Citizenship Act, 1955 — Section 6A — Special provisions as to citizenship of persons covered by the Assam Accord — The case involves the constitutional validity of Section 6A of the Citizenship Act 1955, which grants citizenship to certain migrants from Bangladesh to Assam —The main issues include whether Parliament had the legislative competence to enact Section 6A, and if Section 6A violates Articles 6, 7, 14, 29, and 355 of the Constitution — Petitioners argue that Section 6A is unconstitutional as it conflicts with Articles 6 and 7, adopts unreasonable cut-off dates, and violates Articles 14, 29, and 355 — Respondents contend that Section 6A is within Parliament’s legislative competence under Article 11 and does not violate the Constitution — The judgment addresses the legislative competence of Parliament, the reasonableness of cut-off dates, and the impact on Assamese cultural identity — The court examines the historical context of citizenship provisions, the legislative intent behind Section 6A, and the scope of judicial review under Article 14 — The court analyzes the constitutional provisions on citizenship, the legislative objective of Section 6A, and the balance between legislative intent and constitutional mandates —The court concludes that Section 6A of the Citizenship Act is constitutional and does not violate the cited Articles of the Constitution.

2024 INSC 789

SUPREME COURT OF INDIA

5 JUDGES BENCH

IN RE : SECTION 6A OF THE CITIZENSHIP ACT 1955

( Before : Dhananjaya Y Chandrachud, CJI., Surya Kant, M.M. Sundresh, Manoj Misra and J.B. Pardiwala, JJ. )

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

Decided on : 17-10-2024

A. Citizenship Act, 1955 — Section 6A — Special provisions as to citizenship of persons covered by the Assam Accord — Constitutional validity of 6A on the ground that it violates Articles 6,7,14, 29 and 355 — Legislative Competence of Parliament — The court determined that Parliament had the competence to enact Section 6A of the Citizenship Act under Article 11 of the Constitution — It held that Section 6A did not amend or alter Articles 6 and 7 of the Constitution, which govern citizenship at the time of the Constitution’s commencement.

B. Citizenship Act, 1955 — Section 6A — Constitution of India, 1950 — Article 14 — Equality Before Law — The court held that Section 6A does not violate Article 14 of the Constitution, which guarantees equality before the law — The court found that Assam’s unique situation concerning migrants from Bangladesh justified a different legal treatment.

C. Constitution of India, 1950 — Article 29(1) — Protection of Cultural Rights — The court rejected the argument that Section 6A violates Article 29(1) of the Constitution, which protects the cultural rights of minorities — It found that the law was not violative of the Assamese cultural identity as claimed by petitioners.

D. Constitution of India, 1950 — Article 355 – Protection Against External Aggression — The judgment also addresses the issue under Article 355, which pertains to the Union’s duty to protect states from external aggression — The court ruled that the influx of migrants does not constitute external aggression under Article 355.

E. Citizenship Act, 1955 — Section 6A — Special provisions as to citizenship of persons covered by the Assam Accord — The case involves the constitutional validity of Section 6A of the Citizenship Act 1955, which grants citizenship to certain migrants from Bangladesh to Assam —The main issues include whether Parliament had the legislative competence to enact Section 6A, and if Section 6A violates Articles 6, 7, 14, 29, and 355 of the Constitution — Petitioners argue that Section 6A is unconstitutional as it conflicts with Articles 6 and 7, adopts unreasonable cut-off dates, and violates Articles 14, 29, and 355 — Respondents contend that Section 6A is within Parliament’s legislative competence under Article 11 and does not violate the Constitution — The judgment addresses the legislative competence of Parliament, the reasonableness of cut-off dates, and the impact on Assamese cultural identity — The court examines the historical context of citizenship provisions, the legislative intent behind Section 6A, and the scope of judicial review under Article 14 — The court analyzes the constitutional provisions on citizenship, the legislative objective of Section 6A, and the balance between legislative intent and constitutional mandates —The court concludes that Section 6A of the Citizenship Act is constitutional and does not violate the cited Articles of the Constitution.

JUDGMENT

Table of Contents

Per Dr Dhananjaya Y Chandrachud, CJI – Section 6A of the Citizenship Act 1955[1] confers citizenship on a specific class of migrants from Bangladesh to Assam. In Assam Sanmilita Mahasangha v. Union of India[2], 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 Act[3]. 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.

5. Section 6A(2) provides that a person would be deemed to be a citizen of India as on 1 January 1966 if the following conditions are fulfilled:

6. Section 6A(3) states that a person must register to secure citizenship in accordance with the rules made by the Central Government under Section 18 if the following conditions are fulfilled:

7. The Explanation to Section 6A(3) stipulates that the opinion of the Tribunal constituted under the Foreigners Tribunals Order declaring a person to be a Foreigner is deemed as sufficient proof for requirement (d). Whether the person satisfies the other requirements must be decided on the basis of the opinion of the Tribunal, if there is a finding in the opinion with respect to that requirement. If the opinion does not have a finding with respect to the other requirement(s), the registering authority must refer the questions to the Tribunal.[9]

8. Section 6A(4) states that if the person who has registered under sub-Section (3) is included in the electoral roll for any assembly or parliamentary constituency, their name must be deleted from the roll for a period of ten years from the date of detection as a foreigner. However, a person who has been registered will have the same rights and obligations as a citizen of India except having their name included in the electoral roll for ten years.[10] They will also have the right to obtain passport under the Passport Act 1967. Upon the completion of ten years from the date of detection as a foreigner, a person who has registered would deemed to be a citizen of India.[11]

9. The petitioners[12] initiated proceedings under Article 32 of the Constitution, inter alia[13], for challenging the constitutional validity of Section 6A of the Citizenship Act. By an order dated 17 December 2014, a two-Judge Bench of this Court referred the following thirteen issues to a Constitution Bench:

10. On 13 December 2022, the Constitution Bench directed the counsel to jointly formulate issues which arise for the consideration of the Bench. On 10 January 2023, the Constitution Bench framed the following primary issue for determination: “Whether Section 6A of the Citizenship Act suffers from any constitutional infirmity.”

11. The issue of the constitutional validity of Section 6A of the Citizenship Act is the only issue which falls for the consideration of this Bench.

B. Issues

12. The challenge to the constitutional validity of Section 6A of the Citizenship Act gives rise to the following issues:

C. Analysis

i. Legislative competence of Parliament to enact Section 6A

13. The petitioners submitted that Parliament did not have the competence to enact Section 6A because: (a) the legislative field with respect to granting citizenship to migrants from Bangladesh to India is occupied by Articles 6 and 7; and (b) any alteration of the cut-off date prescribed by Articles 6 and 7 for migrants from Bangladesh could only be through a constitutional amendment and not by parliamentary legislation. The respondents submitted that even if it is accepted that Section 6A amends Articles 6 and 7, the amendment is permissible in view of Article 11.

a. The scope of the constitutional provisions on Indian citizenship

14. Section 6A confers citizenship to migrants of Indian origin from the specific territory of Bangladesh. The legal regime on citizenship, in particular the provisions governing citizenship status to migrants from East and West Pakistan in the aftermath of the partition of India must be laid bare to understand the context in which Section 6A was inserted in the Citizenship Act.

15. The Constitution of India upon its adoption guaranteed fundamental rights to the citizens of India.[14] It is but natural that the provision on who would be citizens of the newly independent nation produced one of the most contentious of discussions in the Constituent Assembly.[15] On 30 May 1947, Mr BN Rau, the Constitutional Advisor prepared the Memorandum on the Union Constitution and Draft Clauses. The Part on Citizenship consisted of three provisions. The first provision prescribed who would be citizens of India on the date of the commencement of the Constitution.[16] The second provision stipulated who would be citizens after the commencement of the Constitution.[17] The provision recognised citizenship by birth, citizenship by naturalization and citizenship by descent. The third provision stipulated that further provisions governing the acquisition and termination of federal citizenship may be made by Federal law.[18] It was, however, observed in the Note appended to the Memorandum that the second clause was not necessary since (a) it would be impossible to exhaustively define the conditions of nationality, birth or naturalisation in the Constitution; and (b) there may be some difficulty in the interpretation of the provisions of legislation on citizenship if the provisions were entrenched in the Constitution.[19] The ad-hoc Committee on Citizenship slightly altered the first clause[20], agreed to the second clause and recommended that in addition to the law making power on acquisition and termination of citizenship, a provision for avoiding dual citizenship may be included in the third clause.[21]

16. The provision on conditions for acquiring citizenship after the commencement of the Constitution, that is, the second clause in the memorandum, was not included in the Draft Constitution of India 1948[22]submitted by the Drafting Committee on 21 February 1948. The Draft Constitution only included provisions on who would be citizens on the date of the commencement of the Constitution,[23] and granted Parliament the power to make provision on acquisition and termination of citizenship and “all other matters relating thereto”.[24] Article 5 of the Draft Constitution 1948 included provisions for refugees from East and West Pakistan. Clause (b) of Article 5 provided that every person who or either of whose parents or any of whose grandparents were born in India as defined in the Government of India Act 1935 or in Burma, Ceylon or Malaya and who is domiciled in the territory of India as defined by the Constitution will be a citizen upon the commencement of the Constitution, provided that the person has not acquired the citizenship of any foreign State. The explanation to the provision stated that a person is deemed to be domiciled in the territory of India on depositing a declaration to acquire such domicile after having resided for at least one month in the territory of India.[25] According to the explanation, the declaration had to be deposited before the commencement of the Constitution. Thus, migrants from East or West Pakistan to India could be citizens by virtue of Article 5(b) of the Draft Constitution if they submitted a declaration after having resided in India for a month.

17. Dr Ambedkar, as the Chairperson of the Drafting Committee introduced amendments to draft Articles 5 (corresponding to Article 5 of the Indian Constitution) and 6 (corresponding to Article 11). He further introduced Articles 5-A (corresponding to Article 6), 5-B (corresponding to Article 7) and 5-C (corresponding to Article 10) which provided separate provisions for migrants to acquire citizenship.[26] While introducing these amendments, Dr Ambedkar noted that the object of the above provisions was not to lay down a permanent law of citizenship but to decide who would be citizens as on the date of the commencement of the Constitution.[27] The drafting history of the provisions on citizenship (in particular the deletion of clause 2 of the Memorandum) elucidates that after extensive deliberation in the Constituent Assembly and the Drafting Committee, it was decided that the Constitution would only stipulate who would hold citizenship “on the commencement of the Constitution”. This is also clear from the language and the substantive portions of the provisions included in Part II of the Constitution, which deals with Citizenship.

18. Article 5 of the Constitution deals with “Citizenship at the commencement of the Constitution”. The Article stipulates that every person who has their domicile in the territory of India will be a citizen of India at the commencement of the Constitution, if any of the following criteria is fulfilled:

19. Articles 6, 7 and 8 of the Constitution begin with a non-obstante clause, overriding the provisions of Article 5. Articles 6 and 7 recognise the largest migration in human history[28] following the partition of undivided India into India and Pakistan. Article 6 deals with the citizenship of those who migrated from Pakistan to India. The provision states that notwithstanding anything in Article 5, a person who migrated to the territory of India from Pakistan would deemed to be a citizen of India at the commencement of the Constitution if the following two conditions are satisfied[29]:

20. A brief historical background is necessary to understand the objective of this provision and in particular, the division of the migrants into two classes: those who migrated before and after 19 July 1948. The significance of the date 19 July 1948 can be traced to the provisions of the Influx from West Pakistan (Control) Ordinance 1948[31]. The West Pakistan Ordinance which came into force on 19 July 1948 introduced a system by which any person from West Pakistan could enter the territory of India only on the possession of a permit.[32] Thus, while persons who entered India before the permit system was introduced could become Indian citizens if they were domiciled in India, those who entered after the cut-off date had to satisfy the following criteria:

21. Article 394 provides when different provisions of the Constitution commence. The provision states that Article 394 and Articles 5,6,7,8,8,9,60,324,366,367,379,380,388,391,392 and 392 will come into force “at once” and the remaining provisions will come into force on 26 January 1950. The provision also states that the commencement of the Constitution, where used in the Constitution means 26 January 1950. In terms of Article 394, Article 6 came into force on “at once”, that is, immediately after the Constitution was adopted. The Constitution was adopted on 26 November 1949. Thus, for migrants after 19 July 1948 to secure citizenship in terms of Article 6, the application ought to have been filed before 26 January 1950. Since the application could only be filed if the person had resided in India for at least six months before that, the provision only covered those who migrated to India after 19 July 1948 but before 26 July 1949. The ad-hoc/temporary nature of the provision is evident from the provision itself. In addition to the use of the phrase ‘at the commencement of the Constitution’, the substantive portion also prescribes a temporal limit.

22. Article 6 grants citizenship to all persons who migrated from Pakistan to India till 26 July 1949. Article 7 carves out an exception to Article 6.[33] The provision stipulates that notwithstanding the provisions of Articles 5 and 6, any person who migrated from India to Pakistan after 1 March 1947 shall not deemed to be a citizen. 1 March 1947 signifies the date from when the intense communal violence broke out in India, particularly in Punjab.[34] Article 7 deals with re-migration. That is, the deeming citizenship conferred by Article 6 shall not apply to a person who before migrating from Pakistan to India had earlier migrated from India to Pakistan immediately after partition. The proviso to Article 7 provides an exception to those who remigrated to India under a ‘permit for resettlement or permanent return issued by or under the authority of any law’. According to the proviso, irrespective of the date when persons entered the Indian territory, it shall be deemed that they entered after 19 July 1948 for the purposes of Article 6(b). Thus, any person who falls under this category (migration must be completed between 1 March 1947 and before the commencement of the Constitution[35]) would have to register as citizens upon the submission of an application as prescribed by Article 6(b)(ii) of the Constitution.

23. Thus, the following conditions must be fulfilled to secure citizenship in terms of the proviso to Article 7:

24. The distinction between Article 6 and Article 7 is that the former provision does not specifically refer to the permit system while the latter does. Though the significance of the date 19 July 1948 is traceable to the permit system, Article 6 does not mandate that citizenship would be granted only if the person entered the Indian territory on a permit. As opposed to this, Article 7 provides citizenship only to those who entered India through a valid permit. Article 7, like Article 6 is temporary in nature because (a) persons covered by the proviso to Article 7 must have registered as a citizen under Article 6(ii)(b) which prescribes a time limit; and (b) the guarantee is dependent on a parliamentary legislation (that is, the permit must be issued under authority of law) which itself indicates that it is not a permanent code.

25. The legislation(s) which introduced the permit system must be referred to understand the scope of the proviso to Article 7. On 26 July 1949, the Governor General promulgated the Influx from West Pakistan (Control) Ordinance 1948. The Ordinance stipulated that persons can enter India from any place in West Pakistan only if they are in possession of permits. ‘Permit’ was defined as a permit for the time being in force issued or renewed by the prescribed authority after satisfying the described conditions relating to the class of permits to which it belongs.[36] The Central Government was conferred the power to issue rules, inter alia, prescribing the authorities by whom permits may be issued or renewed and the conditions to be satisfied for such permits. It is crucial to note that the Ordinance only applied to the influx from the part of Pakistan which lies to the west of India (that is, the present day Pakistan).[37] It did not apply to migrants from East Pakistan (that is, present day Bangladesh). On 7 September 1948, the Government of India in exercise of its power under the West Pakistan Ordinance issued rules for the implementation of the permit system. The rules introduced three kinds of permits: the permit for temporary visits, the permit for resettlement or permanent return and the permanent permit. The proviso to Article 7 only covers those who remigrated to India under the resettlement or permanent return permit.[38]

26. On 10 November 1948, the Governor General promulgated the Influx from Pakistan (Control) Ordinance 1948 by which a permit system was introduced for a person from ‘any’ place in Pakistan to enter India. This Ordinance introduced a permit system for persons entering India from East Pakistan also (that is, present day Bangladesh). The Ordinance also repealed the Influx from West Pakistan (Control) Ordinance 1948. The Pakistan (Control) Ordinance 1948 was repealed and replaced by the Influx from Pakistan (Control) Act 1949 which contained provisions pari materia to the Pakistan (Control) Ordinance 1948. Section 4 of the Influx from Pakistan (Control) Act 1949 conferred the Central Government the power to make Rules prescribing, among other things, the conditions to be satisfied by applicants for permits. On 20 May 1949, the Central Government issued Rules in exercise of the power conferred by Section 4. The Rules called the ‘Permit System Rules 1949’ prescribed elaborate provisions only regarding the permit system introduced between Western Pakistan (that is, current day Pakistan) and India. Though the Influx from Pakistan (Control) Act 1949 applied to the whole of Pakistan (including the current day Bangladesh), the Central Government did not frame any Rules to implement the permit system for the movement from East Pakistan to India.

