Explained: Why the Supreme Court upheld Assam Accord-driven Section 6A of the Citizenship Act

A Constitution bench of the Supreme Court on Thursday upheld the constitutional validity of Section 6A of the Citizenship Act, 1955 which laid out a framework for migrants in Assam from erstwhile East Pakistan, now modern-day Bangladesh, to receive Indian citizenship as long as they had entered India before March 25, 1971.

The section was added to the act in 1985 to implement the Assam Accord, an agreement between Assamese nationalist leaders and the Indian government that responded to fears in Assam that the land rights and cultural identity of local residents was being hurt by largescale undocumented migration from Bangladesh. The accord barred Indian citizenship to migrants who came to Assam after March 25, 1971, the eve of the date of creation of Bangladesh.

The bench of Chief Justice of India DY Chandrachud and Justices Surya Kant, MM Sundresh, JB Pardiwala and Manoj Misra gave a 4:1 ruling in favour of upholding the constitutionality of the provision. The majority opinion was written by Kant for himself, Sundresh and Misra. Chandrachud delivered a separate concurring opinion while Pardiwala provided the lone dissenting opinion.

Chandrachud’s and Kant’s opinions emphasised the unique historical and social circumstances in Assam, justifying the special provisions under the Assam Accord. Pardiwala, on the other hand, declared Section 6A prospectively invalid – that is, inoperable after the judgment – on the grounds that it deviated from a nationally uniform framework for citizenship and prevented stronger protection for Assam’s indigenous people.

Kant’s majority opinion, which forms the actionable part of the judgment, directed the timely identification, detection, and deportation of illegal immigrants in Assam to be overseen by the Supreme Court.

Scroll unpacks the judgment.

What is Section 6A?

The Assam Accord was signed in 1985 by the Union government and Assamese nationalist leaders following a six-year agitation in Assam against immigration from Bangladesh, which until 1971 was known as East Pakistan. It aimed to award Indian citizenship to migrants who entered Assam before January 1, 1966, while providing a ten-year path to citizenship for those who entered between January 1, 1966, and March 25, 1971. Migrants arriving after March 25, 1971, are not eligible for citizenship and are considered illegal immigrants, to be deported.

March 25, 1971, was when the Bangladesh genocide began in East Pakistan that led to the Bangladesh Liberation War and the eventual creation of Bangladesh. Due to the genocide, an estimated ten million Bengalis from East Pakistan had fled into Assam, which shares a 263 km border with Bangladesh.

The National Register of Citizens, a list of Indian citizens living in Assam, was updated between 2013 and 2019 according to Section 6A as a means of identifying illegal immigrants who had entered the state after March 25, 1971. However, the register is yet to implemented.

In August 2022, the Supreme Court decided to hear a batch of petitions, filed between 2009 and 2018, challenging the constitutionality of Section 6A.

The provision was challenged on the grounds that it violated the Constitution by creating different citizenship rules for Assam compared to the rest of India. In the rest of India, citizenship rules are based on the provisions of the Citizenship Act. Citizenship is based on birth, descent or registration and naturalisation. The cut-off dates and procedures based on the Assam Accord are not applicable to residents of other states.

The petitioners argued that the provision discriminated against Assam’s indigenous population, violating their right to equality under Article 14 of the Constitution, by setting arbitrary cut-off dates for citizenship and impacting their cultural and political rights.

They also contended that Section 6A had diluted the state’s demographic balance and political representation, undermined Assamese identity and led to a massive influx of migrants. This amounted to “external aggression” and “internal disturbance” under Article 355 of the Constitution, thus obligating the Union to protect the state, they contended.

In addition, concerns were raised about the provision’s inconsistency with Articles 6 and 7 of the Constitution, which govern citizenship based on Partition-related migration. Article 6 grants citizenship to persons who migrated to India from Pakistan before July 19, 1948, provided they had been living in India since their migration. Those who migrated on or after this date must register with an authority. Article 7 denies citizenship to those who migrated to Pakistan after March 1, 1947, but allows citizenship if they returned to India under a permit for resettlement or permanent return.

The matter was heard by the Constitution bench in December 2023. The bench reserved its judgment on December 12.

Why was its constitutionality upheld?

Both Kant’s majority opinion and Chandrachud’s concurring opinion aligned on constitutional principles to validate Section 6A, with minor differences in evaluating its practical consequences.

Both opinions justified the differentiated treatment of Assam under Section 6A due to the region’s unique historical and social context. They noted that the exceptional circumstances in Assam during the period leading up to the enactment of Section 6A warranted a tailored approach. This differentiation, in their view, did not violate the equality clause under Article 14.

Kant and Chandrachud agreed that the differing cut-off dates for citizenship eligibility prescribed in Section 6A were reasonable, given the humanitarian and political considerations at the time. They found that these dates reflected a balanced compromise made to manage the influx of migrants while safeguarding the interests of Assam’s indigenous people.

Both rejected the claim that Section 6A facilitated “external aggression” under Article 355, which obliges the Union to protect states from such threats. Kant acknowledged that large-scale illegal migration could, in some cases, be considered external aggression, as noted in previous rulings by the Supreme Court. However, he argued that Section 6A aimed to regulate migration within a specific historical context linked to the Assam Accord, rather than promoting unregulated migration and thus did not violate Article 355.

