By Arshad Shaikh
NEW DELHI: In a 4:1 majority decision, a Constitution Bench of the Supreme Court of India on Thursday, October 17, 2024, upheld the validity of Section 6A of the Citizenship Act, 1955, which grants citizenship to immigrants who entered Assam between January 1, 1966, and March 25, 1971.
The five-judge Bench, led by Chief Justice of India (CJI) D.Y. Chandrachud, delivered the judgment. Justice Surya Kant authored the primary majority opinion, with the Chief Justice offering a concurring view. However, Justice J.B. Pardiwala dissented, deeming the provision unconstitutional with prospective effect.
What is Section 6A?
Section 6A is a special provision introduced into the Citizenship Act of 1955 under the Citizenship (Amendment) Act, 1985. It was following the Assam Accord, a three-party agreement signed on August 15, 1985, between the Central Government, the Government of Assam, and leaders of the Assam Movement. The accord, signed during the term of then Prime Minister Rajiv Gandhi, sought to address the issues arising from the large-scale migration that happened before the 1971 Bangladesh Liberation War and the arrival of migrants following the Indo-Pakistan War of 1971. This provision applies only to Assam and seeks to detect and deport foreigners who entered the state after March 25, 1971, which marks the creation of Bangladesh. Section 6A grants citizenship to immigrants who entered Assam before January 1, 1966, provided they have been living there regularly. These individuals are given the same rights and obligations as Indian citizens. Additionally, those who arrived between January 1, 1966, and March 25, 1971, are also entitled to similar rights and obligations but are disallowed from voting for 10 years. By creating a specific framework to address migration in Assam, the Assam Accord aimed to end the tensions that arose from illegal immigration while balancing welfare concerns with the socio-political interests of the region. One should know that once the movement to liberate Bangladesh (then East Pakistan) started gathering steam, after which there was a crackdown by the Pakistani government, there was large scale flight of migrants from Bangladesh who were Bengalis (both Hindus and Muslims). Naturally, the Assamese people felt threatened by this influx as it could alter the demography and impact their culture and political strength.
Arguments for and against Section 6A
Justice Surya Kant, writing the main opinion, stressed that brotherhood must apply to all. “The principle of fraternity cannot be selectively applied to one section living in Assam while another lot are labelled ‘illegal immigrants,’” he said. He added that this ‘togetherness’ requires people to “live and let live.” Justice Kant accepted that migration from Bangladesh had burdened Assam, but said the problem was not due to Section 6A alone. He blamed the government for failing to detect and deport those arriving after 1971. Chief Justice D.Y. Chandrachud supported Justice Kant’s view. He described Section 6A as a way to balance compassion for immigrants with the need to protect Assam’s resources. He defended the March 25, 1971 cut-off date, explaining that the Pakistani military launched Operation Searchlight on March 26, 1971, to suppress Bengali nationalism, which forced many to flee. “The immigrants from Bangladesh who entered India before the cut-off date were victims of the partition towards whom India had a liberal policy,” the CJI explained. He noted that later arrivals were treated as refugees of war. The Chief Justice rejected claims that Section 6A threatened Assam’s cultural identity under Article 29(1) of the Constitution. “Section 6A does not violate Article 29(1). 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,” he remarked. Justice Kant added that population growth and resource management can coexist. He warned that accepting the argument about immigration harming local development might even limit inter-state migration. The petitions against Section 6A were filed by NGOs like Assam Public Works and Assam Sanmilita Mahasangha. They criticized Section 6A for rewarding illegal immigration. The NGOs wanted the law declared discriminatory and arbitrary. They felt Section 6A was discriminatory and harmful to Assam’s demographic, cultural, and economic interests. The petitioners also claimed that Section 6A violated Articles 6 and 7 of the Constitution, which provide a citizenship cut-off at the commencement of the Constitution (January 26, 1950). They feared that legitimizing migrants who entered Assam between 1966 and 1971 would strain the state’s resources and disrupt its demographic balance.
How will the SC order impact NRC?
The Supreme Court’s decision to uphold Section 6A will have significant implications for the National Register of Citizens (NRC) in Assam. By validating the March 25, 1971 cut-off date, the court’s ruling provides clarity on who qualifies as an Indian citizen under the NRC framework. Individuals who entered Assam between 1966 and 1971 and meet the legal criteria will now remain protected under Section 6A, ensuring their inclusion in the NRC. However, the ruling also highlighted the government’s failure to detect and deport post-1971 migrants, suggesting that tighter enforcement and continuous monitoring will be necessary to ensure the NRC functions effectively. The Supreme Court even directed the Chief Justice of India to set up a Bench to oversee the implementation of immigration laws in Assam.
Implications of scrapping Section 6A
If the Supreme Court had not upheld the validity of Section 6A, the implications for Assamese Muslims would have been quite dire. Many Assamese Muslims who entered Assam between January 1, 1966, and March 25, 1971, could have faced the risk of being classified as illegal immigrants. This classification would have stripped them of their citizenship rights, effectively making them stateless. The ruling could have intensified the marginalization of Assamese Muslims, subjecting them to further social, economic, and political discrimination. They may have faced increased scrutiny and suspicion regarding their residency status, leading to heightened communal tensions. The decision could have disrupted the social fabric of Assam, worsening divisions between communities. This could have resulted in heightened conflicts and instability, particularly in areas where Assamese Muslims form a significant part of the population. Without the protections offered by Section 6A, Assamese Muslims could have found themselves politically vulnerable, with fewer means to advocate for their rights and interests. This would have limited their representation in political processes and decision-making.
New Twist to Politics in the State
Anti-CAA groups welcomed the verdict, as they view it as a step toward fully implementing the Assam Accord. Although the Supreme Court didn’t address the CAA directly, it rejected the idea that migrants from other cultures would harm Assamese culture, which could help ongoing legal challenges to the CAA. After the judgement Kapil Sibal tweeted, “Citizenship Act, 1955, Section 6-A Upheld by Supreme Court – Message to all: “Live and let live”, Conserve the culture of a “multicultural and plural nation that India is”, Bhakts listening? Bajrang Dal listening? Governments listening? “The NRC (National Register of Citizens) has already registered 31 lakh people as citizens. With the CAA in place, it becomes difficult to identify and deport migrants based on the new March 25, 1971 cut-off. This situation may lead to political problems and legal battles, as both NRC results and the cut-off date will be closely monitored by the Supreme Court. The verdict is a boost for anti-CAA groups and opposition parties in Assam. It is a setback for Chief Minister Himanta Biswa Sarma, who now has to juggle CAA’s promises, which appeal to BJP supporters, and the demand to revert to the 1951 cut-off, which is supported by indigenous Assamese groups unhappy with the NRC results. While BJP hoped the CAA would strengthen its political position, the Supreme Court’s decision may create challenges for both the party and the Assam government. Meanwhile, the BJP has officially welcomed the judgement, calling it historic, saying it would lead to “action against large scale illegal immigration into Assam.”