27. The reason for not implementing the permit system for the migrants from East Pakistan to India was explained by Mr. Gopalaswami Ayyangar while introducing the Undesirable Immigrants (Expulsion from Assam) Bill 1950[39]. The Immigrants (Expulsion from Assam) Bill granted the Central Government, the power to expel persons who come into Assam. Mr. Ayyangar stated that the Central Government examined the suggestion to introduce a permit system between East Pakistan and India but decided against it because it would restrict the freedom of movement of a large number of persons who, in their ordinary avocations, had to pass between East Pakistan and either Assam or West Bengal.[40] Thus, the geographical placement of Bangladesh (East Pakistan) prevented the Indian Government from replicating the permit system that was applied for movement in the Western border. The proviso to Article 7 which dealt with persons who remigrated to India did not apply to those who came from East Pakistan because the permit system was not implemented there.

28. On 1 January 1952, the Influx from Pakistan (Control) Act was repealed[41] putting an end to the permit system governing the travel between West Pakistan and India. In October 1952, the India-Pakistan Passport and Visa Scheme regulated the travel between India and Pakistan. The scheme proposed a specific passport system between India and Pakistan.[42]

b. Section 6A of the Citizenship Act 1955 does not conflict with Articles 6 and 7 of the Constitution

29. It is in the above background that the argument of the petitioners that Section 6A is unconstitutional for prescribing a cut-off date different from the date in Articles 6 and 7 has to be decided. Two issues arise for the consideration of this Court: (a) whether Section 6A prescribes a cut-off date different from that prescribed by Articles 6 and 7 for migrants from Bangladesh to Assam; and (b) if (a) is in the affirmative, whether Article 11 of the Constitution confers Parliament with the power to ‘alter’ the provisions in Part II of the Constitution conferring citizenship.

30. The following position emerges from our discussion of Articles 5, 6 and 7 in the preceding section:

31. As opposed to Articles 6 and 7, Section 6A confers citizenship on those who migrated from Bangladesh to Assam until 24 March 1971. Article 6 and the proviso to Article 7 confer citizenship on a limited class. Section 6A deals with those who are not covered by the constitutional provisions, that is those who migrated (or remigrated) after 26 July 1949. The provision also covers those who migrated in the period covered by the constitutional provisions but who were not covered by the substantive stipulations in the provisions. For example, Article 6 does not cover a person who migrated from east Pakistan to Assam after 19 July 1948 but did not apply to register as a citizen before the commencement of the Constitution. Section 6A confers citizenship on such persons. There is thus, a certain degree of overlap between Section 6A and the constitutional provisions. However, that does not amount to an ‘alteration or amendment’ of the constitutional provisions. This is for the simple reason that Article 6 and the proviso to Article 7 confer citizenship on the ‘commencement of the constitution’. That is, they only deal with who shall be citizens on 26 January 1950. In contrast, Section 6A confers citizenship from 1 January 1966 to those who migrated before that date. Those who migrated between 1 January 1966 and 24 March 1971, are conferred citizenship upon the completion of ten years from the date of detection as a foreigner. Thus, Section 6A confers citizenship on a later date to those who are not covered by Articles 6 and 7. Section 6A could be interpreted to alter or amend Articles 6 and 7 only if it conferred citizenship retrospectively, as at the commencement of the Constitution which is not the case.

c. The scope of Article 11 of the Constitution

32. Article 11 stipulates that the provisions of Part II shall not ‘derogate’ from the power of Parliament to make any provision with respect to (a) acquisition of citizenship; (b) termination of citizenship; and (c) all other matters relating to citizenship:

33. Article 10 is also related to Parliament’s law making power on citizenship. The provision provides that every person who is or is deemed to be a citizen under the provisions of Part II of the Constitution shall continue to be so, subject to the provisions of any law made by Parliament:

34. Article 246[43] read with Entry 17 of List I of the Seventh Schedule to the Constitution confers Parliament the power to make laws with respect to ‘citizenship, naturalisation and aliens’. What then is the purpose and scope of Article 11? The earlier draft of Article 11 read as follows:

When the draft of Article 11 read as above, there was also a provision on who would hold citizenship ‘after’ the commencement of the Constitution.[44] Thus, in the earlier scheme, the Constitution was to stipulate the conditions for securing citizenship and Parliament was conferred with the power to make ‘further’ provisions. However, the Draft Constitution of India 1948 did not consist of a provision on acquisition of citizenship after the commencement of the Constitution. Part II of the Draft Constitution only consisted of provisions on citizenship at the commencement of the Constitution and Parliament’s power to make “further” provisions.[45] Dr BR Ambedkar introduced an amendment to draft Article 6 (as Article 11 exists in the current form) when it was taken up for discussion. The phrase “further provision” was used when the Draft dealt with the acquisition of citizenship after the commencement of the Constitution. However, once that was deleted, the language of Article 11 was amended.

35. Article 246 read with the Seventh Schedule delimits the legislative competence of Parliament and the legislature of the States. The inference that can be drawn from the inclusion of Entry 17 in List I of the Seventh Schedule is that Parliament (and not the state legislatures) has the legislative competence to enact laws with respect to citizenship. The legislative subject to enact laws on citizenship is thus, traceable to Entry 17. Provisions of Part II (Articles 10 and 11, in particular) do not confer Parliament the power to enact laws relating to citizenship. The provisions operate in a different sphere. The provisions clarify the scope of the legislative power.

36. The question is whether Parliament’s power under Article 11 is restricted by other provisions in Part II. The provision stipulates that “nothing in the foregoing provisions of this Part”, meaning Articles 5-10, shall derogate from the power to make any provision with respect to citizenship. The word ‘derogate’ may have two meanings: (a) to diminish or reduce; and (b) to diverge or depart.[46] The phrase “derogate” is used in six other instances in the Constitution. In one of the instances (Article 13[47]), the phrase takes the meaning of diverge or depart. In all the other usages,[48] the provision takes the meaning of ‘diminish or reduce’.

37. The distinction between a non-obstante clause and the words ‘shall not derogate from’ lies in the fact that the former is used as an expression providing overriding effect while the latter is used as a clarificatory expression. The non-obstante clause is used when there is a link between two clauses/provisions and the link is sought to be detached by carving out an exception. For example, if the provision states that notwithstanding A, B has the power to do action C, it means that the provision confers power on B to do C, and this is an exception to provision A. In contrast, the phrase ‘shall not derogate from’ is used to indicate that certain provisions do not reduce the effect or scope of the provision, thereby, de-linking the two provisions. For example, a provision which states that A shall not derogate B’s power to do C is used when B’s power to do C is conferred elsewhere and it is clarified that the scope of A and the scope of B do not overlap. This is evident on an analysis of the provisions which use the phrase ‘shall not derogate’. The usage indicates that (a) the Constitution confers power elsewhere; and (b) another provision does not override or in any manner impact the power. For example:

38. Thus, the use of the phrases ‘notwithstanding’ and ‘shall not derogate from’ produce different effects. Article 11, when interpreted on the basis of the above analysis produces the following meaning:

39. A non-obstante clause cannot be artificially read into Article 11. In Izhar Ahmed vs. Union of India[50], the constitutional validity of Section 9(2) of the Citizenship Act and Rule 3 in Schedule III of the Citizenship Rules 1956 were challenged. Before dealing with the challenge, Justice Gajendragadkar writing for the Constitution Bench delineated the scope of the provisions in Part II of the Constitution. With respect to Article 11, the learned Judge observed that the provisions of the parliamentary law on citizenship cannot be challenged on the ground of a violation of the provisions in Part II. The relevant part of the observations is extracted below:

40. By the above observations, the Court did not read in a non-obstante clause in Article 11. This is clear from the observations in the subsequent paragraph where this Court discusses the alleged conflict between Article 9 of the Constitution and Section 9 of the Citizenship Act. Section 9 of the Citizenship Act provides that any person who has acquired citizenship of another country between the commencement of the Constitution and the commencement of the Act shall cease to be a citizen of India. While dealing with Section 9, this Court observed that Article 9 dealt with the acquisition of citizenship of a foreign State prior to the commencement of the Constitution. As opposed to Article 9, Section 9 dealt with the acquisition of citizenship after the commencement of the Constitution.[51] Thus, the possibility of the provisions of parliamentary law conflicting with Article 9 (and other provisions of the Constitution) would not arise.[52] In Izhar Ahmed (supra), the observations that statutory provisions on citizenship cannot be challenged on the ground of violation of provisions in Part II cannot be interpreted as a reading in of a non-obstante clause in Article 11. Provisions of the Parliamentary law on citizenship cannot be challenged on the ground of violation of the provisions of Part II because the constitutional provisions on citizenship are redundant for all purposes after the commencement of the Constitution. Though in the context of Article 11 the use of the non-obstante clause and the phrase ‘shall not derogate from’ will produce the same result, it is important to clarify the distinct usage of the phrases.

41. Similarly, the reason that Article 11 does not include a clause (similar to Article 4(2)) that the law shall not be deemed to be an amendment of the Constitution for the purpose of Article 368 is because there is no possibility of the law amending the constitutional provisions in Part II in view of the temporal limit of all the provisions.

42. In view of the discussion above, I have reached the following conclusions: (a) Section 6A of the Citizenship Act does not have the effect of amending Articles 6 and 7; and (b) Article 11 is not a non-obstante clause. However, since the Constitution confers citizenship only at the commencement of the Constitution, the law enacted in exercise of the power under Article 246 read with Entry 17 of List I and the constitutional provisions on citizenship operate in different fields.

ii. Section 6A is not violative of Article 14 of the Constitution

43. The petitioners submitted that Section 6A is violative of Article 14 on three grounds: (a) Section 6A is under-inclusive because it confers citizenship only to migrants to Assam; (b) there was no justification to single out Assam to the exclusion of other border States that border Bangladesh since they all form a homogenous class; and (c) the provision prescribes a different cut-off date for granting citizenship to migrants who enter Assam as opposed to other States.

44. Thus, while deciding the Article 14 challenge, this Court must decide on the following three issues:

45. In this section, I will discuss the provisions of the Citizenship Act, in particular the provisions relating to migrants of Indian origin. There was a legal limbo on the acquisition of citizenship between the commencement of the Constitution and the enactment of the Citizenship Act in 1955. Parliament enacted the Citizenship Act to provide for the acquisition and determination of Indian citizenship. The Citizenship Act provides the following methods for acquiring citizenship, namely by: (a) birth[53]; (b) descent[54]; (c) registration[55]; (d) naturalisation[56]; and (e) incorporation of territory[57]. Section 5(1) provides a fairly simple and easy method for acquiring citizenship. Citizenship could be acquired through registration if any of the following conditions are satisfied:

According to the provision, a person shall be deemed to be of Indian origin if he, or either of his parents, or of his grand-parents were born in undivided India.[58] Thus, refugees from either West or East Pakistan would undoubtedly be covered within the meaning of the word ‘Indian origin’. Section 5(1) creates two classes with respect to persons of Indian origin. Section 5(1)(b) deals with persons of Indian Origin who are ordinarily resident in undivided India. Any person of Indian Origin who is an ordinary resident of any country other than West and East Pakistan can acquire citizenship through registration in terms of Section 5(1)(b). Indian origin migrants from either West or East Pakistan who were ordinarily resident in India for six months could acquire citizenship through registration in terms of Section 5(1)(a). Section 5(1)(e) enables a citizen of any of the countries listed in the First Schedule of the Act to acquire citizenship through registration. Pakistan was one of the countries listed in the Schedule. Section 5(1)(e) read with the First Schedule enabled a migrant who was a citizen of Pakistan to acquire citizenship. Thus, migrants from Pakistan could acquire citizenship in terms of Section 5(1)(a) and Section 5(1)(e).

46. In exercise of the power conferred by Section 18 of the Citizenship Act, the Central Government notified the Citizenship Rules 1956[59]. The 1956 Rules prescribed a form in which an application for registration as a citizen of India under Section 5(1)(a) would have to be made. The form requested the submission of, inter alia, passport and visa details, if any.[60] The form had a separate part (Part II) for migrants from Pakistan. It requested, inter alia, the following details: (a) profession or occupation while residing in Pakistan; (b) whether the applicant applied for long term visa for permanent resettlement earlier; (c) whether the applicant was residing in the territory now included in India or Pakistan at the time of partition; and (e) places of residence in India prior to migration. The 1956 Rules (in particular the details required in the Part II of Form I) make it clear that migrants from East and West Pakistan could apply for citizenship under Article 5(1)(a). Even before the 1956 Rules were framed, the Deputy Secretary (Home Affairs) issued ‘urgent’ instructions to the various state governments directing them to make ‘immediate arrangements for registration of ‘displaced persons’ under Section 5(1)(a) of the Citizenship Act.[61] In 1958, another notification was issued by the Ministry of Home Affairs that it was not necessary to insist on acceptance of surrender of Pakistani passports before registration is made.[62] In a reply issued in 1958 to a query, the Ministry of Home Affairs also clarified that authorities can register minorities without Pakistani passports or travel documents.[63] Thus, Section 5(1)(a) along with the 1956 Rules and the various executive notifications facilitated the registration of migrants (including undocumented migrants) from East and West Pakistan as citizens. The 1956 Rules did not prescribe Rules for registration under Section 5(1)(e) of the Citizenship Act. Irrespective of the manner in which Section 5(1)(a) and Section 5(1)(e) of the Citizenship Act were implemented, the provisions enabled the registration of both documented and undocumented migrants to India from East and West Pakistan.

47. In fact, the Citizenship Act was viewed by the members of the Parliament as an enactment that would put an end to the limbo on granting citizenship to migrants from East and West Pakistan. Sentiments that refugees should not even be required to register also prevailed in Parliament. Thakurdas Bhargava noted that “registration is only for those who are not real citizens of India nor are rooted in the land of India not having a domicile in this country, not wanting to return to any other country.”[64] HN Mukherjee, a member from north-east Calcutta claimed that registration would involve substantial cost and travel which would create difficulties for refugees.[65]

48. In National Human Rights Commission v. State of Arunachal Pradesh[66], proceedings under Article 32 were initiated, inter alia, claiming that the citizenship applications under Article 5(1)(a) of persons belonging to the Chakma group were not being processed. The people belonging to the Chakmas were migrants from Bangladesh. The Union Government had conveyed its decision to confer citizenship to persons belonging to the Chakma group under Section 5(1)(a) of the Citizenship Act. A three-Judge Bench observed that they can seek citizenship under Article 5(1)(a) and directed that the applications must be forwarded by the Collector to the Registering Authority. In Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh v. State of Arunachal Pradesh[67], proceedings under Article 32 were instituted requiring the State to comply with the earlier directions on grant of citizenship to Chakma and Hajong refugees who migrated from Assam to Arunachal Pradesh. The petition was allowed directing the Government of India and the State of Arunachal Pradesh to finalise the conferment of citizenship rights to persons of the Chakmas and Hajong groups.[68]

49. This was the position of law until the enactment of the Citizenship (Amendment) Act 2003[69] which was notified on 7 January 2004. The 2003 Citizenship Amendment Act amended Section 2(1)(b) to define the term illegal migrant[70]. An illegal migrant was defined to mean a foreigner who entered India (a) without a valid passport or other travel documents prescribed by law; or (b) with a valid passport and travel documents but has overstayed. The 2003 Amendment Act also amended Sections 5 and 6 of the Act to exclude illegal immigrants from acquiring citizenship by naturalisation and registration. Sections 5 and 6 of the Citizenship Act, after the amendments introduced by the 2003 Amendment Act now expressly bar illegal migrants from acquiring citizenship by registration or naturalisation.[71] In addition to the amendments excluding illegal immigrants, the enactment also deleted Section 5(1)(e) which permitted the registration by citizens of countries specified in the First Schedule.

