The Article is written by Saloni Agarwal from Bharati Vidyapeeth (Deemed to be University) New Law College, Pune. This is a case commentary which summarizes the judgment given by the Hon’ble Supreme Court in the matters of the constitutional validity of Section 6A of the Citizenship Amendment Act, 1985, and also mentions briefly the background that led to the addition of Section 6A.
Introduction
Citizenship is a status of a person where a person has legal right towards belonging of a particular nation. The word “Citizenship” is neither defined in any section of the Constitution nor in any other statute but the Supreme Court in the case of State Trading Corporation of India v. CTO[1], said that citizenship is a way through which a person gains a legal status and other socio-political rights in a country. Different countries have perceived the citizenship in diverse form. For example- in the United Kingdom, the British Nationality Act, 1981[2] created different classes of people: British Citizen, British Overseas Territories Citizen, British Overseas Citizen, British Subject, British National (Overseas), and British Protected Person. In India, there are several categories such as Normal Citizen, Overseas Citizen of India (OCI), Persons of Indian Origin (PIO) and Non-Residing Citizen of India (NRI). The Indian Constitution provides the provision of citizenship for different categories of people with different eligibility criteria which is given under Part II of Indian Constitution i.e Article 5-11. These articles talk about the eligibility criteria of people who wanted to have citizenship of India before the commencement of Indian Constitution i.e 26th January 1950. Article 11 gives power to parliament to make any laws related to criteria of citizenship criteria who came to India after the commencement of Indian Constitution i.e 26th January 1950 and hence, The Citizenship Act, 1955[3] was enacted which not only deals with acquisition of citizenship but also the renunciation, termination and deprivation of citizenship in Section 8, 9, 10 of the Act respectively.
Background of Assam Accord
In 1985, Central Government of India and bunch of student leaders from Assam i.e All Assam Student’s Union (AASU) & All Assam Gana Sangram Parishad (AAGSP) signed a Memorandum of Settlement to bring an end to Assam agitation or popularly known as Assam Movement. This protest was against the large influx of illegal immigrants that flew to Assam and rest of north-eastern states from Bangladesh. In 1979, the agitation which was initiated by AASU for which the primary demand was the identification and deportation of illegal immigrants. The culmination of the movement resulted into signing of Assam Accord which made it compulsory to deport anyone who enter into the boundaries of India after 25th March 1971.
Section 6A of Citizenship Act 1955 – Special Provisions as to Citizenship of the persons under Assam Accord
The addition Section 6A was due to Citizenship Amendment Act, 1985 pertaining to the special provisions in regards to the citizenship of persons covered by Assam Accord:
- Any individual of Indian Origin (PIO) who came to Assam from Bangladesh before 1st January, 1966 and have been residing in Assam since then will be considered to be citizen of India from January 1, 1966.
- Any individual of Indian descent who arrived in Assam from Bangladesh between January 1st, 1966 and March 25th, 1971 and has continuously lived in Assam since their arrival, must register themselves if identified as a foreigner. – Once registered, such individuals will be considered Indian citizens from the end of a ten-year period starting from the date of their identification as a foreigner.
Assam Sanmilita Mahasangha v. Union of India
Background of Case
In the case of Assam Sanmilita Mahasangha v. Union of India[4], 2 judges of division bench i.e Justice Surya Kant and Justice JB Pardiwala had different opinions and because of that the case was referred to bigger bench of 5 judges i.e constitutional bench in the matter of constitutional validity of Section 6A of The Citizenship Amendment Act, 1985. The Section was said to violate Article 6 (Citizenship by Migration who migrated from Pakistan to India), 7 (Citizenship of Migrants to Pakistan i.e person migrated to Pakistan from India but later on returned back to India), 14 (Right to Equality), 29 (Protection of interest of Minorities) and Article 355 (Duty of Union to protect states from external aggression and internal disturbances).
Supreme Court Bench
The Bench comprises the following:
- Chief Justice D.Y. Chandrachud
- Justice Surya Kant
- Justice MM Sundresh
- Justice Manoj Misra
- Justice JB Pardiwala
Issues of the Case
The following issues were raised in regard to constitutional validity of Section 6A of Citizenship Amendment Act, 1985:
- Whether the citizenship which was granted to Bangladeshis who came to Assam was within the legislative authority of Parliament under Article 11 of the Indian Constitution?
- Whether Section 6A of Citizenship Amendment Act, 1985 adopted irrational dates and discriminate the State of Assam thereby violating Article 14 of the Constitution?
- Whether Section 6A of Citizenship Amendment Act, 1985 is violative of Article 355 on the ground of external aggression due to provision of undocumented immigration?
- Whether Section 6A of Citizenship Amendment Act, 1985 is violative of Article 29(1) on the ground that Assamese cultural identity is in danger due to influx of immigration of Bangladeshis to Assam?
- Whether Section 6A of Citizenship Amendment Act, 1985 is unconstitutional on the ground of temporal irrationality and neither it provides method for implementation nor empowers the executive to implement the provisions?
