The Supreme Court on Thursday upheld by a majority of 4:1 the constitutional validity of Section 6A of the Citizenship Act, which was incorporated in furtherance to the August 15, 1985, Assam accord to grant citizenship to immigrants from Bangladesh who crossed into India between January 1, 1966, and March 24, 1971.

The Assam accord was signed between the central government, the Assam government, the All-Assam Students Union (AASU), and the All Assam Gana Sangram Parishad in New Delhi on August 15, 1985.

Chief Justice DY Chandrachud, Justice Surya Kant (speaking for himself), Justice MM Sundresh, and Justice Manoj Misra upheld the constitutionality of Section 6A.

However, in a dissenting judgment, Justice JB Pardiwala ruled that “Section 6A of the Citizenship Act deserves to be declared invalid with prospective effect and the same is accordingly declared so.”

Justice Surya Kant, speaking for himself, Justice MM Sundresh, and Justice Manoj Misra, while holding that Section 6A of the Citizenship Act, 1955, falls within the bounds of the Constitution and is a valid piece of legislation, said, “As a necessary corollary thereto, (i) immigrants who entered the State of Assam before 1966 are deemed citizens; (ii) immigrants who entered between the cut-off dates of 01.01.1966 and 25.03.1971 can seek citizenship subject to the eligibility conditions prescribed in Section 6A (3); and (iii) immigrants who entered the State of Assam on or after 25.03.1971 are not entitled to the protection conferred vide Section 6A and consequently are declared to be illegal immigrants.”

Having said this, Justice Surya Kant said in his judgment that Section 6A has accordingly become redundant qua those immigrants who entered Assam on or after March 25, 1971.

Speaking for himself, Chief Justice DY Chandrachud, while upholding the constitutional validity of Section 6A, said that it satisfies the two-pronged reasonable classification test — The legislative objective of Section 6A was to balance the humanitarian needs of migrants of Indian origin with the impact of migration on the economic and cultural needs of Indian States. The two yardsticks employed in Section 6A — i.e. migration to Assam and the cut-off date of 24 March 1971 — are reasonable.

Noting that although other states share a greater border with Bangladesh, Chief Justice Chandrachud said, “The impact of migration in Assam, in terms of numbers and resources, is greater. Thus, the yardstick of migration to Assam is reasonable. The cut-off date of 25 March 1971, is reasonable because the Pakistani Army launched Operation Searchlight to curb the Bangladesh nationalist movement in then East Pakistan on 26 March 1971. Migrants before the operation were considered migrants of the Indian partition.”

Noting that undocumented migrants could be registered as citizens under Section 5(1)(a) of the Citizenship Act before it was amended by the Citizenship (Amendment) Act 2003 to exclude ‘illegal immigrants’, Chief Justice Chandrachud said, “Thus, the claim of the petitioner that Section 6A is unconstitutional — because it incentivises migrants in other states to come to Assam to secure citizenship through Section 6A instead of preventing migration to Assam — is erroneous.”

Chief Justice Chandrachud ruled that Section 6A(3) cannot be held unconstitutional on the grounds of temporal unreasonableness.

Brushing aside the petitioners’ arguments that Section 6A of the Citizenship Act is hit by Article 29 of the Constitution as the large presence of immigrants from Bangladesh has led to an erosion of their culture, Chief Justice Chandrachud said in his judgment, “Section 6A does not violate Article 29(1) of the Constitution. Article 29(1) guarantees the right to take steps to protect the culture, language, and script of a section of citizens. The petitioners have been unable to prove that the ability of the Assamese to take steps to protect their culture is violated by the provisions of Section 6A.”

Agreeing with Chief Justice Chandrachud, Justice Surya Kant, speaking for himself, Justice MM Sundresh and Justice Manoj Misra said that the changes in Assam’s religious and linguistic demographics by themselves are not ‘culture’ within the meaning of Article 29(1). Justice Surya Kant said, “Although significant changes to the demographics of a region can affect the interests of its original inhabitants, the ‘culture’ of a region by itself is a far more complex and dynamic phenomenon—involving an interplay of various competing forces and interconnected elements.”

In a note of caution, Justice Surya Kant said, “Though we are not oblivious to the petitioners’ demographic anxiety, we must be cautious of the impact our findings would have on the greater national landscape. Accepting the petitioners’ assertion that a mere change in demographics is sufficiently actionable evidence of erosion of rights under Article 29(1) would have far-reaching consequences.

“We say this because it would undermine the idea of ‘fraternity envisaged by our constitutional drafters’,” Justice Surya Kant said. “It would also open the floodgates for similar challenges by residents of other states who might seek to undermine Article 19(1)(e) rights and inter-state migration under the guise of protecting their indigenous culture under Article 29(1).

Article 19(1)(e) provides for the right to reside and settle in any part of the territory of India.

Justice Surya Kant further said, “The Constitution of India, and indeed this court as well, does not envision India as a union of endogamous-homogenous territories. The cascading ramifications of accepting the petitioners’ stand on federalism and national harmony would be significant, deleterious, and not improbable.”

Putting the onus of getting registered with the concerned authority within the prescribed time limit, Justice Pardiwala, in his dissenting judgment, said, “The immigrants who migrated between 01.01.1966 and 24.03.1971 (both dates inclusive) and who have been detected as foreigners but have not registered themselves with the registering authority within the prescribed time limit as per the Citizenship Rules, 2009, will no longer be eligible for the benefit of citizenship.”

In the case of immigrants whose applications are pending before the Foreigners Tribunal, or any other adjudicating authority, Justice Pardiwala said they will continue to be governed by Section 6A (3) as it stood immediately prior to the pronouncement of this judgment, till their appeals are disposed of.

Differing with Justice Surya Kant for saying that, by virtue of Article 19(1)(e), Section 6A does not compel pre-1971 immigrants to keep residing in the territory of Assam once they have obtained citizenship thereunder, Justice Pardiwala said, “While the aforesaid may be true for the immigrants belonging to the pre-1966 stream who were conferred citizenship automatically, from the date of commencement of Section 6A, the same does not hold true for the immigrants belonging to the 1966-71 category.”

Justice Pardiwala said, “…, because, in the absence of any temporal limit, within which all immigrants belonging to the 1966-71 category are to be detected, deleted, and registered as citizens, the immigrants of this category are tethered to the territory of Assam, to satisfy the criteria of ‘ordinarily resident in Assam’ on the date when they eventually happen to get detected.”

Justice Pardiwala said, “In my view, although the mandate of timely detection and deportation of illegal immigrants was the fundamental premise on which the Assam Accord was signed, yet, this intention recorded in the Accord, was never translated statutorily, due to a faulty mechanism prescribed under Section 6A(3), either due to inadvertence or advertence of the legislature.”