50. It is clear from the above discussion that undocumented migrants could be registered as Indian citizens under the Citizenship Act until the enactment of the 2003 Amendment Act which came into force on 3 December 2004 by which the class of ‘illegal immigrants’ was excluded from acquiring citizenship.

b. The legal regime governing migrants from East and West Pakistan to Assam

51. The legal regime on citizenship must be read alongside other laws that deal with migrants. On 23 November 1946, the Foreigners Act 1946[72] was enacted to confer upon the Central Government certain powers in respect of foreigners. A ‘foreigner’ was defined as a person who is not a natural born British subject as defined in Sub-sections (1) and (2) of Section 1 of the British Nationality and Status of Aliens Act of 1914 or who was not granted a certificate of naturalization as a British subject under Indian law.[73] Section 3 conferred the Central Government the power to make provisions for prohibiting, regulating or restricting the entry of foreigners to India.[74] In exercise of the power under Section 3, the Central government notified the Foreigners Order 1948[75]. In terms of the Foreigners Order, foreigners can enter India only at such port or other place of entry on the borders of India as the registration officer having jurisdiction at that port or place may appoint.[76] The Order also provides that a foreigner can enter only with the leave of the civil authority having jurisdiction[77] and leave will be refused if the foreigner is not in possession of a valid passport or visa[78]. Thus, every migrant without a valid visa, irrespective of the country from which they migrated and the Indian State to which they have migrated, was refused permission to enter India.

52. However, the Foreigners Act when it was enacted did not apply to migrants from West and East Pakistan since they were also British subjects. The definition of ‘Foreigner’ in the Act was amended by Act 11 of 1957 to mean a person who is not a citizen of India. This amendment came into force from 19 January 1957.[79] Thus, until 1957, the Foreigners Act which provided the Central Government with the power to remove a migrant without legal documentation from the soil of India did not apply to migrants from West and East Pakistan. However, even before the immigrants from West and East Pakistan were considered ‘foreigners’ for the purpose of the Foreigners Act, Parliament enacted the Immigrants (Expulsion from Assam) Act 1950. The Statement of Objects and Reasons states that the Immigrants (Expulsion from Assam) Act 1950 was enacted to deal with the large scale immigration of migrants from East Bengal to Assam:

53. The enactment granted the Central Government the power to remove any person or class of persons who came into Assam and whose stay is detrimental to the interests of Assam[80]. The enactment carved out an exception with respect to any person who was displaced from any area in Pakistan (which includes the present day Pakistan and Bangladesh) on account of civil disturbances or the fear of it.[81] It is crucial to note that this Act only applied to immigrants in Assam and not the rest of India. Shri Gopalaswami, while introducing the Bill, explained the objective for singling out Assam as follows:

54. The earlier draft of the Bill did not include an exception for ‘refugees’ from East and West Pakistan. However, members of Parliament felt that the enactment must only cover those who migrate for “economical” reasons and not refugees who migrate because of civil disturbance caused due to the political instability in the aftermath of the partition.[82] The Parliamentary debates on the Bill elucidate that: (a) there were more migrants from Bangladesh because of the absence of a permit system for travel between East Pakistan and India; and (b) the influx was most profound in the Indian State of Assam compared to the other bordering states. It is crucial to note that the Immigrants (Expulsion from Assam) Act 1950 was enacted because the Foreigners Act did not include immigrants from Pakistan.[83]

55. The provisions of the Foreigners Act before the amendment in 1957 and the Immigrants (Expulsion from Assam) Act 1950 indicate the lenient policy of India towards the refugees of West and East Pakistan in the aftermath of the partition of

India. This must be read along with the legal regime governing citizenship in India upon the enactment of the Citizenship Act, 1955 that permitted the registration of migrants from East and West Pakistan as citizens.

56. However, the huge influx of migrants from East Pakistan to Assam was not receding. On 25 December 1983, the Illegal Migrants (Determination by Tribunals) Act 1983[84] came into force. The preamble to the Act stated that the Act provided for the establishment of Tribunals to determine illegal immigrants. The Act was deemed to have come into force in Assam on 15 October 1983 and in any other State on such date as may be notified by Central Government.[85] Thus, unlike the Immigrants (Expulsion from Assam) Act 1950, the IMDT Act applied to the whole of India. Section 3(c) of the IMDT Act defined an illegal migrant as a person who has satisfied each of the following criteria (a) entered India on or after 25 March 1971; (b) is a foreigner; and (c) entered India without being in possession of a valid passport or other travel document or any other lawful authority. The date on which a person becomes an illegal immigrant according to the IMDT Act, that is 25 March 1971 is the same as the date prescribed in Section 6A of the Citizenship Act for acquiring citizenship. Section 4 gave the IMDT Act overriding effect notwithstanding anything in the Passport (Entry into India) Act 1920, the Foreigners Act 1946, the Immigrants (Expulsion from Assam) Act 1950 or the Passports Act 1967. In terms of Section 1, the Act applies to the whole of India. The Central Government in exercise of the power under Section 1 of the Act, however, did not enforce the Act in any other Indian State. The special provisions in the form of the Immigrants (Expulsion from Assam) Act 1950 and the IMDT Act clearly elucidate that the huge influx of migrants from Bangladesh to Assam has always been a ’cause for concern’ and Parliament has taken steps to address the issue previously.

57. The above discussion of the provisions governing migrants, and in particular, migrants from Bangladesh elucidates the balance that Parliament has sought to draw between its humanitarian view towards migrants of Indian origin from Bangladesh and the impact of the huge influx on the economic and cultural resources of Indian States. With this background, I proceed to determine the constitutional validity of Section 6A on the anvil of Article 14.

c. The scope of judicial review under Article 14

58. Before I proceed to deal with the issues, it is necessary that I summarise the scope of judicial review under Article 14. Courts have traditionally tested laws and executive actions for violation of Article 14 on the grounds of unreasonable classification[86] and arbitrariness[87]. Courts have adopted the two-prong test for unreasonable classification[88] and the manifest arbitrariness standard[89]. In Association for Democratic Reforms v. Union of India[90], writing for three other Judges of the Constitution Bench, I explained that the test of manifest arbitrariness includes the following two applications:[91]

These two applications have in the past also been subsumed in the traditional two-prong Article 14 analysis. In State of West Bengal v. Anwar Ali Sarkar[92], Justice S R Das observed that there must be a yardstick to differentiate those included in and excluded from the class.[93] Since then, in addition to inquiring if there is a yardstick, this Court has also adopted a more intensive analysis of the yardstick adopted in the backdrop of constitutional values and provisions. For example, in the context of determining the backward class for the purpose of Article 15(4), this Court has held that a yardstick which measures social backwardness must be adopted.[94] The degree of scrutiny of the yardstick used hinges on the nature of the right alleged to be violated. For example, the legislature has a greater latitude to choose the yardstick for classification in fiscal matters.[95] However, the Court has adopted a stringent standard in determining the ‘rationality’ of the yardstick in matters which deal with constitutional rights.[96] The standard of review to be adopted by courts must thus depend on the nature of the right which is alleged to be infringed.

59. A classification is constitutionally permissible if the following two prong test is satisfied: First, there must be an intelligible differentia between those forming a group and those left out. Second, the differentia must have a reasonable nexus with the object sought to be achieved. The Court now, within the traditional two-prong test has advocated for a more substantial inquiry that subsumes the following prongs:

d. The scope of judicial review of under-inclusive provisions

60. To determine if Section 6A is violative of Article 14 on the ground of underinclusiveness, the scope of judicial review on the ground of under-inclusion first needs to be set out.

61. A provision is under-inclusive if it fails to regulate all those who are part of the problem that the legislature seeks to address and is over-inclusive if it regulates somebody/something that is not a part of the problem.[104] That is, underinclusiveness and over-inclusiveness depends on whether those who are similarly situated have not been included or those who are not similarly situated have been included. In State of Gujarat v. Ambica Mills[105], this Court dealt with the argument of under-inclusiveness for the first time. In this case, the definition of the phrase ‘establishment’ in the Bombay Labour Welfare Fund Act 1953 was challenged on the ground of under-inclusiveness. The enactment defined an ‘establishment’ to mean (a) a factory; (b) a tramway or motor omnibus service; and (c) any establishment including a society or a trust which employs more than fifty persons but not to include an establishment (not being a factory) of the Central or State Government. The enactment provided for the constitution of a Fund to finance activities to promote labour welfare. The definition of ‘establishment’ was challenged for being under-inclusive since it excluded places that employed less than fifty persons.

62. Justice K K Mathew, writing for the Constitution bench observed that to identify if a provision is under-inclusive or over-inclusive, the Court must determine if all persons similarly situated for the purpose of law have been grouped.[106] This Court observed that while dealing with a challenge on the ground of underinclusiveness, the administrative convenience of the State must be taken into consideration. The learned Judge referred to the observations of Justice Oliver Wendell Holmes in Missouri Kansas & Texas Railway v. May[107] that the Courts must be deferential to under-inclusive legislation.

63. On the facts of the case, Justice Mathew observed that the justification of the State for under-inclusion, that unpaid accumulations will be less in establishments which employ less than fifty persons and it would not be sufficient to meet administrative costs, was fair and reasonable.[108] In Ambica Mills (supra), this Court tested whether the under-inclusiveness was justified.

64. The reference to Missouri Kansas & Texas Railway (supra) must not be read detached from the context.[109] In multiple places in the judgment, this Court observed that a deferential approach must be adopted in challenges to laws dealing with economic activity.[110] This is also evident from the manner in which this Court dealt with the argument of over-inclusion. It was contended that the definition of ‘establishment’ was over-inclusive because it included tramways and omnibuses The Court rejected the argument on the ground that judicial deference must be shown in challenges dealing with economic policy.[111] Thus, the observations of this Court in Ambica Mills (supra) on judicial deference to under-inclusive provisions must be read in light of the established position of this Court that it must defer in matters relating to economic policy[112].

65. In Missouri Kansas & Texas Rly (supra), the constitutional validity of a Texas Statute[113] imposing penalty on railroad companies for permitting the spread of Johnson grass and Russian thistle was challenged. The law was challenged on the ground that it was under-inclusive since it only penalised railroad companies to the exclusion of others. Justice Holmes writing for the majority of the US Supreme Court observed that Court should interfere only when there is no fair reason for the under-inclusion. The Court then identified numerous reasons for why the Railway Company may be singled out when compared to owners of farms who have an element of self-interest.[114] Thus, Missouri Kansas & Texas Rly (supra) is also not an authority for the proposition that the scope of judicial review for under-inclusive law is limited.

66. The degree of judicial deference to any provision, including under-inclusive provisions depends on the subject matter of the case. In Joseph Shine v. Union of India[115], the constitutional validity of Section 497 of the Indian Penal Code 1860 was challenged on the ground of violation of Articles 14 and 15. Section 497 defined the offence of adultery as when a person has sexual intercourse with a woman, whom he knows or has reason to believe to be the wife of another man, without the consent of that man. One of the contentions was that the provision was under-inclusive since it only dealt with a situation where a man had sexual intercourse with a married woman without the consent of the husband but not the other way around, that is a woman having sexual intercourse with a married man without the consent of his wife. The Constitution Bench tested the provision by applying a high standard of review. This Court held that there was no rational yardstick for the classification[116] and that the yardstick was steeped in gender stereotypes where a woman is considered to not have any agency[117]. In my concurring opinion, I noted that the problem with Section 497 was not just its ‘under inclusion’ but the impact of the under-inclusion of subjugating a woman to a position of inferiority.[118] A high standard of scrutiny was applied to test the validity of an under-inclusive provision.

67. In Basheer v. State of Kerala[119], the constitutional validity of the proviso to sub-Section (1) of Section 41 of the Narcotic Drugs and Psychotropic Substances (Amendment) Act 2001[120] was under challenge. By the 2001 Amendment, the sentence for offences under the NDPS Act was altered. Section 41, included by the 2001 Amendment, provided that the amended provisions shall apply to all pending cases before the court as on 2 October 2001 and all cases under investigation. The proviso to the provision excluded cases pending in appeal. The exclusion of the category of cases in the proviso was challenged on the ground of under-inclusiveness. Justice B N Srikrishna, writing for the two-Judge Bench observed that the classification could not be held to be unreasonable due to ‘marginal over-inclusiveness or under-inclusiveness’.[121] This principle flows from the established judicial position that Article 14 does not require classifications with ‘mathematical precision’.[122] This observation does not lead to the conclusion that under-inclusive provisions must be met with judicial deference. In Basheer (supra), this Court observed that the guiding principle of the provision was the conclusion of the trial since the application of the amended provision to pending appeals would reopen concluded trials.[123] In this case, the court determined the yardstick of classification based on the reading of the provision(s) and observed that the yardstick was reasonable. Based on the yardstick, it was concluded that there was no case for under-inclusion.

68. The following principles emerge from the discussions above:

e. The legislative objective of Section 6A of the Citizenship Act

69. The preamble to the Citizenship (Amendment) Act 1985 by which Section 6A was included states that the amendment was made for the “purpose of giving effect to certain provisions of the Memorandum of Settlement relating to the foreigners issue in Assam (Assam Accord) which was laid before the Houses of Parliament on the 16th day of August 1985.” The Assam Accord was entered into in the backdrop of numerous agitations led by All Assam Students Union[124] and All Assam Gana Sangram Parishad[125] against the migration from Bangladesh to Assam. The movement saw foreigners as a threat to Assamese political power and as contenders of the scarce economic opportunities.[126] In January 1980, the student leaders met Ms Indira Gandhi, the then Prime Minister of India for negotiation talks and demanded the detection and deportation of foreigners who had come to live in Assam since 1951.[127] On 15 August 1985, the Union Government and the leaders of the movement signed the Assam Accord.[128]

70. The preamble to the Accord stipulates that the settlement was reached “keeping all aspects of the problem including constitutional and legal provisions, international agreements, national commitments and humanitarian consideration”. On the foreigners issue, the following settlement was arrived at:

71. The provisions of Section 6A of the Citizenship Act are traceable to the Assam Accord. The Assam Accord, as explained above, was a political settlement between the Union of India (‘the executive’) and students groups in Assam. In an Article 14 challenge to a legislative provision, the court must identify the ‘legislative’ objective. The objective, against which this Court must test the validity of the law must be identified based on the circumstances surrounding the Assam Accord and the enactment of the legislation. Section 6A was included with the objective of reducing the influx of migrants to India and dealing with those who had already migrated. The Assam Accord was a political solution to the issue of growing migration and Section 6A was a legislative solution. Section 6A must not be read detached from the previous legislation enacted by Parliament to deal with the problem of influx of migrants of Indian Origin that I have traced in the preceding sections. Section 6A is one more statutory intervention in the long list of legislation that balances the humanitarian needs of migrants of Indian Origin and the impact of such migration on economic and cultural needs of Indian States.

f. Section 6A is not violative of Article 14

72. Section 6A confers citizenship to migrants from Bangladesh to Assam before 25 March 1971. Two yardsticks are discernible from Section 6A: (a) migrants must have entered Assam; and (b) the entry of migrants must be before the cut-off date of 25 March 1971. It first needs to be determined if the above two yardsticks are reasonable, have a nexus with the object and are in compliance with constitutional principles.

