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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, C.J.I., SURYA KANT, M.M. SUNDRESH, J.B. PARDIWALA, MANOJ MISRA, JJ.
IN RE : SECTION 6A OF THE CITIZENSHIP ACT 1955
Writ Petition (C) No 274 of 2009 With Writ Petition (Civil) No. 916 of 2014 With Writ Petition (Civil) No. 470 of 2018 With Writ Petition (Civil) No. 1047 of 2018 With Writ Petition (Civil) No. 68 of 2016 With Writ Petition (Civil) No. 876 of 2014 With Writ Petition (Civil) No. 449 of 2015 With Writ Petition (Civil) No. 450 of 2015 And With Writ Petition (Civil) No. 562 of 2012
Decided On : 17-10-2024
Key Points: - Parliament’s power to enact Section 6A under Article 11 and its relation to Part II; Section 6A not amendments to Articles 6/7; rational classification valid for Assam context (!) - (!) . - Section 6A not violative of Article 14; cut-off dates 1.1.1966 and 25.3.1971 deemed rational nexus to Assam’s context; under-inclusiveness/over-inclusiveness addressed with yardsticks; constitutional harmony with Assam Accord (!) - (!) . - Section 6A(3) and 6A(2) constitutional; temporal unreasonableness not grounds to invalidate; but temporal reasonableness discussed by dissent; majority upholds validity with directions and limitations; interaction with IEAA, Foreigners Act, and NRC framework explained (!) - (!) . - Article 355 not independent ground for striking down Section 6A; external aggression/ internal disturbance connection discussed via Sarbananda Sonowal line; majority rejects broad Article 355 challenge but notes implementation gaps (!) - (!) , (!) - (!) . - Article 29(1) right to conserve culture examined; majority finds Section 6A does not infringe Assamese culture rights in the manner claimed; culture protection preserved via broader constitutional framework (!) - (!) , (!) - (!) . - Judicial review framework and doctrine of temporal overruling referenced; Section 6A ultimately held constitutionally valid with prospective direction in some judgments and separate views on timing (!) - (!) , (!) - (!) . - Directions issued for implementation improvements; NRC/IEAA integration and deportation mechanisms emphasized (!) - (!) . - Overall conclusion: Section 6A constitutional; however, concerns about enforcement and future applicability noted; temporal concerns highlighted by dissenting view (Justice Pardiwala).
JUDGMENT
Dr. Dhananjaya Y. Chandrachud, CJI.
| A. Background |
| B. Issues |
| C. Analysis |
| i. Legislative competence of Parliament to enact Section 6A |
| a. The scope of the constitutional provisions on Indian citizenship |
| b. Section 6A of the Citizenship Act 1955 does not conflict with Articles 6 and 7 of the Constitution |
| c. The scope of Article 11 of the Constitution |
| ii. Section 6A is not violative of Article 14 of the Constitution |
| a. The legal regime under the Citizenship Act 1955 governing migrants |
| b. The legal regime governing migrants from East and West Pakistan to Assam |
| c. The scope of judicial review under Article 14 |
| d. The scope of judicial review of under-inclusive provisions |
| e. The legislative objective of Section 6A of the Citizenship Act |
| f. Section 6A is not violative of Article 14 |
| iii. The challenge under Article 355 |
| iv. Section 6A does not violate Article 29(1) of the Constitution |
| v. Section 6A(3) is constitutional |
| a. Section 6A(3) cannot be held unconstitutional even if foreigners cannot set the process in motion Error! Bookmark not defined. |
| b. Section 6A(3) is not unconstitutional on the ground of temporal unreasonableness |
| vi. Section 6A(2) cannot be held unconstitutional for not prescribing a procedure for registration |
| D. Conclusion |
1. Section 6A of the Citizenship Act 19551[“Citizenship Act”] confers citizenship on a specific class of migrants from Bangladesh to Assam. In Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1, a two-Judge Bench referred the issue of the constitutional validity of Section 6A to a Constitution Bench. The petitioners have assailed the constitutional validity of Section 6A on the ground that it violates Articles 6,7,14, 29 and 355.
2. I have had the benefit of the opinions of my learned brothers, Justice Surya Kant and Justice J B Pardiwala. Having regard to the constitutional importance of the issues raised, I deem it necessary to author my own opinion.
A. Background
3. The judgment of Justice Surya Kant traces the background and the submissions of the counsel with sufficient clarity. To avoid prolixity, I will briefly advert to the background.
4. In 1985, the Citizenship (Amendment) Act 1985 was enacted to include Section 6A to the Citizenship Act3[“6A. Special provisions as to citizenship of persons covered by the Assam Accord.?
(a) “Assam” means the territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Act, 1985 (65 of 1985);
(b) “detected to be a foreigner” means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 (31 of 1946) and the Foreigners (Tribunals) Order, 1964 by a Tribunal constituted under the said Order;
(c) “specified territory” means the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985 (65 of 1985);
(d) a person shall be deemed to be Indian origin, if he, or either of his parents or any of his grandparents was born in undivided India;
(e) a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opinion to the effect that he is a foreigner to the officer or authority concerned.
(2) Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the 1st day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since
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Declared foreigners in Assam have limited rights compared to citizens, maintaining basic rights under Article 21 but lacking access to benefits meant for citizens.
The Supreme Court's decision in paragraph 218(d) of In Re: Section 6A of the Citizenship Act, 1955, is binding, stating that foreigners detected between 01.01.1966 and 24.03.1971 must register within....
The court affirmed that obtaining a passport from another country conclusively proves voluntary acquisition of its citizenship, terminating Indian citizenship under the Citizenship Act.
The government has unfettered authority to expel declared foreign nationals, underscoring the limitations on procedural protections relative to citizens in expulsion cases under immigration law.
The burden of proof for citizenship lies with the alleged foreigner, and failure to establish this can lead to a declaration of illegal migration.
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