram Parishad.

Senior Advocate Salman Khurshid appearing for the Assam Jamiat Ulema.

Senior Advocate CU Singh appeared for the Citizens for Justice and Peace.

Senior Advocate Shadan Farasat with Advocates Natasha Maheshwari, Prannv Dhawan, Hrishika Jain, Aman Naqvi, Abhishek Babbar, Mreganka Kukreja, Harshit Anand and Shadab Azhar appeared for the Social Justice Forum.

Senior Advocate Kapil Sibal appeared for the Jamiat Ulema-e-Hind.

Senior Advocate Indira Jaising with Advocate Paras Nath Singh appeared for the All Assam Minorities Students’ Union.

Other counsel

Advocate Sahil Tagotra appeared for the Election Commission of India.

This ruling by the Supreme Court reaffirms the constitutional validity of a crucial section of the Citizenship Act, while also emphasizing its historical and legislative significance.

The decision serves as a reminder that Section 6A was crafted as part of a nuanced response to a unique situation, offering a legislative framework rather than a blanket amnesty for illegal immigrants.

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