Assam Accord: SC upholds validity of Section 6A of Citizenship Act

A five-judge bench of the Supreme Court today (17 October) upheld the constitutional validity of Section 6A of Citizenship Act which conferred citizenship benefits to persons from Bangladesh who settled in Assam and had entered India between January 1966 and 25 March 1971.

The court by a majority verdict of 4:1 dismissed a batch of petitions that challenged Section 6A to be invalid as it violated the cultural and economic rights of citizens of Assam and was arbitrary since it singled out Assam even as influx of migrants from Bangladesh extended to other border states of West Bengal and north-eastern states.

The majority verdict by Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justices Surya Kant, MM Sundresh and Manoj Misra was unanimous in its view that the law enacted by Parliament in 1985 was a legislative solution worked out by the Parliament to give effect to the Assam Accord, that was a political solution worked out between the then Rajiv Gandhi-led central government, the Assam government and the All Assam Students Union to preserve and protect the Assamese culture, heritage, linguistic and social identity.

The Accord came at the end of a six-year-long agitation by the All Assam Students Union to identify and deport illegal immigrants, mostly from neighbouring Bangladesh, from the State.

The dissenting opinion was given by justice JB Pardiwala who struck down Section 6A as unconstitutional but protected the rights of citizenship conferred so far by making it prospective in operation. He said that the provision failed to provide a control limit due to which influx of immigrants continued even after 1971.

The court said that the Parliament could not be faulted for singling out Assam as the magnitude was largely felt in Assam where 40 lakh migrants had entered and settled. 

Being less in geographical size and population, the impact on this state was "considerably greater" even though neighbouring state of West Bengal, being larger in size, received over 50 lakh immigrants.

The 4:1 verdict also weighed the arguments of the petitioners that such an influx amounted to external aggression under Article 355. They further argued that the presence of ethnic groups from Bangladesh would violate Article 29 which guarantees cultural rights of people of Assam. \

The court turned down this challenge and said that emergency powers under Article 355 cannot be given to courts or citizens that will have catastrophic effects. It further said that Article 29 can only be said to have been violated if the petitioners can prove that by the mere presence of another group, they were unable to protect their ethnic language and culture.

The majority ruling further held the cut-off of 25 March 1971, to be reasonable and based on rational yardsticks as it was to operate for a limited period and those entering from Bangladesh after this date would be subject to detention and deportation under the Foreigners Act or IMDT Act.

The court also upheld the legislative power of the Parliament to impose such a cut-off, distinct from the cut-off prescribed by the Constitution and said that the influx of migrants witnessed prior to 1971 was more than that during the time of partition.

The court also dismissed arguments of dual citizenship and said that by Section 6A, the immigrants become Indian citizens and relinquish their earlier nationality. It thus held "Section 6A falls within the bounds of the Constitution and is a valid piece of legislation."

This meant that those immigrants from Bangladesh who entered prior to 1966 shall be deemed citizens, while those who entered between 1966 and March 25, 1971, can seek citizenship subject to the conditions laid out. However, those who entered the state of Assam after this date will be declared illegal immigrants and will be deported.

Section 6A was a special provision inserted into the 1955 Citizenship Act on 7 December 1985.

This was challenged by several individuals and organisations, with the first among them approaching the top court in 2009.

The petitions raised several issues to question this provision claiming it to be violative of the right to equality (Article 14), right to life (Article 21) and minority rights (Article 29) under the Constitution of India as it singles out Assam from other border states for having a separate cut-off date for regularising illegal migrants who entered Assam as opposed to other states. Even Muslim bodies such as Jamiat Ulama-e-Hind have questioned the provision for being "anti-minority".

The Centre had opposed the petitions filed in the Court after a long delay of 27 years since the enactment in 1985.

During the hearing, the Centre had informed the court that among the persons detected as foreigners and who came in during the specified period (January 1966 to 25 March 1971), a total of 32,381 persons were detected as foreigners by foreigner tribunals and 17,861 got citizenship after getting registered with the FRRO, as on 31 October 2023.

The Court had sought information on the inflow of illegal immigrants who came in after the cut-off period of 25 March 1971.

The Centre said that an accurate figure cannot be given "since the entry of such foreign nationals into the country is clandestine and surreptitious." 

It further said, "The detection, detention and deportation of such illegally staying foreign nationals is a complex, ongoing process."

The arguments against Section 6A were led by senior advocates Shyam Divan, KN Chaudhary, and Vijay Hansaria who submitted that Parliament while enacting Section 6A effectively amended the Constitution. 

They cited Article 6 of the Constitution that placed the cut-off of January 1950 for migrants who came from Pakistan after 19 July 1948, and were permitted to become citizens. Section 6A, according to them, changed the cut-off to January 1966 as migrants from Bangladesh as of 25 March 1971, were citizens of East Pakistan.

It was further submitted that with the settling of illegal immigrants in Assam, the demography of the state underwent a change and politically, the migrants held a dominant position in 32 out of 126 assembly constituencies.

The Centre and Assam government claimed that Section 6A served its purpose and it was passed in a peculiar situation following the Assam Accord of 1985 to quell violent protests in the state.

"Section 6A is a part of the legislative policy of the Parliament, arising from a political settlement with relevant parties, based on certain relevant considerations of state policy and foreign policy. In such matters, it will be very difficult in determining judicially manageable standards to judge the constitutional validity of the same," the Centre had argued.