73. Parliament, even before the enactment of the Citizenship (Amendment) Act 1995 has treated migration to the State of Assam as a cause of concern. Previous sections of this judgment trace the enactment of the Immigrants (Expulsion from Assam) Act 1950 and the IMDT Act which dealt with the specific problem of undocumented migration to Assam. The Central Government could have extended the application of the IMDT Act to any other State by a notification. However, no such notification was issued indicating that the immigration to Assam presented the Union with a unique problem in terms of magnitude and impact. Though other states such as West Bengal (2216.7 km), Meghalaya (443 km), Tripura (856 km) and Mizoram (318 km) share a larger border with Bangladesh as compared to Assam (263 km), the magnitude of influx to Assam and its impact on the cultural and political rights of the Assamese and Tribal populations is higher. The data submitted by the petitioners indicates that the total number of immigrants in Assam is approximately forty Lakhs, fifty seven Lakhs in West Bengal, thirty thousand in Meghalaya and three Lakh and twenty five thousand in Tripura.[129] The impact of forty lakh migrants in Assam may conceivably be greater than the impact of fifty seven lakh migrants in West Bengal because of Assam’s lesser population and land area compared to West Bengal.

74. Similarly, the cut-off date of 25 March 1971 is also rational. Even before the enactment of Section 6A, the IMDT Act defined an ‘illegal immigrant’ as a person who entered India on or after 25 March 1971 without travel documents. As noted above, the IMDT Act was not specific in its application to Assam. The enactment defined the phrase illegal immigrant for all States though the Central Government did not extend the provisions of the Act to other States. On 25 March 1971, the Pakistani Army launched Operation Search Light to curb the Bengali nationalist movement in East Pakistan.[130] The migrants before the operation were considered to be migrants of partition towards which India had a liberal policy. Migrants from Bangladesh after the said date were considered to be migrants of war and not partition. Thus, the cut-off date of 25 March 1971 is reasonable.

75. Having held that both the cut-off date and the singling out of Assam is based on rational considerations, the next question is whether the yardsticks have a rational nexus with the object of the provision. The answer is in the affirmative. Since the migration from East Pakistan to Assam was in great numbers after the partition of undivided India and since the migration from East Pakistan after Operation Search-Light would increase, the yardstick has nexus with the objects of reducing migration and conferring citizenship to migrants of Indian origin. Section 6A would be under-inclusive only when all those who are similarly situated with respect to the object and on the application of the rational yardstick are not included. Similarly, the provision would be over-inclusive only when those who are not similarly situated with respect to these two parameters are included. That not being the case, Section 6A is neither under-inclusive nor over-inclusive.

76. Over-inclusiveness and under-inclusiveness must be determined based on whether there are similarly situated persons/situations who or which have not been included or have been included based on the yardstick identified. The determination cannot be made with reference to the objective without a reference to the yardstick. Doing so would limit the ability of the Legislature to identify the degrees of harm. The yardstick can be challenged where another yardstick affects or is related to the objective in a comparable manner.[131]

77. The last question which is required to be considered is whether granting ‘citizenship’ has any relevance to the problem identified, that is, migration crisis. It was submitted that if Assam is facing a migration crisis, the State must focus on removing the migrants instead of conferring them citizenship. To elucidate this point, the petitioners submitted that undocumented migrants in other States will not receive the benefit of citizenship and this would lead to a situation where migrants in other states would also move to Assam to secure the benefit of citizenship. This, it has been argued would not satisfy the object of the provision.

78. In the preceding section of this judgment, I have held that the Citizenship Act and the notifications issued by the Ministry of Home Affairs allowed the acquisition of citizenship by undocumented citizens through registration under Section 5(1)(a). This was the position until Section 5(1) was amended by the 2003 Amendment Act to exclude applications from ‘illegal immigrants’. Thus, the claim that undocumented migrants to other Indian States were not able to secure citizenship is erroneous. Section 6A carves out an exception in that regime for the State of Assam for the reasons discussed above. Even otherwise, conferring citizenship has a nexus since the legislative object of introducing Section 6A was not just to deal with the migration from Assam but to balance it with humanitarian considerations (including conferment of citizenship) for partition refugees.

iii. The challenge under Article 355

79. The petitioners urged that Section 6A violates Article 355 of the Constitution because: (a) Article 355 casts a duty on the Union to prevent external aggression; (b) the expression “external aggression” has been construed a three-Judge Bench in Sarbananda Sonowal v. Union of India[132] to include aggression caused due to external migration; and (c) Instead of preventing external migration, Section 6A induces more migration into Assam. The judgment in Sarbananda Sonowal (supra) was cited to support the submission that the constitutional validity of a provision can be challenged for violation of Article 355.

80. Article 355 provides that it is the duty of the Union to protect States against external aggression and internal disturbance and ensure that the Government of every State is carried on in accordance with the provisions of the Constitution.[133] In Sarbananda Sonowal (supra), proceedings were initiated under Article 32 to challenge the constitutional validity of the IMDT Act and the Illegal Migrants (Determination by Tribunals) Rules 1984[134]. Their validity was challenged on the ground that the enactment and Rules which dealt with the detection of undocumented migrants in Assam were not as effective as the Foreigners Act which applied to the rest of India. A three-Judge Bench of this Court allowed the writ petition and struck down the provisions of the IMDT Act and the IMDT Rules.

81. This Court observed that the Union has a constitutional obligation (or ‘duty’) to protect states from external aggression in view of Article 355. The three-Judge Bench held that the expression ‘aggression’ in Article 355 is of wide import and includes actions other than war, such as the inflow of a large number of persons from a neighbouring country[135]. Referring to the Report of Lt. Colonel SK Sinha, the Bench observed that migration from Bangladesh to Assam has led to an alteration of the demographic pattern of the State, thereby reducing the Assamese into a minority in their own State. The Bench noted that since the State of Assam is facing “external aggression and internal disturbance” due to large-scale illegal migration of Bangladesh nationals, the Court must determine if the Union had “taken any measures for that purpose” in view of the constitutional mandate under Article 355.[136] This Court then held that the IMDT Act and IMDT Rules are unconstitutional for violating Article 355:

82. The IMDT Act and Rules were held to be unconstitutional on the following grounds:

83. In addition to the violation of Article 355, this Court also found the IMDT Act and Rules to be violative of Article 14 on the ground that if the purpose was to control the influx of Bangladeshi migrants to Assam, provisions which are more stringent would have to be made. This Court noted that, the provisions of the IMDT Act and Rules were more lenient than the Foreigners Act which applied to the rest of India, where the problem was not as grave as in Assam.[140] Thus, this Court held that there was no nexus between the object sought to be achieved and the means adopted by the enactment and Rules.

84. In Naga People’s Movement of Human Rights v. Union of India[141], the constitutional validity of the Armed Forces (Special Powers) Act 1958[142] and the Assam Disturbed Areas Act 1955 was under challenge. ASFPA was enacted to confer special powers upon the members of the armed forces in the disturbed areas in Assam and Manipur. In terms of the Act, the Governor of the State had the power to issue a notification declaring the whole or any part of the State to which the Act applies as a disturbed area.[143] The Act was amended by Act 7 of 1972 by which the power to issue a notification was also conferred on the Central Government. The Statement of Objects and Reasons of the amendment Bill stated that it was important that the power to issue notifications is extended to the Central Government (in addition to the Governor) in view of the duty cast on the Union by Article 355.[144] One of the contentions of the petitioners for challenging the constitutional validity of the enactment was that Parliament has the competence to enact laws with respect to ‘armed rebellion’ only in exercise of emergency powers under Articles 352 and 356[145]. The Constitution Bench rejected this argument. Justice Agarwal, writing for the Bench observed that AFSPA was enacted to enable the Central Government to discharge its obligation under Article 355. The learned Judge observed that a proclamation under Article 356 has grave consequences and thus, it was open to Parliament to deal with external aggression and internal disturbances through legislation before the Governor exercises powers under Article 356.[146] Further, this Court also observed that the power of the Central Government to issue a notification under AFSPA does not violate the federal structure in view of Article 355.[147]

85. In Naga People’s Movement of Human Rights (supra) and Sarbananda Sonawal (supra), this Court referred to Article 355 for the purpose of emphasising that one of the duties that is cast upon the Union is to protect States against external aggression and internal disturbance. In Naga People’s Movement of Human Rights (supra), the legislative object of the 1972 amendment to ASFPA was traced to Article 355. Similarly, in Sarbananda Sonawal (supra), the legislative object of the IMDT Act and the IMDT Rules was traced to Article 355.

Though the three-Judge Bench in paragraph 67 of the judgment held that the IMDT Act and Rules were unconstitutional for violation of Article 355 of the Constitution, the scrutiny of the legislation and Rules was on Article 14 grounds. The reasons summarised in paragraph 82 of this judgment elucidate that the framework of analysis was limited to a comparison of the provisions of the IMDT Act and Rules (applicable to Assam) and the Foreigners Act (applicable to the rest of India). On a comparison of the provisions, it was found that the provisions of the Foreigners Act were more effective for achieving the object (that is, the detection of migrants). The Court held the IMDT Act and the IMDT Rules unconstitutional on the ground that: (a) Undocumented immigrations impacted Assam on a much larger scale as compared to the other States in India.; (b) Since the State of Assam faces a graver problem, the provisions of the IMDT Act and the IMDT Rules ought to be more stringent than the Foreigners Act which applies to the rest of the States in India; and (c) The provisions of the IMDT Act and IMDT Rules were less effective compared to the provisions of the Foreigners Act. Thus, the classification effected by the IMDT Act and the IMDT Rules between the State of Assam and the other States in India was held not to have a nexus with the object.

86. Both in Sarbananda Sonawal (supra) and in Naga People’s Movement of Human Rights (supra), this Court referred to Article 355 to test the validity of the means adopted to achieve the legislative object under Article 14 of the Constitution. The test of ‘legitimate objective’ is one of the prongs used by the Courts in its rights framework analysis. The first test that the Courts adopt to determine if the violation of fundamental rights is justified, based on the proportionality standard is to assess if the law was enacted in pursuance of a ‘legitimate object’.[148] The Constitution Bench in Naga People’s Movement of Human Rights (supra) and the three-Judge Bench in Sarbananda Sonawal (supra), relied on Article 355 for this purpose, that is, to test the constitutional legitimacy of the object of the amendment and the enactment, respectively.

87. Article 355, couched in Part XVIII of the Constitution which deals with emergency powers stipulates that it is the duty of the ‘Union’ to (a) protect every State against external aggression and internal disturbance; and (b) ensure that the government of every State is carried on in accordance with the provisions of the Constitution. It is established jurisprudentially that the correlative of a duty is a right.[149] The question is, however, whether the duty vested in the Union in Article 355 confers a correlative right that a legislation can be challenged for violation of the constitutional provision.

88. Article 355 was absent in the Draft Constitution of 1948. Dr BR Ambedkar introduced the provision as a justification for the Union’s interference in the administration of States in exercise of the emergency powers conferred by the Constitution.[150] Dr Ambedkar explained that in a federal Constitution such as the Indian Constitution where the States are sovereign since they also have legislative power in their own field, the Centre can interfere with the administration of States only when there is ‘some obligation which the Constitution imposes upon the Centre’.[151] In SR Bommai v. Union of India[152], Justice Sawant (writing for himself and Justice Singh) referring to the debates in the Constituent Assembly observed that Article 355 is not an independent source of power for interfering with the functioning of the State Government but is a justification for the measures adopted in Articles 356 and 357.[153]

89. The question is whether a legislative enactment can be challenged for contravention of Article 355 of the Constitution. For more than one reason, I think that such an interpretation would lead to disastrous consequences. Article 355 casts a duty on the Union to (a) protect every State against “external aggression”; (b) protect every State against “internal disturbance”; and (c) ensure that the “government of every State is carried out in accordance with the provisions of the Constitution”. All these three phrases (internal disturbance, external aggression and government of the State to be carried out in accordance with the provisions of the Constitution) feature in Part XVIII of the Constitution which deals with emergency powers. If the duty of the Union to safeguard States against external aggression is justiciable in view of Article 355, then petitions could be filed claiming that the Union has not appropriately dealt with ‘any’ of the situations referred to in Article 355. It could also be contended that emergency powers ought to have been invoked by the Union to deal with the situations appropriately. Reading the duty in Article 355 into a right would effectively place the emergency powers with citizens and courts. Such a consequence would be catastrophic for the federal structure of the Indian Constitution and would subjugate the constitutional status of States.

Article 355 cannot be elevated as an independent ground of judicial review in view of the purpose of the provision (as a justification clause) and the impact of such a reading on the federal framework of the Constitution.

90. The validity of the exercise of the Presidential power under Part XVIII (such as Article 352 and Article 356) has been held to be amenable to judicial review.[154] Proclamations under Articles 352 and 356 are amenable to review on the ground that the exercise of power is beyond the limits of the power prescribed by the constitutional provision. The petitioners in this case, however, seek to challenge the constitutional validity of a legislative provision (Section 6A) on the ground of Article 355. In doing so they seek to elevate Article 355 to an independent ground for judicial review of legislative action. This is beyond the scope of the provision. Besides a lack of legislative competence and a violation of Part III, legislation may be challenged for breach of a substantive limitation on legislative power, created by a constitutional provision. Article 355 is not however such a provision.

iv. Section 6A does not violate Article 29(1) of the Constitution

91. Article 29(1) of the Constitution provides that ‘any section of citizens’ residing in the territory of India or any part thereof and having a distinct language, script, or culture of their own shall have the right to conserve the same’. The claim of the petitioners is that Section 6A is violative of Article 29 because it permits people from Bangladesh who have a distinct culture to be ordinarily resident in Assam and secure citizenship which infringes upon their right to conserve Assamese culture.

92. The heading to Article 29(1) reads ‘protection of interests of minorities’. However, the text of the provision is not limited to minorities. It confers the right to any ‘section of citizens’ having a distinct language, script or culture. Thus, Article 29 applies to non-minorities as much as it applies to minorities, provided that (a) the section is of citizens; and (b) that section has a distinct language, script or culture.[155] The right that is granted to this beneficiary class is the right to ‘conserve’ their language, script or culture. The people of Assam (the Assamese) are a section of citizens who have a distinct language, script of culture which they are entitled to conserve in terms of Article 29(1).

93. Two prominent points must be noted at the outset. First, Article 29(1) confers the right to ‘conserve’ culture, that is, the operation of the law must not interfere with the ability of the section to take steps to protect the culture from harm or destruction. Second, the provision must be read in light of the multi-cultural and plural nation that India is.

94. This Court has not had the opportunity to deal with the scope of Article 29(1) elaborately in the past. The provision has been considered in a limited manner when this Court had to determine the issue of whether the right guaranteed by Article 30 to establish minority educational institutions must be limited to the purpose of conserving language, script or culture.[156] This Court held that a minority educational institution can be established for the purpose of conserving the language, culture and script but it is not necessary that it must be limited to that purpose.[157] This Court in the context of the scope of the right to establish and administer minority educational institutions under Article 30(1) also observed that the right would include the choice of the medium of instruction. The imposition of the medium of instruction by the State would be violative of the right of minority educational institutions under Article 30(1) read with Article 29(1).[158]

95. In Jagdev Singh Sidhanti v. Pratap Singh Daulta[159] the question before the Constitution Bench was whether appeals made to the electorate to vote or refrain from voting on account of language constitute a corrupt practice under Section 123(3) of the Representation of the People Act 1951[160]. The Constitution Bench held that the issue of whether any person was guilty of the corrupt practice under Section 123(3) must be determined in the backdrop of Article 29(1) of the Constitution. In this context, Justice JC Shah writing for the Bench observed that the right to conserve language includes the right to agitate for the protection of the language and that political agitation for that purpose cannot be regarded as a corrupt practice.

96. Article 29(1) confers the right to take steps (through positive action) for the preservation of culture, language and script. The phrase ‘conserve’ in the provision denotes positive action taken towards a specific end.[161] Article 29(1) guarantees a section of citizens, the right to take positive steps to protect their culture. The provision protects those steps that have a nexus with the end of preservation of the culture. There is sound reason to provide a constitutional guarantee to conserve culture, language or script. It is a constitutional recognition of the fact that culture, language and script die a natural death if positive steps are not taken to promote and protect them.[162] This is particularly true in a multi-cultural and multi-linguistic country such as India.