Chandrachud took a narrower view, contending that “external aggression” referred to military actions or war, not humanitarian migration driven by economic or other distress. He maintained that Section 6A was meant to address a particular historical situation and did not legalise new waves of migration. As a consequence, it did not breach the Union’s duty under Article 355.

With regard to Articles 6 and 7, both judges reasoned that while Articles 6 and 7 outline citizenship criteria for migrants from Pakistan at the time of the inception of the Constitution, Section 6A introduced different cut-off dates to accommodate Assam’s unique demographic challenges stemming from migration in the 1960s and 1970s.

Both concluded that Parliament had the authority to legislate on citizenship matters under Article 11, which allows for laws concerning citizenship and can specify conditions different from those in Articles 6 and 7. They maintained that the provisions of Section 6A were consistent with the broader legislative powers granted to Parliament, enabling it to address the specific needs of Assam while staying consistent with the foundational principles of the Constitution.

Both also held that Section 6A does not infringe on the cultural rights of the Assamese people, arguing that it does not directly erode Assamese culture. Rather, it seeks to implement a structured approach to regularising migrants within specified historical parameters.

Chandrachud and Kant slightly differed on the aspect of potential arbitrariness and the successful implementation of Section 6A.

Chandrachud did not find Section 6A manifestly arbitrary, whereas Kant offered a more nuanced view. He did not categorically reject claims of arbitrariness but said that the legislative intent and historical context of the provision at the time it was enacted provided sufficient justification.

Kant underlined the importance of distinguishing between the legal framework of Section 6A and its actual implementation. He argued out that although Section 6A was constitutionally valid, faulty execution had contributed to persistent illegal immigration.

Pardiwala’s dissent

Pardiwala’s dissenting opinion noted the need to re-examine the continued relevance and legality of Section 6A, given its impact on Assam’s demographics and security. He said that the provision’s arbitrary cut-off dates, lack of temporal limits and differential treatment for Assam compared to other states violate constitutional principles. This required it to be invalidated, he said.

He argued that the provision deviates from the uniform principles of citizenship envisaged in the Constitution, particularly Articles 6 and 7, which set out specific criteria for citizenship based on migration linked to Partition. In his view, the separate cut-off dates for Assam in Section 6A contradicted the constitutional framework for citizenship, leading to inconsistencies.

Pardiwala also viewed Section 6A as violating Article 14 because it treated Assam unequally without a sound constitutional basis. He said that the different cut-off dates were arbitrary and lacked a rational link to the objective of protecting Assam’s demographic balance. He argued that this unequal treatment was discriminatory against the indigenous people and diluted their political rights.

His most stringent criticism was based in the provision’s indefinite applicability. He argued that the lack of a specific timeframe for addressing citizenship issues incentivised illegal immigration and perpetuated a demographic imbalance. He considered the continuous application of Section 6A unreasonable, allowing migrants into the state between 1966 and 1971 to apply for citizenship at any time. This made the cut-off dates arbitrary, he said.

Pointing to the absence of a mechanism for migrants to voluntarily register, he argued that the failure to detect and remove all migrants from electoral rolls undermined the intended distinction between those who arrived before 1966 and those who arrived between 1966 and ’71.

Due to these reasons, Pardiwala suggested that Section 6A should be declared unconstitutional with prospective effect, meaning it would not apply to future cases. He argued that while the provision might have been justifiable at the time of its enactment, changing circumstances had rendered it inconsistent with constitutional principles.

Ramifications of the verdict

By upholding the provision, the Supreme Court has preserved the eligibility of Bengali-origin Muslims who can prove that they entered Assam from Bangladesh between January 1, 1966, and March 25, 1971, for Indian citizenship.

It has also provided a fillip to the long-standing demand of Assamese organisations to scrap of the controversial Citizenship Amendment Act, 2019 that makes non-Muslims who illegally entered India from Bangladesh, apart from Afghanistan and Pakistan, till 2014 eligible for citizenship.

The 2019 act provides a loophole out of the application of Section 6A to Bengali Hindus who entered Assam from Bangladesh after 1971.

The Assam government on July 5 asked the state’s border police not to forward cases of non-Muslims who entered India illegally before 2015 to foreigners’ tribunals. This effectively means that Hindu Bengalis, among other non-Muslims in the state, will not for now be prosecuted by the tribunals, which are quasi-judicial bodies that adjudicate on matters of citizenship.

Kant’s majority judgment also contains directions that could be used to justify an increased crackdown upon illegal immigrants in the state.

Acknowledging that Section 6A had not been able to stem illegal immigration into Assam, Kant issued directions “to curb illicit movements and enhance border regulation”.

He ordered that the Immigrants (Expulsion from Assam) Act, 1950 shall be read into Section 6A for the purpose identifying illegal immigrants. The 1950 act empowers the state to order the expulsion of an immigrants from Assam in “the interests of the general public of India or of any section thereof or of any Scheduled Tribe in Assam”.

He also asked the Chief Justice of India to constitute a bench of the court to monitor the identification, detection and deportation of illegal immigrants or foreigners in Assam in a time-bound manner.