Live and Let Live: Supreme Court upholds constitutional validity of Section 6A of Citizenship Act

The Supreme Court on Oct 17 upheld the constitutional validity of Section 6A of the Citizenship Act of 1955, which confers citizenship to Bangladeshi immigrants who entered Assam between January 1, 1966, and March 25, 1971, but said that upon registration such citizens would not be entitled to be included in any electoral roll for 10 years.

While delivering the verdict, the court said, “We cannot allow one to choose their neighbors and it runs against their principle of fraternity. The principle is live and let live.”

A five-judge bench headed by Chief Justice of India (CJI) D.Y. Chandrachud delivered the verdict. Justices — Surya Kant, MM Sundresh, and Manoj Misra upheld the provision's validity in a 4:1 majority, with Justice Pardiwala dissenting.

Reading out his separate judgment concurring with the majority verdict penned by Justice Kant, the CJI said, "The Central government could have extended the application of the Act to other areas, but it was not done because it was unique to the magnitude of Assam."

Chandrachud opined that the mere presence of diverse ethnic groups within a state does not, in itself, constitute a violation of Article 29 (1) of the Constitution (protection of interests of minorities). CJI observed that the magnitude of the influx of migrants in Assam was 40 lakh, which is high compared to other states considering the smaller land size.

Section 6A is a special provision inserted into the 1955 Act in furtherance of a Memorandum of Settlement called the “Assam Accord” signed on August 15, 1985, by the then Rajiv Gandhi-led government with the representatives of the Assam Movement following the Indo-Pakistan War in 1971.

Assam Movement was a popular uprising in Assam that demanded the government of India detect, disenfranchise, and deport illegal aliens.
While delivering the verdict, the court said, “Upon being detected as foreigners, immigrants can register themselves as Indian citizens. Upon registration, they would have the same rights and obligations as a citizen of India but would not be entitled to be included in any electoral roll for 10 years.”

The bench said that Assam has the power to identify and deport illegal migrants through not only the Foreigners Act but also under other similar laws for the purpose. It noted that the Assam Accord was a political solution to the problem of illegal migration.

Justice Pardiwala, in his dissent, declared the contentious provision unconstitutional with a prospective effect. He reasoned that while the statutory provision may have been constitutionally valid at the time of its enactment, it has become “unconstitutional” with the efflux of time.

He asserted that Section 6A embodies the “spirit of fraternity”.

"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." Kant noted.

He said that none of the immigrants have found the term "ordinarily resident in Assam" used in Section 6A to be vague or arbitrary.

"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..." Kant observed.

Senior lawyer Shyam Divan, advocate Somiran Sharma, KN Choudhury, and Vijay Hansaria argued for petitions against Section 6A.

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

Pertinently, the Union Home Ministry had recently informed the Court that it would not be able to provide accurate data on the extent of illegal migration of foreigners into India since such migrations happen in a secretive manner.

The ministry stated in an affidavit that 14,346 foreign nationals were deported from the country between 2017 and 2022, and 17,861 migrants who had entered Assam between January 1966 and March 1971 were given Indian citizenship.

The Assam Movement led by the All Assam Students Union (AASU) and All Assam Gana Sangram Parishad (AAGSP) defined six years (1979–1985) sustained civil disobedience campaigns, political instability, and widespread ethnic violence. The movement ended in 1985 with the Assam Accord.