97. The second principle is that a law or an executive action is unconstitutional to the extent that it prevents a section from taking steps to preserve their culture. At this juncture, it must be noted that it is now settled that the fundamental rights include both negative and positive rights. The negative right flowing from Article 29(1) prevents the State from interfering with the right of the section of citizens to conserve their culture. The Courts must adopt the well-established effects standard to test if the action of the State is violative of Article 29(1). The positive right flowing from Article 29(1) casts a duty on the State to create conditions for the exercise of the right to conserve culture.[163]

98. In Jagdev Singh Sidhanti (supra), this Court also observed that the right guaranteed by Article 29(1) is absolute.[164] It is true that Article 29(1), unlike Article 19 of the Constitution, does not prescribe grounds for the reasonable restrictions of the right. It must be noted that the decision in Jagdev Singh Sindhanti (supra) was rendered in 1964 when the opinion of this Court in AK Gopalan v. State of Madras[165] held the field on the interpretation of fundamental rights. In AK Gopalan (supra), the majority of this Court observed that the fundamental rights operate in mutually exclusive silos. In 1970, the decision in Rustom Cavasjee Cooper v. Union of India[166,] rejected this interpretation of Part III holding that fundamental rights are not water-tight compartments. Once this Court has held that fundamental rights are not-water right compartments, rights which are not expressly subject to reasonable restrictions can be restricted to give effect to other fundamental rights.[167] For example, Article 30 which guarantees the right to establish and administer educational institutions, similar to Article 29, is not subject to an express restrictions clause. This Court in numerous decisions has held that the absence of a subjection clause does not mean that a minority educational institution cannot be regulated.[168] Thus, the observation in Jagdev Singh Sidhanti (supra) that the right guaranteed by Article 29 is absolute is no more good law is view of the subsequent developments on the interpretation of Part III of the Constitution.

99. It is in this backdrop that the issue of whether Section 6A is violative of Article 29(1) of the Constitution must be decided. The petitioners’ contention that Section 6A is violative of Article 29 is based on the following premises: (a) conferring citizenship to migrants from Bangladesh to Assam will increase Bengali population in Assam; and (b) the increase in Bengali population affects the culture of the Assamese population. The premise of the petitioners argument is not that the effect of the provision is that the people of Assam are prevented from taking steps to conserve their culture neither is it that the State is not taking effective steps to create conditions to enable groups to take steps to conserve culture. The argument of the petitioners is that the culture of Assam is infringed by the large influx of Bangladeshi immigrants who are conferred citizenship and Section 6A to the extent that it allows the influx is unconstitutional.

100. I am unable to accept this argument. First, as a matter of constitutional principle, the mere presence of different ethnic groups in a State is not sufficient to infringe the right guaranteed by Article 29(1). As explained above, Article 29(1) confers the right to ‘conserve’ which means the right to take positive steps to protect culture and language. The petitioners ought to prove that the necessary effect of the law that promotes the presence of various ethnic groups in a State is that another ethnic group is unable to take steps to protect their culture or language. The petitioner also ought to prove that the inability to take steps to conserve culture or language is attributable to the mere presence of different groups.

101. Second, various constitutional and legislative provisions protect Assamese cultural heritage. The Constitution provides certain special provisions for the administration of Tribal Areas in Assam. The Constitution (Twenty-second Amendment) Act 1969 included Article 244A of the Constitution. Article 244A stipulates that notwithstanding anything in the Indian Constitution, Parliament may by law form an autonomous State within Assam comprising wholly or in part of all or any of the tribal areas. Parliament may by law also create a body to function as a Legislature for the autonomous State. Article 330 provides that seats must be reserved in the House of the People for the Scheduled Tribes in the autonomous districts of Assam. By the Constitution (Twenty-second Amendment) Act 1969, Article 371B was included in the Constitution which provides a special provision with respect to the State of Assam. According to the provision, the President may by an order provide for the constitution and functions of a committee of the Legislative Assembly of the State consisting of the members of the Assembly elected from the tribal areas and such number of other members of the Assembly. The Sixth Schedule to the Constitution consists of provisions regarding the administration of tribal areas in the State of Assam, among other States.

102. Article 345 of the Constitution provides that the State Legislature may by law adopt any one or more language as the language to be used for official purposes in the State. In exercise of the power under Article 345, the Legislature of the State of Assam enacted the Assam Official Language Act 1960[169]. The enactment adopts Assamese as the language for all official purposes of the State of Assam.[170] The enactment further safeguards the use of languages on the basis of usage within the geographical limits. Section 4 provides that only languages which were in use immediately before the commencement of the Assam Official Language Act shall continue to be used for administrative and other official purposes up to and including the level of the Autonomous Region or the Autonomous District.[171] The Assam Official Language Act also provides that the Bengali language would be used for administrative and other official purposes upto and including the “district of Cachar until the Mohkuma Parishads and Municipal Boards of the district.”[172] In addition to the above, the State Government also has the power to direct the use of the language in such parts of the State of Assam through notification.[173] The cultural and linguistic interests of the citizens of Assam are protected by constitutional and statutory provisions. Thus, Section 6A of the Citizenship Act does not violate Article 29(1) of the Constitution for the above reasons.

v. Section 6A(3) is constitutional

103. Justice Pardiwala in his opinion has concluded that Section 6A(3) is unconstitutional for the following reasons:

104. To recall, Section 6A(2) deems all persons of Indian origin who came to Assam from Bangladesh before 1 January 1966 to be citizens of India. Section 6A(3) prescribes a procedure for persons of Indian origin who migrated from Bangladesh to Assam between 1 January 1966 to 24 March 1971 to acquire citizenship. The person must have been:

The person who satisfies the above conditions must register in accordance with the Rules framed by the Central Government in exercise of the power under Section 18.

a. The interplay of NRC and the citizenship regime

105. The Central Government prepared the National Register of Citizens[179] in Assam in 1951 which consisted of information on all the citizens in Assam.[180] In exercise of the power under Section 18(1) and (3), the Central Government notified the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003[181].[182] Rule 3 of the Citizenship Rules 2003 provides that the Registrar General of Citizen Registration must establish and maintain the National Register of Indian Citizens. The register must contain, inter alia, the following particulars with respect to every citizen: name, sex, date of birth, place of birth, and national identity number. Rule 4 deals with the preparation of the National Register of Indian Citizens. To prepare the National Register of Indian Citizens, the Central Government must carry a house to house enumeration for the collection of specific particulars relating to each individual, including the citizenship status.[183] The particulars collected are then required to be verified by the Local Registrar.[184] During the verification process if the citizenship of any person is doubtful, the Local Registrar must enter their details with appropriate remarks in the population registrar for further enquiry. The individual must be immediately informed of the doubtful citizenship.[185] Every person whose citizenship is doubtful would be given an opportunity of being heard before a final decision is taken to include or exclude their particulars in the National Register of Indian Citizens.[186] The Draft NRC must be published by the Sub-district or the Taluk Registrar for inviting objections or for corrections.[187] The Sub-district or the Taluk Registrar must consider the objections within a period of ninety days. The Rules also provide for an opportunity to appeal against the order to the District Registrar of Citizen Registration.[188]

106. On 9 November 2009, the Central Government notified the Citizenship (Registration of Citizens and Issue of National Identity Cards) Amendment Rules 2009[189] including Rule 4A to the Citizenship Rules 2003.[190] Rule 4A is a special provision for the preparation of NRC in the State of Assam.[191]

By virtue of the provision, the procedure prescribed in Rule 4 does not apply for the preparation of NRC in the State of Assam. Rule 4A(2) provides that the Central Government for the purpose of preparing NRC in Assam must invite applications from all residents including information on the citizenship status based on National Register of Citizens 1951 and the electoral rolls up to the midnight of 24 March 1971. The 2009 Amendment Rules included a Schedule to the Citizenship Rules 2003 prescribing the manner of preparation of the NRC in the State of Assam. The Schedule prescribes a different procedure for the preparation of the NRC in the State of Assam. For preparing the NRC for the rest of India under Rule 4, information on the citizenship status must be collected by the Central Government on door-to-door inspection.[192] However, in the case of Assam, an application must be made by the residents of Assam.[193]

107. According to the Schedule to the Citizenship Rules 2003, the procedure for the preparation of NRC in Assam is as follows:

108. The NRC consolidates together the names of all citizens in relation to the State of Assam. At the same time, it is a process for the detection of foreigners. The Citizenship Act and the Rules framed thereunder and the Foreigners Act form a scheme on Indian citizenship which must be read as a whole.

109. The Central Government notified the Citizenship Rules 2009 in exercise of the powers conferred by section 18 of the Citizenship Act 1955. Part IV of the Rules deals with the provisions for the citizenship of persons covered by Assam Accord. Rule 19(1) stipulates that the Central Government may for the purposes of Section 6A(3) appoint an officer not below the rank of Additional District Magistrate as the registering authority. Rule 19(2) states that an application must be made in Form XVIII[198] annexed to the Rules, thirty days from the date of receipt of the order from the Foreigners Tribunal declaring the person as a Foreigner. The period may be extended to sixty days by the registering authority after recording reasons.[199] Rule 19(2A) was included by a notification dated 16 July 2013.[200] Rule 19(2A) provides that a person who has been declared as a foreigner prior to 16 July 2013 and has not registered either because of the non-receipt of the order of the Foreigners Tribunal or the refusal of the registering authority to register such person as a Foreigner due to delay should make an application (in Form XVIII) within thirty days from the receipt of the order or from the date of publication of the notification. Form XVIII which is required to be filed by a person who is eligible to acquire citizenship under Section 6A(3) in terms of Rule 4 requires the submission of details relating to the order declaring such person as a foreigner.[201]

110. As explained above, the object of Section 6A is not limited to conferring citizenship but also extends to excluding a class of migrants from securing citizenship. Section 6A is one of the provisions in the larger citizenship project. The legal regimes on detecting foreigners and the citizenship law overlap at more than one point. Section 6A is one pea in the pod of a long-time redressal of issues. The effectiveness (or the impact) of Section 6A must be viewed from this holistic perspective.

b. Section 6A(3) is not unconstitutional on the ground of temporal unreasonableness

111. The opinion of Justice Pardiwala refers to the doctrine of temporal unreasonableness to hold that even if Section 6A(3) was constitutional at the time of its enactment in 1985, it has acquired unconstitutionality by the efflux of time because the provision has not been effective enough to redress the problem.

112. One of the settled principles of judicial review is that an enactment which was reasonable and valid at the time of enactment, may become arbitrary over time. In Motor General Traders v. State of Andhra Pradesh[202], the constitutional validity of Section 32(b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act 1960 which exempted all buildings built on or after 26 August 1957 from the purview of the Act was challenged. The petitioners challenged the provision on the ground that it had become unreasonable over the course of time. This argument was accepted by a two-Judge Bench of this Court. Justice ES Venkataramiah (as the learned Chief Justice then was), writing for the Bench observed that a non-discriminatory provision may in the course of time become discriminatory and violative of Article 14.[203] The learned Judge noted that legislation may become arbitrary over the course of time if the classification does not share a nexus with the object anymore:

113. In Rattan Arya v. State of Tamil Nadu[204], the issue for the consideration of

114. As identified above, the purpose of Section 6A was to deal with the influx of undocumented immigrants from East Pakistan to Assam. Section 6A provides that only undocumented immigrants who entered Assam before the cut-off date of 25 March 1971 shall be given citizenship. The beneficiary class of migrants is further divided into two sections: those who entered before 1 January 1966 and those who entered after 1 January 1966 but before 25 March 1971. The difference between Section 6A(2) and Section 6A(3) is that in the case of the former, the migrants are deemed to be citizens while in the case of the latter, they acquire citizenship after ten years from the date of detection. In the interim period (ten years since the detection), they lose their electoral rights. The consequence of being detected to be a foreigner who entered between 1966 to 1971 is that they lose their right to political franchise for ten years. Upon their detection, they will have the same rights and obligations as a citizen of India including the right to obtain a passport under the Passports Act 1967. Thus, undocumented migrants who fall in this category will be citizens of India upon detection for all purposes except the exercise of electoral franchise. The legislature in its good wisdom has proceeded on the basis that a consequence of such a great magnitude must only ensue upon detection as a foreigner through a quasi-judicial proceeding.

115. In exercise of the powers conferred by Section 3 of the Foreigners Act, the Central Government notified the Foreigners Tribunals Order. Once the question of whether a person is a foreigner is referred to the Foreigners Tribunal[206], the reference is decided based on the following procedure:

116. In addition to the above, the Tribunals Order also prescribes detailed provisions regarding the service of notice indicating that the core tenets of natural justice must be provided to the person suspected to be a foreigner.[214] The Tribunals have the powers of a civil court while trying a suit under the Code of Civil Procedure 1908 and the powers of a Judicial Magistrate First Class under the Code of Criminal Procedure 1973[215]. The order of the Foreigners Tribunal, being an order of a quasi-judicial body is subject to judicial review before the High Court and then this Court.

117. Clause 5.4 of the Assam Accord states that the foreigners who were detected to have entered between 1966 to 1971 were required to register before the Registration Officers in accordance with the provisions of the Registration of Foreigners Act 1939 and the Registration of Foreigners Rules 1939. The Assam Accord devised a model in which upon detection as a foreigner, they would have to register in the existing mechanism.

118. However, Section 6A deviated from the Assam Accord in this regard. Section 6A(3) stipulates that upon detection, the person must register themselves in accordance with the rules “made by the Central Government in this behalf under Section 18”. The Citizenship Rules were amended by a notification dated 15 January 1987[216] including Rules 16D, 16E and 16F. These Rules implement the substantive provisions of Section 6A(3). 16D states a fresh reference must be made to the Foreigners Tribunal if the question of whether a person satisfies the condition under Section 6A arises. Rule 16E deals with the jurisdiction of Tribunals constituted under the Foreigners (Tribunals) Order 1964 to deal with references under Section 6A(3). Rule 16F provides for the registering authority and procedure for registration for the purpose of Section 6A(3).[217]

119. The legislature by adopting Section 6A(3) in the current form required the State to make rules for its implementation. As explained above, the detection as a foreigner is an elaborate process that required the State to build manpower and infrastructure for its implementation. The Legislature conferred the State with the duty to implement the provision after it had built sufficient infrastructure for the same. The purpose of Section 6A(3) was to provide a long term solution to the issue of the large influx of migrants from Bangladesh to Assam. While it is true that one of the causes of concern which led to the Assam Students’ Movement (and culminated with the Assam Accord) was the dilution of the electoral right of those native to Assam because of the inflow of migrants, the purpose of Section 6A(3) cannot be limited to it. The objective behind the enactment of the Citizenship (Amendment) Act 1985 was to deal with the larger problem of whether Bangladesh migrants of Indian Origin could secure citizenship in India. The objective of the provision must be understood in the backdrop of the Indian policy on post-partition migration and the Assam movement. The provision strives to bring about a balance between both the objectives. Having said that, the concerns of the petitioners regarding the burden on the resources of the State and on its demographic identity due the influx of illegal migrants in large numbers is not lost to the Court and is a matter of serious concern. The State must effectively create adequate state capacity to deal with undocumented migrants who migrated after the cut-off date prescribed by Section 6A as well as those who have migrated before the cut-off date who do not fulfill the conditions for the grant of citizenship under the provision.

120. In view of the above discussion, I am unable with respect to agree with the observation of my learned brother, Justice Pardiwala that the purpose of Section 6A(3) is merely the speedy and effective identification of foreigners of the 1966-71 stream. The principle of temporal unreasonableness cannot be applied to a situation where the classification is still relevant to the objective of the provision. The process of detection and conferring citizenship in Assam is a long-drawn out process spanning many decades. To strike it down due to lapse of time is to ignore the context and object of the provision.

vi. Section 6A(2) cannot be held unconstitutional for not prescribing a procedure for registration

121. The petitioners submitted that Section 6A(2) is unconstitutional because the provision does not prescribe a procedure for conferring citizenship to those who migrated before 1 January 1966, unlike Section 6A(3) which prescribes a procedure for conferring citizenship to those who migrated between 1966-1971.

