Supreme Court holds Assam is a special case when it comes to citizenship

The SC judgment makes it clear that the state has the power to identify and deport illegal migrants not only through the Foreigners Act but also under similar laws for the purpose.

The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Surya Kant, MM Sundresh, JB Pardiwala, and Manoj Misra upheld the constitutional validity of Section 6A of the Citizenship Act 1955, an important clause implementing Section 5 of Assam Accord.

Backstory

In 1985, the Citizenship (Amendment) Act 1985 was enacted to include Section 6A to the Citizenship Act. The provision grants citizenship to persons of Indian origin who migrated to Assam from Bangladesh.

The provision classifies the class of migrants into two categories based on when they entered Assam: those who entered Assam before 1 January 1966 and those who came to Assam after 1 January 1966 but before 25 March 1971. However, no protection was granted to those entering Assam after 25.03.1971, thereby rendering their presence in India illegal and liable for deportation under other existing legislation.

The constitutional validity of Section 6A of the Citizenship Act was challenged and some important questions were framed. Among them most important was: Whether Section 6A violates Article 14 as it singles out Assam from other border states (which comprise a distinct class) and discriminates against it. Also whether there is a rational basis for having a separate cut-off date for regularizing illegal migrants who enter Assam as opposed to the rest of the country.

Assam as a sui generis case

Chief Justice Dr DY Chandrachud in his decision held that: (1) The legislative objective of Section 6A was to balance the humanitarian needs of migrants of Indian Origin and the impact of the migration on the economic and cultural needs of Indian States (2) The two yardsticks employed in Section 6A, that is migration to Assam and the cut-off date of 24 March 1971 are reasonable. (2)Though other states share a greater border with Bangladesh, the impact of migration in Assam in terms of numbers and resources is greater. Thus, the yardstick of migration to Assam is reasonable.

The cut-off date of 25 March 1971 is reasonable because the Pakistani Army launched ‘Operation Searchlight’ to curb the Bangladeshi nationalist movement in East Pakistan on 26 March 1971. Migrants before the operation were considered migrants of the Indian partition; and (3) Both the above yardsticks have a rational nexus with the object of Section 6A.

Court seeks tighter check on illegal flow of migrants

In a separate judgment authored by Justices Surya Kant, MM Sundresh and Manoj Mishra it was held that: Section 6A falls within the bounds of the Constitution and does not contravene the foundational principles of fraternity, nor does it infringe upon Articles 6 and 7, Article 9, Article 14, Article 21, Article 29, Article 326, or Article 355 of the Constitution of India.

Delving in detail on the apparent risk of illegal migration the court held that: Although Section 6A conferred citizenship rights exclusively to immigrants arriving before this cut-off date, there seems to still be an ongoing influx of migrants through various border-states of India.

Due to porous borders and incomplete fencing, this unceasing migration imposes a significant challenge. The judgment acknowledged the “clandestine nature of such inflows” and underscored the necessity for more robust policy measures to curb illicit movements and enhance border regulation.

The court categorically held that: Immigrants who entered the State of Assam on or after 25.03.1971 are not entitled to the protection conferred vide Section 6A.

It also stated that the directions issued in Sarbananda Sonowal are required to be given effect to for the purpose of deporting the illegal immigrants. The judgment also held that the provisions of the Immigrants (Expulsion from Assam) Act, 1950 shall also be read into Section 6A and shall be effectively employed for the purpose of identification of illegal immigrants.

Reinforcing cut-off date

Calling statutory machinery and tribunals tasked with the identification and detection of illegal immigrants or foreigners in Assam as "inadequate", the court concluded that implementation of immigration and citizenship legislations cannot be left to the mere wish and discretion of the authorities, necessitating constant monitoring by this Court.

Put simply, the judgment has two important effects: Firstly, Bangladeshi migrants who entered Assam on or after March 25, 1971, can be declared "illegal immigrants" and second, now the government can enforce the Sarbananda Sonowal judgment to identify and deport illegal migrants.

The judgment makes it clear that the state has the power to identify and deport illegal migrants not only through the Foreigners Act but also under similar laws for the purpose.

The dissent

On a dissenting note, Justice J.B. Pardiwala while holding Section 6A as unconstitutional held that, "Section 6A has acquired unconstitutionality with the efflux of time. The efflux of time has brought to light the element of manifest arbitrariness in the scheme of Section 6A(3) which fails to provide a temporal limit to its applicability”. Justice Pardiwala held that all immigrants in the State of Assam shall be dealt with in accordance with the applicable laws and no benefit under Section 6A shall be available to any such immigrant. To be precise, if someone is apprehended as an illegal immigrant after the pronouncement of this judgment, Section 6A of the Citizenship Act will have no application."