A Constitution Bench of the Supreme Court, in a majority judgment of 4:1 ratio, upheld the constitutionality of Section 6A of the Citizenship Act 1955, which permits immigrants from Bangladesh residing in Assam to secure Indian citizenship, as a valid piece of legislation aligned to the Preambular value of fraternity.
The principle of fraternity cannot be selectively applied to one section living in Assam while another lot is labelled “illegal immigrants”, Justice Surya Kant, who authored the lead opinion for the five-judge Bench, observed.
“Our reading of the Constitution and precedents is that fraternity requires people of different backgrounds and social circumstances to ‘live and let live’... When faced with the dilemma of disenfranchising millions or safeguarding a community’s endogamous way of life, this Court would certainly be compelled by the principles of fraternity to prioritise the former,” he observed.
Section 6A, which traces its roots to the political solution of Assam Accord of 1985, mandates that immigrants who entered Assam from Bangladesh prior to January 1, 1966, would be deemed to be Indian citizens. Those who entered into the State between January 1, 1996, and March 25, 1971, would be conferred citizenship based on the fulfilment of specific procedures and conditions. The Section, however, barred citizenship to those who entered Assam after March 25, 1971.
Migration from Bangladesh
Justice Kant, in his opinion shared with Justices MM Sundresh and Manoj Misra, however said that incessant migration from Bangladesh was indeed a burden on Assam. But the blame for this phenomenon cannot be attributed to Section 6A alone. A large part of the fault lay with the government’s failure to detect and deport the post-1971 immigrants from Bangladesh, he said.
The Court found the statutory machinery and Tribunals tasked with the identification and detection of illegal immigrants or foreigners in Assam inadequate and disproportionate to the requirement of giving time-bound effect to the legislative object of Section 6A read with the Immigrants (Expulsion from 185 Assam) Act, 1950, the Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, the Passport (Entry into India) Act, 1920 and the Passport Act, 1967.
“The implementation of immigration and citizenship legislations cannot be left to the mere wish and discretion of the authorities, necessitating constant monitoring by this Court,” Justice Kant highlighted.
The Constitution Bench directed the issue to be placed before the Chief Justice of India for constituting a Bench to monitor the implementation of these laws in question in Assam.
Chief Justice of India DY Chandrachud, in a separate opinion backing Justice Kant, said Section 6A was the Parliament’s balancing act between its humanitarian view towards immigrants from Bangladesh and the impact of the huge influx on its economic and cultural resources.
The Chief Justice agreed that the cut-off date of March 25, 1971, was reasonable. He reminded that the Pakistani Army had launched Operation Searchlight to curb the Bengali nationalist movement in East Pakistan on March 26, 1971. The immigrants from Bangladesh who entered India before the cut-off date were victims of the partition towards which India had a liberal policy, while those who came after the date were taken in as refugees of the war.
The majority on the Bench held that Section 6A did not violate citizenship provisions of Articles 6 and 7 of the Constitution. The Articles prescribed a cut-off date for conferring citizenship for migrants from East and West Pakistan at the “commencement of the Constitution”, that is January 26, 1950; Section 6A operated from much later time and date.
Petitions by NGOs
The Court was hearing petitions filed by NGOs like Assam Public Works and the Assam Sanmilita Mahasangha, who condemned Section 6A for the huge inflow of illegal immigration, which was putting an incredible strain on the State’s economic and developmental goals besides causing demographic changes. The NGO said the provision was a threat to the Assamese people’s right to protect and conserve their political, linguistic and cultural rights. They urged the apex court to declare Section 6A discriminatory, arbitrary and illegal.
Justice JB Pardiwala, in his lone dissenting opinion, declared Section 6A unconstitutional with prospective effect.
Chief Justice Chandrachud dismissed the notion that the mere presence of different ethnic groups in a State would infringe the right to conserve the language and culture of one group.
“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 people to take steps to protect their culture is violated by the provisions of Section 6A… The cultural and linguistic interests of the citizens of Assam are protected by constitutional and statutory provisions,” the CJI noted.
Justice Kant argued that sustainable development and population growth in a State could coexist harmoniously and need not be mutually exclusive. The Judge warned that allowing the petitioners’ argument that influx of immigrants affected the local people’s right to sustainable development may even result in curbs on domestic inter-State movement.
“A nation can accommodate immigrants and refugees, while simultaneously prioritising sustainable development and equitable allocation of resources,” he observed.