Section 6A Citizenship Act no longer valid with efflux of time: Justice JB Pardiwala in dissenting verdict

Justice JB Pardiwala of the Supreme Court today held that Section 6A of the Citizenship Act of 1955, which enables the grant of Indian citizenship to immigrants covered by the Assam Accord, has become invalid with the efflux of time [In Re: Section 6A Citizenship Act 1955].

As per Section 6A, people who entered India between January 1, 1966 and March 25, 1971, and who have been living in Assam, will be allowed to register themselves as Indian citizens.

Justice Pardiwala has held that the provision is unconstitutional with prospective effect, while four other judges on a Constitution Bench upheld its validity.

The judge based his dissenting opinion on three major factors:

1. There was no temporal limit in Section 6A;

2. Section 6A leaves a burden on the State to detect and deport illegal immigrants;

3. Section 6A(3) does not align with Articles 6 (rights of citizenship of certain persons who have migrated to India from Pakistan) and 7 (rights of citizenship of certain migrants to Pakistan) of the Constitution of India.

"Section 6A has acquired unconstitutionality with the efflux of time. No temporal limit for its applicability also weighs in and all the burden on the state to detect and deport also adds to it...It has solely contributed to the influx of illegal immigrants into Assam. Section 6A does not align with Articles 6 and 7 of the Constitution as the crucial difference is that onus of registration (of a foreigner) under Article 6 lies on the person and not the State...but under 6A it falls on the State," the judge noted.

Section 6A fails test of 'temporal unreasonableness'

Justice Pardiwala reasoned that Section 6A has failed the test of temporal arbitrariness or temporal unreasonableness.

Even if the provision was valid at the time of its enactment for being based on valid criteria that was linked to its object, it is no longer valid today with the efflux of time, Justice Pardiwala held. In other words, it becomes "temporally unreasonable."

This aspect of judging the reasonableness of a law based on time can be viewed as a third test to determine whether it is arbitrary, he added.

"Section 6A in the absence of any temporal limit to its application, with the efflux of time, is counter-serving the object with which it was enacted. The mechanism does not permit a immigrant of 1966-1971 stream to voluntarily seek citizenship and such an immigrant has to wait indefinitely for a reference to be made to the foreigner's tribunal. Similarly, in the absence of any specified date for availing the benefit of citizenship under Section 6A(3), the object of expeditious deletion of immigrants from the electoral roll is not met...The test of temporal unreasonableness...would involve an examination whether the two pronged tests (of whether a law is arbitrary) have continued to remain relevant with efflux of time," Justice Pardiwala said.

Other highlights from the dissenting verdict

The lone dissenting judge recounted that Section 6A was enacted to give legislative recognition to a political settlement. He said that the intention of parties while signing the Assam Accord should be kept in mind while interpreting the object of Section 6A.

He noted that a close reading of Section 6A reveals that citizenship was conferred in two ways (i) citizenship to all immigrants who entered Assam from Bangladesh before January 1, 1966; (ii) immigrants who entered Assam between January 1, 1966 and March 25, 1971 were considered as Indian citizens, barring voting privileges for 10 years. There was a reason why there were these two modes of granting citizenship, he observed.

"Legislature could have simply conferred deemed citizenship to anyone who entered before 1971. But the very fact that a statutory category was created from 1966 to 1971, subject to a stricter condition (no voting rights for 10 years) would mean that conferment of citizenship was not the only objective and it was in fact to pacify the Assam people that such inclusion would not impact the then upcoming elections in the State," he explained.

Justice Pardiwala also pointed out that sub-section 3 of Section 6A leads to certain illogical conclusions.

Section 6A (3) says that every person of Indian origin who came to Assam between January 1, 1966 and March 25, 1971, and has been ordinarily resident in Assam since then, and who has been detected as a foreigner, should register himself.

It adds that if such a person's name is included in any electoral roll on the date of such detection, his name shall be deleted therefrom.

The judge noted that the provision appeared to go against its object since no person would want voluntarily want to get detected as a foreigner under it.

"It is illogically unique that a person wanting to avail benefits of citizenship under Section 6A has to wait for being detected and then move to the tribunal to prove the same. I have held it militates against the very purpose of such a law," Justice Pardiwala said.

Justice Pardiwala was part of a Constitution Bench - along with Chief Justice of India (CJI) DY Chandrachud and Justices Surya Kant, MM Sundresh,and Manoj Misra - that decided on the matter.

The outcome of the case is poised to have a major bearing on the National Register of Citizens (NRC) list.

[Read judgment]