122. Section 6A is a substantive provision conferring citizenship on persons who migrated from Bangladesh to Assam. The provision provides that persons who migrated from Bangladesh to Assam before 1 January 1966 shall be deemed to be citizens of India from 1 January 1966. The import of the use of the legal fiction is that the law assumes a fact that does not exist.[218]

123. The provisions of the Citizenship Act do not require every person to register to acquire citizenship. Sections 5 and 6 of the Citizenship Act provide for acquiring citizenship through registration and naturalisation. These two provisions require the applicant to follow a process of application.

124. However, Sections 3 and 4 of the Act do not require registration for acquiring citizenship. Section 3 deals with citizenship by birth. Section 4 deals with Citizenship by descent. The law does not mandate that persons who are covered in the categories prescribed by Sections 3 and 4 must register to acquire citizenship. Thus, registration is not the de-facto model of securing citizenship in India. The use of the deeming fiction obviates the need for registration. Any person : (a) of Indian origin who migrated from Bangladesh to Assam before 1 January 1966; and (b) who has ordinarily been a resident in Assam since their date of entry is deemed to be a citizen of India. The provision does not contemplate a registration regime for persons who fall under this category, similar to Sections 3 and 4 of the Citizenship Act. Thus, Section 6A(2) cannot be held unconstitutional for the only reason that it does not prescribe a process of registration.

D. Conclusion

125. In view of the discussion above, the following are the conclusions:

126. The reference is answered in the above terms.

127. The Registry is directed to obtain administrative instructions from the Chief Justice for placing the matters before an appropriate Bench.

Per Surya Kant, J. (on behalf of himself, M.M. Sundresh J. and Manoj Misra, J.)

Table of Contents

1. The present batch of matters involve the constitutional validity of Section 6A of the Citizenship Act, 1955 (Section 6A). This provision was incorporated in 1985 to establish a framework and to delineate criteria for granting Indian citizenship to migrants who entered Assam before 25.03.1971. Briefly put, the provision created categories for the conferment of citizenship to immigrants who entered Assam – (i) deemed citizenship to immigrants who entered prior to 01.01.1966; and (ii) the process of registration for immigrants who entered between the period of 01.01.1966 and 25.03.1971. However, by omission, 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. Expressing their anxiety over the problems that have been posed by the influx of immigration from Bangladesh into Assam, which the Petitioners contend have been compounded and legitimized by Section 6A, the present action has been brought before this Court.

2. Citizenship and its penumbral dimension are at the core of the present challenge. Thus, before analyzing the challenges regarding the constitutionality and the scheme of citizenship under the Constitution of India and the Citizenship Act, 1955, (Citizenship Act) we shall endeavour to explore the jurisprudential scheme and framework of citizenship globally as well as in India.

A. BACKGROUND

Meaning of citizenship

3. Jurisprudentially, the term ‘citizenship’ is an abstract concept which has carried various interpretations that have evolved over time.[1] In ancient Greek society, philosophers like Aristotle distinguished citizens from other members of society – such as residents, children, slaves, and the elderly. According to Aristotle, citizens were individuals who held judicial or legislative authority within a state.[2] Hence, society was divided into citizens and mere subjects, where being a citizen was a matter of privilege. Called the ‘republican model’, this was also seconded by other philosophers such as Tacitus, Cicero, Machiavelli, Harrington and Rousseau. [3] With the growth of the Roman empire, the notion of ‘citizen’ was broadened to encompass individuals in conquered territories. This eventually transformed the meaning of citizenship, where instead of granting access to political office, the term ‘citizen’ meant acquiring legal status of being part of a community and receiving protection under law.

4. Over time, the term citizenship thus moved from the ‘republican model’ to a ‘liberal model’, which diluted the status of citizenship from a political privilege to a more egalitarian right based upon the similarity of legal status shared by a common populace.[4]

The meaning of citizenship in India

5. In the domestic context, citizenship was ascertained by a 9-Judge Bench of this Court in State Trading Corpn. of India Ltd. v. CTO,[5] as the ‘right to have rights’.[6] It was held that citizenship is the pre-requisite that leads to gaining legal status and other sociopolitical rights in a country. However, although there is broad consensus on the fundamental concept of citizenship,[7] the specific rights and privileges associated with citizenship vary from one jurisdiction to another. Additionally, countries differ in the mechanisms and criteria for acquiring citizenship. These variations reflect the unique historical, cultural, and legal contexts of each nation.

6. In India, various rights are exclusively conferred upon citizens. These include the right to vote, the right to move freely, the right to form unions, the right to hold public office, the freedom of speech and expression, equality in public employment, etc. However, there are certain rights that are also made available to non-citizens, including the right to equality before the law, the prohibition of forced labour, etc. Additionally, the category of Overseas Citizen of India (OCI) represents a unique position within the spectrum of citizenship and non-citizenship since they have more rights than non-citizens (such as a lifelong visa for visiting India) but have fewer rights in comparison to citizens (such as the absence of the right to vote).

7. The bundle of rights accompanying ‘citizenship’ differs in other countries. For instance, in the United Kingdom, the British Nationality Act, 1981 creates six different classes of people: British Citizen, British Overseas Territories Citizen, British Overseas Citizen, British Subject, British National (Overseas), and British Protected Person. These classes are based on varying levels of association with the United Kingdom and its overseas territories, former colonies, and protectorates; and they carry different sets of rights. For instance, while British citizenship bestows the right to vote, it is also available to some Commonwealth citizens.[8]

8. Similarly, Mexico establishes two distinct categories of “national” and “citizen”.[9] A citizen is defined as a national who is 18 years of age and has an “honest way of life”.[10] Once a national becomes a citizen, they get the right to vote, the right to assembly, the right to join the army, etc.[11] Hence, while nationals and citizens can live in Mexico, only citizens get the extra right to vote. The situation is also similar in the United States of America (USA). Here, the residents of certain territories like American Samoa are only granted nationality and not citizenship of the USA. Like Mexico, such nationals can reside freely in the USA but cannot vote or hold certain elected offices.[12] Further, while the residents of some other territories, like Puerto Rico, are granted citizenship, they still do not get the right to vote.[13]

9. The trans-national comparison examined above aids us by providing three definite conclusions. First, globally, citizenship can be conceptualized as the right to be a member of a society. In that sense, citizenship is essential to one’s identity since it determines whether that person would be perceived as an alien or as ‘one of us’. This is particularly true given the historical context of the partition and subsequent relations among the nations and people in our subcontinent. In addition to such identification by fellow members of society, citizenship is also a key determinant in enabling an individual to achieve their aims and objectives; since citizenship grants access to certain exclusive rights in society. Additionally, citizenship provides a sense of belongingness and esteem, apart from furthering the self-actualization needs of individuals. Collectively, citizenship provides an ‘identity’ to individuals, which has a significant impact on the quality of their lives and their individual psyche.

10. Second, beyond the conceptual understanding that citizenship grants an assemblage of certain rights in a community, the rights that may be conferred depend on the municipal policies of that country. While some countries like India reserve the right to vote exclusively for citizens, countries like the United Kingdom also extend it to Commonwealth citizens. Further, countries such as the USA do not bestow the right to vote even to some citizens.

11. Third, most nations have multiple classes of citizenship or nationality instead of a rigid dichotomy of citizens and non-citizens. In addition to this division, countries also have categories such as overseas citizens, nationals, subjects, etc. However, while the basket of rights differs inter-se such categories, citizenship is generally the highest basket a person can be classified under. Hence, though citizenship is one sub-set among many possible ways of being a member of a polity, it is the most significant one. Nonetheless, reality is often more nuanced, with numerous exceptions, caveats, entrenched inequalities and discriminatory legal regimes.

12. The conditions to acquire citizenship also vary across jurisdictions. Given that the Petitioners are challenging a specific mode of conferment of citizenship, it would be helpful to understand the manner in which citizenship is conferred both across the world and under our constitutional scheme. This will help us trace whether Section 6A is merely an aberration that does not fit into our domestic conceptualization of conferring citizenship or if it is another piece of a much more complicated puzzle.

Modes of acquiring citizenship

13. Broadly, there are three approaches for granting citizenship: (i) jus soli, i.e., on the basis of birth within that particular country; (ii) jus sanguinis, i.e., citizenship by blood/descent; and (iii) through special recognition by law, such as citizenship by registration, naturalization, incorporation of a foreign territory, etc. Globally, countries have adopted different models for constructing their citizenship regimes. While most countries in North America follow a jus soli regime, a majority of European nations follow a jus sanguinis regime. In contrast, Australia and the African nations follow a mixed regime.[14]

14. There are varied academic perspectives deliberating as to the reasons why a country chooses one mode of conferring citizenship over another. As per one perspective, countries that wish to grant citizenship to immigrants who do not have familial links in the country choose the jus soli model.[15] However, from another perspective, the choice of mode is often based on the significance of ethnicity for the citizen’s identity resulting in adoption of a jus sanguinis model. Hence, if a nation emphasizes ethnic continuity through descent and lineage, it tends to choose the jus sanguinis model over the jus soli model. However, where the cultural identity is tied to the territory of the nation, the jus soli model is preferred.[16] Beyond these considerations, citizenship models can also be justified on the basis of inter-state relations (by which citizenship is granted based on historical links or treaties between nations),[17] or on economic considerations (which are instantiated by countries that allow citizenship by investment).[18]

15. While providing an exhaustive account of all academic perspectives is neither feasible nor necessary for the current discussion, it is evident that various policy reasons inform the selection of one citizenship pattern over another. There is no single policy that universally dictates the framing of citizenship laws; rather, diverse considerations, including historical, cultural, economic, and political factors, influence the formulation of citizenship regimes.[19] Even though a uniform citizenship policy across the world could eliminate statelessness and multiple citizenships, the varying basis of granting citizenship is unavoidable because each country has its own unique policy considerations and political milieu. Since there is no single universally suitable model, no mode of granting citizenship can be called an aberration or an anomaly. Citizenship is purely a creation of law, which, in turn, is an instrument of policy based on different prevailing circumstances of each country. While some nations insist on connections in terms of descent and territory, some even grant citizenship for purely economic reasons.[20]

16. Further, since the policy reasons underlying a citizenship regime are bound to remain in flux, constitutions around the globe are wary of setting citizenship norms in stone. For instance, a country’s demographic pattern might change, it might want to effect interstate arrangements, it might be engaged in a war, there could be international treaties granting rights to certain classes of people, etc. Therefore, rather than imposing rigid norms on citizenship, it is desirable for constitutions to grant the government the flexibility to determine laws regarding membership in the country’s community. For this, either the constitutions such as the Australian Constitution, remain silent on the conditions of acquiring citizenship, or they prescribe the overarching norms for the time being and give the power to make and change specific conditions to the Parliament.[21]

Citizenship under the Constitution of India

17. In India, the approach of prescribing wide-ranging norms for citizenship was adopted at the commencement of the Constitution. Since the country was required to have norms for determining who could be a member of its community, the Constitution prescribed certain transitional conditions within Part II and made them subject to any laws that Parliament may make later.[22] Prescribing such norms in the Constitution was all the more critical because the country had undergone two significant changes: first, there had been a complete metamorphosis from a ruled territory to an independent nation; and second, there was the partition of the country, and some of its territories that were hitherto a part of it were declared a separate nation. After the creation of an independent India and the demarcation of its territory being complete, the next logical question of who an Indian was, emerged. Since the Parliament itself was nascent, the Constituent Assembly chose to incorporate transitionary norms of citizenship in the Constitution itself, instead of keeping the question of who an Indian was unsettled till later.

18. In this context, the Constitution came to incorporate the provisions now enshrined in Part II of the Constitution. Articles 5 to 10 prescribed the overarching norms of citizenship at the time of the commencement of the Constitution, while Article 11 granted Parliament the power to make any law regarding citizenship.

19. Hence, the scheme of citizenship provided under the Constitution comprises broadly of the following provisions:

Legislative scheme on citizenship

20. Exercising the power granted by Article 11 of the Constitution, the Parliament enacted the Citizenship Act, which expanded on the conditions prescribed by the aforementioned provisions of the Constitution. The key provisions that provided the conditions for citizenship under the Act are set out below:

21. To understand the interplay of the norms prescribed by Part II of the Constitution and the provisions of the Citizenship Act, a brief overview of the different conditions is set out in the table below:

22. Apart from these general norms, the Constitution also prescribed citizenship norms for immigrants to and from Pakistan. For this, Article 6 provided citizenship to people who migrated from Pakistan if: (i) such person/either of their parents/ grand-parents were born in undivided India; (ii) if such person was an ordinary resident since the date of their migration; and (iii) such person was registered as a citizen of India if such migration was after 19.07.1948. As a corollary, Article 7 prohibited citizenship to people who migrated from India to Pakistan after 01.03.1947 and then sought citizenship after re-migrating to India, unless they came back under a permit for resettlement or permanent return. Similar to these provisions is Section 6A, which provides a framework addressing the conferment of citizenship to migrants entering the State of Assam based on their date of entry.[28]

23. Section 6A, which is presently under challenge, was inserted into the Citizenship Act, via Act 65 of 1985 and came into force with effect from 07.12.1985. This provision created special conditions for the citizenship of migrants who entered into Assam in accordance with certain cut-off dates. As per the provision, first, those who entered Assam from Bangladesh prior to 01.01.1966 were deemed to be Indian citizens, and second, those who entered into Assam between the period of 01.01.1966 and 25.03.1971 were conferred citizenship based on the fulfilment of specific procedures and conditions. Those who entered Assam after 25.03.1971 have been denied citizenship by implication.

24. To analyze this provision comprehensively, it is imperative to go through Section 6A and the language it employs. Section 6A, as it was added in 1985 to the Citizenship Act reads as follows:

25. A preliminary perusal of this provision and its associated rules contained in the Citizenship Rules, 2009, indicate various timelines and effects, resulting in the conferment of differing degrees of rights and obligations to immigrants entering into the State of Assam. These aspects are delineated below in a tabular format for greater ease of understanding. This tabular presentation aims to provide a structured overview of the different elements pertaining to immigrant entry into Assam, thereby aiding comprehension of the nuances involved.

27. Having understood the interplay between the modes of citizenship, as conferred by the Indian Constitution, the Citizenship Act and the provision of Section 6A itself, we will now examine the genesis of this controversy, the contentions put forth by the parties and the key issues that demand scrutiny.

B. TERMS OF REFERENCE

28. The first writ petition before this court in the present matter was filed in 2009 by Assam Public Works, an NGO, seeking the deletion of illegal migrants from electoral rolls in Assam and the updation of the National Register of Citizens (NRC), 1951. Thereafter, in 2012, the Assam Sanmilita Mahasangha and other organisations challenged the constitutionality of Section 6A on the grounds that it was discriminatory, arbitrary, and illegal. Following this, a 2-judge bench of this court started monitoring the NRC updation process. This Court, vide judgement dated 17.12.2014 in Assam Sanmilita Mahasangha v. Union of India,[33] framed 13 questions regarding the constitutionality of Section 6A as arising from the abovementioned writ petitions and referred them for adjudication by a Constitution Bench. For reference, the questions as they were framed are put forth hereinbelow:

29. An application was then moved seeking this Court’s directions regarding the children who had been excluded from the final NRC list despite their parents having been included. Vide order dated 06.01.2020, this Court noted the then Attorney General’s assurance that such children would not be separated from their parents and would not be sent to detention centers in Assam.[34] In this context, it is also relevant to note that the final draft of the NRC list was published on 30.07.2018, whereby over 40 lakh persons out of 3.29 crore applicants stood excluded. The final NRC list was published on 13.08.2019, whereby over 19 lakh persons out of 3.29 crore applicants stood excluded.

30. This Court, vide order dated 10.01.2023, viewed that the one main issue that arises for consideration is – “Whether Section 6A of the Citizenship Act, 1955 suffers from any constitutional infirmity.” Subsequently, vide order dated 20.09.2023, the present matter was titled ‘In Re: Section 6A of the Citizenship Act 1955’.