Contentions of the Parties
Arguments Advanced by the Petitioners
The petitioners argued that Section 6A undermines the very core values on which our Indian Constitution is based upon i.e national unity and integrity. It was also said that in every situation national fraternity should be kept above international fraternity which is under threat because of Bangladeshi immigrants within Assam. They also said that Section 6A is violative of Article 6 and 7 of the constitution and any type of radical changes cannot be brought just by a simple legislation but it has to be brought by a constitutional amendment. They further said that Section 6A simultaneously violates Article 9 of Indian Constitution and Section 9 of Citizenship Act, 1955 because India does not allow dual citizenship. There is violation of Article 14 as it is only enacted in Assam without any intelligible differentia or a valid geographical justification. They further argue that the section violates Article 29(1) as the influx of immigrants will deprive the Assamese people of their culture and language. Moreover, the petitioner assailed that arrival of Bangladeshis will constitute as external aggression and internal disturbance and a duty is imposed on Union to take necessary steps to protect the state under Article 355.
Arguments advanced by the Respondents
The Respondents contended that firstly, this case should not be reviewed further due to foreign policy implication which is traditionally beyond the judicial review. They argued that Section 6A was introduced in 1985 and a long time has passed and hence there should be no action by invoking doctrine of laches. They further argued that the term “fraternity” promotes equality among individuals and Section 6A prevents societal divisions. It was said that Section does not violate Article 6 and 7 as parliament has been granted authority to make laws regarding citizenship under Article 11 and Entry 17 of List I. They further contended that Article 14 is not violative in this situation as it talks about individuals who are in similar situations which is not case here and said that Article 29(1) is not violated as the article promotes multiculturalism rather than exclusivity. Finally, it was said that 6A should be validated otherwise it would lead to statelessness of immigrants.
Judgment
The constitutional bench of Supreme Court upheld the Constitutional Validity of Section 6A by the majority of 4:1 that confers citizenship to immigrants that entered into Assam between the period of 1st January, 1966 and 25th March, 1971. Justice Surya Kant wrote majority of judgment, Chief Justice had concurring judgment while Justice JB Pardiwala wrote dissenting judgment. The CJI while reading the majority of judgment said Section 6A was created to solve the unique problem which was large influx of illegal immigrants. It was also said that the date March 25th 1971 was given for the entry of illegal immigrants because India took a sympathetic view on Bangladeshis due to the barbarity during war and once the period was over, the influx of migrants made no sense and it was seen differently by the government. Further in response of arguments made that 6A was only applied to influx of immigrants in Assam and not in West Bengal or any north-eastern states, the Supreme Court said that problem in Assam was more severe than in any other state hence not violative of Article 14. Moreover, the Supreme Court also made it clear that one who has entered into Assam after 25th March, 1971 are illegal immigrants and should be deported after the identification through not only Foreigners Act but also under other laws for the purpose. It was assailed before The Hon’ble Court that Section 6A should not be valid as Parliament did not have competence to enact it because granting the citizenship to Bangladeshis is occupied by Article 6 and 7 and any alteration is only possible if there is any constitutional amendment. The Court rejected this argument by saying that scope of Article 6 and 7 is limited and Section 6A deals with those who are not covered by the constitutional provisions. After this, the Supreme Court referred to the judgement of Sarbananda Sonowal v. Union of India[5] & SR Bommai v. Union of India[6] and held that Section 6A is not violative of Article 355. Further, it was said that this section is violative of Article 29(1) because this article does not provide right to conserve only to minorities but to majorities as well who have distinct culture, language and it is argued that large influx of people will cause the culture of people of Assam. The court rejected the argument and said that mere presence of different ethnic group in state is not enough to violate the right guaranteed under Article 29 and moreover, there are various constitutional and legislative provisions that protect Assamese cultural heritage.
Dissenting Judgment
Justice JB Pardiwala held that Section 6A of The Citizenship Act, 1955 should be unconstitutional with passage of time. He argued that Section 6A lacks temporal limit and it places unreasonable burden on state to detect illegal immigrants. Moreover, the section does not align with the constitutional provision of citizenship i.e Article 6 (Citizenship by Migration who migrated from Pakistan to India), Article 7 (Citizenship of Migrants to Pakistan i.e person migrated to Pakistan from India but later on returned back to India). He also argued that Section 6A is temporary unreasonable since it no longer serves its purpose and it will intend in unnecessary influx of illegal immigrants. He further says that this section was added due to political settlement at that time and this section should be interpreted while keeping in the mind its objectives.
Conclusion
To conclude that, the decision reflects a pragmatic approach as the majority judgement focused upon intention because of which this section was added in 1985, the dissenting judgment also raises concerns over potential influx of immigrants in the north-eastern states and areas of West Bengal due to being more vulnerable. There is a need of stronger framework that will stop illegal immigration along with administration at the ground level because even today, the illegal immigration is happening despite implementation of various laws but there is no data on it because it is happening secretly.
[1] State Trading Corporation of India v. CTO, AIR 1963 SC 1811
[2] British Nationality Act, 1981, Acts of Parliament (United Kingdom).
[3] The Citizenship Act, 1955, Acts of Parliament (India).
[4] Assam Sanmilita Mahasangha v. Union of India (2015) 3 SCC 1
[5] Sarbananda Sonowal v. Union of India (2005) 5 SCC 665
[6] SR Bommai v. Union of India (1994) 3 SCC 1