31. We now turn to the submissions made by the parties in support of their respective stance on the matter.

C. CONTENTIONS OF THE PARTIES

Petitioners’ submissions

32. Mr. Shyam Divan, Mr. Vijay Hansaria and Mr. K.N. Choudhury, Learned Senior Advocates, appeared for the Petitioners. Their contentions are detailed hereinbelow:

Respondents’ submissions

33. Mr. R. Venkataramani, learned Attorney General, Mr. Tushar Mehta, Learned Solicitor General, Mr. Kapil Sibal, Ms. Indira Jaising, Mr. Sanjay Hegde, Ms. Malvika Trivedi, Mr. P.V. Surendranath Learned Senior Counsel, Mr. Shadan Farasat, Dr. Vivek Sharma, Mr. Mehmood Pracha and Mr. Syed Shahi Rizvi appeared for the Respondents. Their contentions have also been summarized hereinbelow:

D. ISSUES

34. Although the reference to this Court is simple, being one of the factors in determining the constitutional validity of Section 6A of the Citizenship Act, this issue can be broken down into several constituent questions for this Court’s determination.

I. Prefatory issues

E. ANALYSIS

35. Before examining the contentions of the parties on the merits of the core issue challenging the constitutional validity of Section 6A, it is incumbent first to address the prefatory issues arising from the Respondents’ contentions on the maintainability of the present petition.

Prefatory challenges

i. Judicial review

36. At the very outset, the Respondents asserted that this Court should refrain from delving further into the matter, as the petition raises issues hovering around foreign policy, a domain traditionally excluded from the purview of substantive judicial review. Consequently, they argued that the Petitioners are barred from challenging Section 6A.

37. The Petitioners, on the other hand, contended that Section 6A merely being a provision of the statute, it does not fall beyond the purview of judicial review. It is, thus, important for us to discuss and demarcate the principles and scope of judicial review in the instant case.

(a) Concept of judicial review

38. The principle of judicial review finds its roots in common law. It can effectively be traced back to Chief Justice Coke’s ruling in Thomas Bonham v. College of Physicians,[36] wherein it was asserted that common law had the authority to oversee Acts of Parliament and empowered the courts to invalidate an enactment conflicting with common right and reason. This principle entails subjecting all laws to scrutiny against a higher law, typically embodied in a constitution.

39. This principle originated in the Supreme Court of the United States during the landmark case of Marbury v. Madison.[37] In that decision, the Court asserted its authority by deeming the concerned legislation unconstitutional, thereby constraining the powers of Congress. The Court therein held that:

40. The essence of our constitutional system is rooted in the concepts of constitutionalism and judicial review, which comprise three essential elements: first, the presence of a written Constitution establishing and constraining government organs; second, the Constitution serving as a superior law or standard by which the conduct of all organs is assessed; and third, the provision for sanctions to prevent, restrain, and if necessary, annul any violation of superior law. The third element, which seeks to safeguard superior law, is through judicial review. Despite the expansive powers granted to legislatures, they operate within the confines set by the Constitution. In a democratic nation governed by a written constitution, supremacy and sovereignty reside in the Constitution. However, the duty of protecting the rights given under the Constitution falls to courts through judicial review, making them, in the process, the ultimate arbiter of constitutional interpretation.[38]

41. Constitutional courts, equipped with the powers of judicial review, function as custodians of justice, ensuring effective safeguard of citizens’ rights. Embedded in Article 13 of our Constitution, judicial review is recognized as a basic feature of our constitutional framework.[39] It gives the Court the authority to scrutinize any violation of constitutional mandates by state organs. As articulated by Lord Steyn, the justification for judicial review arises from a combination of principles, such as the separation of powers, the rule of law, and the principle of constitutionality.[40]

42. The power of judicial review does not undermine the doctrine of separation of powers. Instead, it fosters it by ensuring a system of checks and balances to prevent constitutional transgression by any organ of the state. Separation of powers should be seen as a connection or link, rather than as a limitation or impediment; allowing the Court to ensure that the constitutional order prevails.[41]

43. In the present case, the Respondents urged that the matter entails policy considerations, and hence, the Court should not step into it.

44. It is pertinent to iterate the language under Article 13(2) of the Constitution, which states that:

45. Upon a perusal of the above, it becomes clear that though the term ‘policy’ is not expressly mentioned in Article 13, it becomes justiciable if it takes the shape of a law.[42] In the event such a law is deemed void due to a violation of any fundamental rights outlined in Part III of the Constitution, it cannot be protected merely for being legislative policy. This view has been elucidated in A.L. Kalra v. Project & Equipment Corporation,[43] wherein objections were raised on the grounds that the Court could not review the statute, as it entailed policy considerations. However, this Court, having taken these contentions into consideration, held that a legislative policy taking the concrete shape of a statute could be tested on the anvil of violation of fundamental rights.

46. It is, therefore, abundantly clear that courts possess the authority to scrutinize whether legislative or executive actions contravene the Constitution, and the designation of a decision as a policy choice does not serve as a fetter to the exercise of this judicial power. This aligns with the principle of separation of powers, which bestows upon the judiciary the authority to serve as a guardian against the actions of the legislature and executive, intervening to safeguard the interests of citizens when necessary.

(b) Limits to judicial review

47. However, concurrently, it is imperative to acknowledge and respect the domain of the legislature and executive within the framework of the separation of powers. While the courts are entrusted with the authority to maintain checks and balances on the other branches concerning the constitution and other legal provisions, they are not empowered to supplant the legislature by delving into additional facets of policy decisions and governing citizens in its stead. This sentiment resonated in Hindi Hitrakshak Samiti vs. Union of India, wherein it was held that:

48. Similar views were echoed in Fertilizer Corporation Kamgar Union v. Union of India,[45] where a 5-judge bench of this Court affirmed that, in accordance with the principle of separation of powers, the authority of the Court is confined to assessing whether legislative or executive actions comply with the law, without delving into judgments on their wisdom. Consequently, while the Court possesses the jurisdiction to interpret the law and scrutinize the legality of policy decisions, it is not empowered to substitute its discretion for that of the legislature or executive, nor to speculate on the appropriateness of such decisions.[46] The courts do not operate as advisors to the executive in matters of policy formulation, a prerogative rightfully within the executive’s domain.

49. Similarly, it is imperative to emphasize that courts also lack the authority to intervene in policy matters when based on the premise of policy errors or the availability of ostensibly superior, fairer, or wiser alternatives. The Court cannot do a comparative analysis of policy to determine which would have been better. As summarized by this Court in Directorate of Film Festivals v. Gaurav Ashwin Jain:[47]

50. This is particularly true for complex areas requiring empirical knowledge, data inputs, and technical expertise,[48] such as matters involving economic policy,[49] scientific policy,[50] or international relations.[51] Complex social, economic, or commercial issues require a trial and error approach, the weighing of different competing aspects, and often intricate factual studies.[52] Such matters raise complicated multi-disciplinary questions that do not fall within the legal domain, are irreducible to one answer, and require adjustment of priorities amongst different stakeholders. [53]

51. Since courts are not equipped to evaluate such factual aspects, they cannot be allowed to formulate policy. In contrast, the legislature has the correct institutional mechanism to deliberate on various considerations, as it facilitates decision-making by democratically elected representatives who possess diverse tools and skill sets to balance social, economic, and political factors.[54] Such policy matters thus ought to be entrusted to the legislature. This principle is succinctly encapsulated by Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd.,[55] in which a 5-judge bench of this Court held that:

52. Furthermore, the Courts are not tasked with assessing the efficacy of policies. A policy may successfully achieve the objectives outlined in legislation, or it may possess limitations hindering the full realization of its aims. Regardless, the Court cannot sit in judgment over policy to determine whether revisions may be necessary for its enhancement. This has also been authoritatively elucidated by an 11-judge bench of this Court in the case of Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India:[56]

53. In summary, the judicial review of government policies encapsulates determining whether they infringe upon the fundamental rights of citizens, contravene constitutional provisions, violate statutory regulations, or display manifest arbitrariness, capriciousness, or mala fides.[57] The focus of judicial scrutiny is limited to the legality of the policy, excluding any evaluation of its wisdom or soundness. The Court cannot compel the government to formulate a policy, evaluate alternatives or assess the effectiveness of existing policies. This constraint stems from the principle of separation of powers, where the Court lacks the democratic mandate and institutional expertise to delve into such matters. Thus, while the Court can invalidate a policy, it lacks the authority to create one.

54. However, to reiterate, while the Court cannot look into the aforementioned aspects, the Court can check the constitutional validity of a policy, particularly so when it is elevated as an act of the Legislature.

55. The present challenge concerns checking the validity of Section 6A, a statutory provision. We are, therefore, of the firm view that the Respondents’ plea regarding foreclosing the Petitioners’ challenge at the threshold, on the grounds of judicial review, cannot be accepted.

ii. Delay and maintainability of the writ petitions

56. In addition to the grounds of non-justiciability, the Respondents also protested against the maintainability of the writ petitions on account of inordinate delay and laches. They argued that while the subject provision was introduced in 1985, the writ petitions challenging the same have been filed after a long period of 27 years. Applying the doctrine of laches, the Respondents argued that the writ petitions must be held to be non-maintainable since the rights created during these 27 years cannot now be taken away. In support of their contentions, the Respondents have cited, inter alia, a 5-judge bench decision of this Court in Tilokchand Motichand v. H. B. Munshi,[58] and urged that even if it is assumed that Section 6A violates the fundamental rights of the Petitioners, it cannot be declared unconstitutional at this belated juncture.

57. Per contra, the Petitioners argued that inter partes, the question regarding maintainability has already been decided by this Court in Assam Sanmilita Mahasangha v. Union of India (supra). Hence, they contended that the writ petitions cannot be considered to have been filed after a delay. Alternatively, they urged that delay, per se, would not be fatal to their claim because the doctrine of laches is not applicable when substantial questions of law are involved. In the instant case, since the dispute involves questions like the security of the state, the rights of Assamese people under Article 29, the discrimination against the State of Assam, etc., the petitions should not be barred at the threshold on the grounds of delay.

58. The primary issue to be determined, therefore, is whether the current writ petitions should be dismissed outright due to delay without delving into the merits of the Petitioners’ claims.

(a) Limitation period for writs

59. In India, the Limitation Act, 1963 sets out the maximum period within which suits, appeals, and applications must be filed before the court. Cases brought after this prescribed period are typically barred due to delay unless the court decides to condone the delay. However, it is important to note that the Limitation Act, 1963 does not apply to writ proceedings and, therefore, does not specify a particular time limit within which a writ needs to be filed.[59] Similarly, though the Supreme Court Rules, 2013 specify the time limit for certain petitions that the Limitation Act, 1963 does not cover (such as Special Leave Petitions),[60] these Rules too do not specify the limitation period for filing a writ petition under Article 32 of the Constitution.

60. However, while such a period is not prescribed by the Limitation Act, 1963, or the Supreme Court Rules, 2013, a writ petition filed belatedly after a considerable delay is barred by the operation of the doctrine of laches.[61] The said doctrine of laches is a common law principle disallowing a claim because it has been brought to the court after an unreasonable lapse of time. It is based on the maxim ‘vigilantibus non dormientibus jura subveniunt’, which means that the law assists those who are vigilant with their rights and not those that sleep thereupon. Hence, even in the absence of the prescription of a statutory time limit for its filing, a claim that has been filed after a significant delay can be rejected at the threshold by invoking this doctrine.

61. Indeed, the laches principle bears similarities to the Limitation Act, 1963, as both are founded on similar policy considerations. A claim brought after considerable delay may not be entertained because third-party rights may have been established during this timelapse, and it would be unjust to prejudice innocent parties due to the tardiness of the claimant.[62] Additionally, considering a delayed claim could be unfair to the opposing party, as they may have lost access to crucial evidence needed to defend against the claim. Reopening the case after a significant delay could thus place the opposing party at a disadvantage, potentially resulting in an unjust or inaccurate outcome. Moreover, it is essential to put a time limit on proceedings to provide certainty and prevent confusion from cases being in perpetual flux. It is also important to deny a delayed claim to encourage parties to be more diligent when enforcing their rights.

62. While the doctrine of laches serves similar underlying purposes as the Limitation Act, 1963, it is less rigid in its application. Unlike the aforementioned Act, which prescribes specific time periods for filing claims, there is no fixed timeframe under the doctrine of laches. Instead, each case is evaluated based on its unique facts and circumstances. In the context of writ petitions, Hidayatullah, C.J., in Tilokchand Motichand (supra), held that while there is no upper or lower time limit for entertaining writ petitions, the Court shall consider whether the delay was avoidable and whether such delay affects the merits of the case. Similarly, in Shri Vallabh Glass Works Ltd. v. Union of India,[63] it was held that the Court must consider the conduct of the parties, the change in circumstances, and the prejudice that would be caused to the other party or the general public.

63. Hence, it is settled law that the doctrine of laches is not an inviolable legal rule but a rule of practice that must be supplemented with sound exercise of judicial discretion. While Courts must ordinarily apply this doctrine in light of the policy reasons discussed before, the doctrine allows the Court to conduct an individualized analysis of each case and entertain claims in the competing interests of justice, even when the claim may be delayed and third-party rights may have been created.[64]

64. We may, however, hasten to clarify that the doctrine of delay and laches is not to be ipso facto excluded where a breach of fundamental rights is alleged. The 5-judge benches of this Court in Narayani Debi Khaitan v. State of Bihar,[65] Daryao v. State of U.P.,[66] and Tilokchand Motichand (supra), and a 3-judge bench in Amrit Lal Berry v. CCE,[67] have reiterated that even in such like cases the court must see the effect of laches. However, that being said, there may be instances where considerations of justice demand that the court adjudicate on the merits of a case rather than summarily dismissing it based solely on procedural grounds such as delay.[68]

65. One such factual circumstance is when the claim affects the public at large. In Kashinath G. Jalmi (Dr) v. The Speaker,[69] this Court analyzed several precedents (including Tilokchand & Motichand (supra)) and differentiated them by holding that the doctrine of laches cannot be used to expel a claim that is made on behalf of the public. Judicial discretion, while applying this doctrine, must always be governed by the objective of promoting the larger public interest; and if a claim affects the public at large, the Court should go into the merits of the case.[70] Where it is found that denial of consideration on merits is likely to affect society in general and can have a cascading effect on millions of citizens, the Court will carve out an exception and proceed to decide the lis on merits.

66. Another vital circumstance where the doctrine of delay and laches would not be applicable strictly is in matters where the vires of a statute are challenged vis-a-vis the Constitution. This Court has, in the due course of time, accepted the idea of transformative constitutionalism, which conceptualizes the Constitution not as a still document cast in stone at the day of its formation but as a living and dynamic body of law, capable of constant updation and evolution as per changing societal mores. Should this Court deny a constitutional challenge solely based on delay, it would effectively establish an arbitrary cut-off beyond which laws could no longer be re-examined in light of changing circumstances. Such a rigid approach cannot be countenanced as changing societal circumstances sometimes necessitate a reconsideration of the status quo-even when the challenge is brought after a considerable lapse of time.

67. To instantiate, a Constitution Bench of this Court in Navtej Singh Johar vs. Union of India,[71] held Section 377 of the Indian Penal Code, 1860 to be ultra vires of the Constitution, regardless of the fact that the provision was a part of the statute for over a century. The Court took note of the norms of contemporary society and declared them to be unconstitutional. If the doctrine of laches were to be applied strictly, time would run in favour of a constitutionally invalid statute, which cannot be allowed in the larger interests of justice and the transformative nature of the Constitution.

(b) Applicability of doctrine of laches to the present case

68. Adverting to the facts of the case, it seems that the two mitigating circumstances mentioned above are directly attracted.

69. First, the Petitioners have raised various substantial questions that affect the public at large, including the erosion of the culture of indigenous communities, discrimination against the State of Assam, and the larger perceived threat to the security of the country from immigration. Therefore, instead of being an in personam dispute between two individuals, the questions raised by the Petitioners directly or indirectly affect a large citizenry.

70. The question regarding the constitutionality of Section 6A raises significant public policy issues that involve ramifications for the original inhabitants of Assam, the rights of immigrants, and the security of the country. Hence, foreclosing such questions at the threshold on the grounds of technicality of delay would lead to an unjust outcome. Instead, considering it has been a long-standing issue and because any resolution will affect millions of individuals, a compelling policy rationale exists to adjudicate the matter on its merits and settle the issue conclusively.

71. Second, since the controversy pertains to the constitutionality of a statutory provision, the doctrine of laches ought not to be applied strictly to bar the claim at the very threshold. As discussed in paragraph 66, such constitutional adjudication cannot be made subject to any straitjacket rule of limitation. Challenges regarding the constitutionality of a statute require the Court to take a liberal approach and permit a certain amount of flexibility. A contrary approach would set a wrong precedent and act as a bar against challenging anachronistic laws that might no longer align with the ideals of constitutionalism. This would constitute an unsound legal principle since oppressive laws should not persist solely because they have been tolerated by society for a certain period.

72. Since the challenge in these cases relates to the constitutional validity of Section 6A, its consideration on merits ought not to be precluded on the grounds of delay. We reiterate that the doctrine of laches cannot be applied strictly. Whatever may be the ultimate view on the claims of the Petitioners, they are able to persuade us to examine the perceived harms, such as cultural erosion, the threat to the state’s security, damage to natural resources, etc., which cannot be strictly limited to a particular time-frame and could have occurred even after a lapse of time from the enactment of the impugned provision. In other words, even if Section 6A may not have been constitutionally invalid from the beginning, it might have incurred such invalidity subsequently. Hence, instead of closing the present challenge at the threshold, we shall proceed to analyse the merits of these claims to find out whether Section 6A has become ultra vires the Constitution with the passage of time and due to systematic failure of the legislative vision.

73. The Petitioners, however, may not be correct in contending that the issue of delay between the same parties was previously settled by the reference order dated 17.12.2014.[72] At the outset, we must note that the claim inter se the parties must not be construed strictly in constitutional adjudication such as the present one, since much larger questions of public importance are under consideration. Furthermore, it is imperative to note that a reference order does not represent a conclusive decision. Hence, the aforementioned contention of the Petitioners otherwise suffers from a factual error as the reference order cannot be construed as a final expression of views by this Court on any of the issues.

74. That apart, and as has been noted previously, instead of conclusively deciding the question of delay, this Court framed one of the specific questions as to whether delay should be considered for moulding appropriate relief. Thus, while the Court discussed the principle of delay in challenging the vires of Section 6A, it left the question open to be dealt with by a larger bench.

75. To conclude, while there has undoubtedly been a considerable delay in filing the instant writ petitions, the doctrine of laches cannot be applied strictly to disbar the claims at the threshold. This is so because the present proceedings raise substantial questions that affect the public at large and the constitutional validity of a statutory provision. If we were to decide otherwise, we would be, in essence, creating an artificial deadline for important constitutional issues. This would give rise to an unfair principle of law in the realm of constitutional adjudication.

76. We thus conclude that the Petitioners’ claim overcomes the preliminary hurdles, and cannot be dismissed at the threshold on the grounds of lack of judicial review or doctrine of laches.

*******

Challenges regarding constitutionality

77. Prior to examining the contentions articulated by the parties on the constitutionality of the provision and engaging in a discussion on the various legal issues involved, it is imperative to trace the history of this matter and have a holistic understanding of how the provision, Section 6A, came into being. This historical context sheds light on Assam’s evolving dynamics and challenges, which were marked by partition decisions and the subsequent establishment of regulatory frameworks governing movement and citizenship.

78. Before we begin our discussion on the political history of Assam, it is crucial to emphasize that this serves as a broad overview based on the material cited by both parties. It is not to be construed as an exercise of determining the factual veracity of competing versions of historical narratives and is not strictly germane to our legal analysis. It merely serves as a contextual background for those who might be unfamiliar with the origins of Section 6A and the present issue.

79. The region, known today as Assam, has historically been inhabited by diverse ethnic and linguistic communities. Throughout the sixteenth and seventeenth centuries, it was predominantly governed by the Ahom political authority, albeit with a brief period of Mughal rule. Subsequently, like numerous other regions across the nation, it came under British colonial administration in 1826.[73]

80. Prior to the beginning of the British colonial era, several parts of Assam fell under the dominion of the Burmese for a brief duration, during which the region underwent significant changes in its political and economic landscape. This period witnessed a substantial exodus of people from the valley, seeking refuge in the bordering towns of Bengal and other adjacent territories.[74] However, there was soon a change of hands in terms of control over these regions after the First Anglo-Burmese War.[75] By the middle of the nineteenth century, most of the Brahmaputra valley of Assam had fallen under British rule, and the East India Company assumed control over Assam. In 1874, a distinct province of Assam, administered by a Chief Commissioner, was established by amalgamating Goalpara, Cachar, Garo, Khasi and Jaintia Hills, and Naga Hills, with its capital at Shillong.[76]

81. Thereafter, in 1905, as part of the British partition of the Bengal Province, Assam became a constituent of the East Bengal region, with Dhaka serving as its capital, which is often regarded as the inception of friction between the Assamese and Bengali communities.[77]

82. Initially, during the partition deliberations, Assam was intended to be amalgamated with Bengal. However, this proposal encountered significant opposition from political leaders in Assam, who opposed the integration. They perceived the proposed amalgamation as another attempt to subject Assam to Bengali dominance, resulting in their opposition to the British tendency to treat Assam as an extension of Bengal.[78]

83. This period also witnessed first-hand, the blending of communities and groups between the two regions. Unlike present-day India, which has linguistically organised states, the then-eastern front of British India witnessed numerous culturally divergent communities living together. The population of Sylhet in modernday Bangladesh, for example, was then comprised of Bengalispeaking as well as Assamese-speaking people. This was representative of the fact that unlike the western border, in the eastern border, issues of culture and language were more at play.

84. After this period of unrest, the Nehru-Liaquat Pact of 1950 was signed between India and Pakistan, symbolising their mutual commitment to safeguard minorities and their interests in both nations. This period also denoted the Constitution of India coming into force, which contained a part prescribing different modes of citizenship, as already elucidated in paragraphs 19 and 21. In line with this, the Citizenship Act was enacted, empowering the Central Government to declare law on citizenship or nationality, the details of which have also been dealt with elaborately in the same.

85. Parallelly, in 1948, a permit system was instituted between West Pakistan and India vide the West Pakistan (Control) Ordinance, and subsequently, in 1952, a formal passport and visa system was introduced along the eastern border.[79] Until then, border traffic was almost entirely unregulated on the eastern borders. The span from 1960 to 1985 was marked by significant political turmoil, civil unrest, and violence in the country’s northeastern parts.

86. Amidst these developments, the NRC was initially prepared exclusively for the state of Assam in 1951. It intended to identify illegal immigrants entering the state from Bangladesh, utilizing data from the 1951 Census.

87. However, the scenario changed dramatically on 25.03.1971, when Pakistan initiated ‘Operation Searchlight’ to quell the Bengali nationalist movement in East Pakistan. The following day, on 26.03.1971, Bangladesh declared independence from Pakistan, triggering the Bangladesh Liberation War. Following these developments, in December 1971, India joined the war against Pakistan. While immigrants from East Pakistan (present-day Bangladesh) had been migrating to India since 1948, the wars of 1971 led to an influx of immigrants from Bangladesh into the State of Assam and other Indian states.[80]

88. Soon, there was anxiety surrounding the issue of electoral rolls in the Northeast region, fueled by concerns revolving around the influx of refugees from erstwhile East Bengal into Assam.[81] During this period, the Assam Students Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP) grew in popularity in the region. Thereafter, in 1979, the draft electoral rolls prepared for the byeelections in the Lok Sabha Constituency of Mangaldoi in Assam revealed the names of numerous Bangladeshi immigrants. This led the AASU and AAGSP to launch a 6-year-long agitation, now known as the ‘Assam Movement’, fearing that Bangladeshi immigrants would overwhelm the indigenous population of Assam.[82] During this period, political tensions escalated, marked by fierce debates and demonstrations concerning the influx of immigrants into Assam. Simultaneously, there were counter-demonstrations in Bengal, expressing solidarity with the Bengali-speaking communities in Assam. These events had a detrimental impact on the economy and trade in Assam, and eventually, in 1981, the President’s rule was imposed in the State.

89. In 1983, after more than a year of President’s rule, the Union of India decided to hold elections, despite a breakdown in negotiations over electoral roll revisions and escalating student-led protests.[83] However, these aspirations came to an end with the occurrence of the Nellie Massacre on 18.02.1983, resulting in a devastating massacre of people with severe casualties. It is believed that factors contributing to the tragedy included administrative failure, warnings of potential clashes being ignored, and underlying land-related tensions. The Nellie Massacre marked a turning point, transforming the once-peaceful student protests into a violent agitation that garnered national and international attention.

Thereafter, in 1984, negotiations between the Centre and AASU stalled, but in January 1985, the then Prime Minister expressed a willingness to resolve Assam’s disputes, leading to the repeal of contentious laws and concessions to calm the agitations.[84]

90. The student-led Assam Movement finally came to an end on 15.08.1985, with the signing of a Memorandum of Settlement known as the ‘Assam Accord’ between the Central Government and the leaders of AASU and AAGSP. The Assam Accord declared 01.01.1966 as the base date for the detection of illegal immigrants and created three classes of immigrants: first, those who came before 01.01.1966, including those in the electoral list of 1967; second, those who came between 01.01.1966 and 24.03.1971; and third, those who came on or after 25.03.1971. The first class of persons were to be regularized under the Assam Accord, while those belonging to the second class were to be detected as foreigners, and their names were to be deleted from electoral rolls. It was further provided that their names would be restored after the expiry of ten years from their detection. The third class of persons, i.e., those who came on or after 25.03.1971, were to be detected and expelled as per the Assam Accord. Subsequently, Section 6A was inserted into the Citizenship Act through an amendment to give effect to the provisions of the Assam Accord.

91. However, despite the enactment of Section 6A, the influx of illegal immigrants into the State of Assam from Bangladesh was stronger than ever. In 1998, the then Governor of Assam submitted a report to the then President of India highlighting the threat posed by large-scale migration from Bangladesh into Assam. Currently, there exist thousands of migrants who have been accorded citizenship under Section 6A and have been residing in the State of Assam for several years. Conversely, there are also hordes of immigrants who have entered and continue to enter the State of Assam illegally. Thus, there presently exist two sets of immigrants who need to be bifurcated and treated differently-one set who will be conferred citizenship in accordance with the auspices of Section 6A and the other set who are illegal immigrants.

92. Having dealt with this historical and political context, and with this background, it is now pertinent to peruse the issues invoking constitutional challenge against the validity of Section 6A.

iii. The preambular notion of fraternity

93. The Petitioners seek to enforce the preambular notion of ‘fraternity’. They have urged that the idea of fraternity, as encapsulated in the Constitution of India, is to be interpreted in the context of the unity and integrity of the nation. They argued against a global/transnational construction of the term, wherein the notion of fraternity is extended beyond the citizens of India. They asserted that the constitutional mandate in the Preamble pertains to fraternity amongst citizens and that this notion of fraternity might be destroyed when a legislative enactment such as Section 6A threatens to destroy the cultural demography of that citizenry. The Petitioners further contended that the influx of immigrants from Bangladesh into the State of Assam has jeopardized the very ideal of fraternity in India.

94. Contrarily, the Respondents submitted that the term fraternity means individuals having equal regard for each other and preventing relationships from being confined to specific clans. The Respondents stated that Section 6A reinforces the idea of fraternity, in the absence of which, society would be broken into a division between ‘others’ and ‘us’.

95. Having bestowed our consideration to the contentions set out by the parties, we must examine the meaning of the term fraternity and determine whether Section 6A violates or enforces the idea of fraternity.

(a) Meaning of ‘fraternity’

96. As articulated in the Preamble, the term ‘fraternity’ embodies a sense of collective brotherhood amongst all Indians. It serves as a critical element for national unity and social cohesion. Fraternity assumes paramount significance in reinforcing the ideals of equality and liberty, both of which are integral facets of the Preamble.[85]

97. In order to have a holistic understanding of what fraternity as an ideal encompasses, it is integral to examine the meaning of ‘fraternity’ as envisaged by the drafters of the Constitution, as well as in terms of other jurisdictions which also employ the notion. Delving into the Constituent Assembly Debates would not only shed light on the ambit of fraternity but would also reveal a consensus that the principles of equality, liberty and fraternity are to be perceived as an indivisible whole.

98. The word ‘fraternity’ was initially not included as a part of the Objectives Resolution, which had been proposed by Jawaharlal Nehru on 13.12.1946 and thereafter adopted by the Constituent Assembly on 22.01.1947. In fact, this very resolution provided the basis for the inclusion of the Preamble to the Constitution of India.

Dr. B.R. Ambedkar, however, emphasized the significance of adding the term fraternity into the Preamble, defining it to mean a sense of shared brotherhood among all Indians, and highlighted that it was imperative for national unity and social solidarity.[86] In pursuance thereto, Dr. Ambedkar stated as follows:

99. Dr. Ambedkar introduced the term ‘fraternity’ into the preambular values of the Constitution with the objective of advancing his vision of democracy and eradicating the issues posed by caste distinctions. His vision encompassed fostering a societal framework characterised by shared interests and interconnectedness amongst all Indians. Notably, neither the deliberations within the Constituent Assembly nor Dr. Ambedkar’s conceptualisation of fraternity suggests any inherent restriction of this principle to a specific community or segment of citizens. Instead, it was conceived as a concept intended to cultivate a sense of brotherhood amongst all individuals within society.[87] Dr. B.R. Ambedkar elucidated this core idea of fraternity in the following words:

100. The idea of fraternity was therefore envisioned as a deep sense of well-being for others and understood as essential to counterbalance individualism, thereby preventing anarchy and sustaining moral order in society. It emphasized that a thriving democracy could be achieved through fraternity, which enabled the notions of liberty and equality to support each other rather than undermine one another. Further, it gave rise to the belief that the ideals of equality, liberty and fraternity could not be divorced from each other, as equality and liberty without fraternity would result in the supremacy of the few over the many.[88]

101. During the deliberations of the Constituent Assembly, the concepts of equality, fraternity, and liberty were perceived as constituting a trinity, forming the very bedrock of democracy. The notion of equality was afforded considerable impetus on account of the prevailing graded inequality within Indian society, characterized by affluence for some and abject poverty for many. Recognizing that various approaches might not eliminate disparities in social and economic aspects of the citizens’ lives, they formulated the principle of “one man, one value”, intending to create a level playing field for all.[89] However, the framers believed that equality devoid of liberty could lead to the forfeiture of individuality. Moreover, they recognized that in the absence of fraternity, the harmonious coexistence of liberty and equality would not be inherent or natural, necessitating external enforcement measures.[90]

102. The genesis of the very notion of fraternity can be traced back to the French ideal of fraternity or fraternite, originating from the French Revolution and intricately connected with the principles of liberty and equality. This period in French history reflected a marked shift from feudalistic societies governed by hereditary status to a society aspiring to be a democratic ideal. This evolution was recognised as not just a political concept but as a period that emphasised collective rights over the individual.[91]

103. The emergence of fraternity as a concept in the French context began to see recognition with the Declaration of the Rights of Man and Citizen, which prescribed communal participation in contrast to individual rights in the interests of society. This was, in essence, a clarion call for the notion of fraternity, though it had not been fully articulated at that point in time.[92] It was only with the emergence of the Third Republic and the formation of the Paris Commune in 1871 that fraternity was articulated more clearly and reflected the people’s need for a society based on collective welfare and shared interests. The Constitution of the Third Republic then included and recognised the principles of liberty, equality and fraternity as cornerstones of French society. In this context, fraternity was not restricted to the idea of social cohesion but also extended to ensuring the dignity of each individual in a manner in which national unity and integrity were fostered. The evolution of fraternity, from a mere idea encompassing social values into a principle now embedded into the fabric of a nation’s identity, is indeed fascinating.[93]

104. Within the French context, fraternity transcended mere brotherhood, expanding to encompass a collective sense of solidarity among citizens. This journey of fraternity from a mere idea into a fundamental value shows the deeply entrenched political and social transformation that occurred in France. Fraternity, therefore, came to be understood as a sense of collective consciousness that unified individuals in their need for an equitable society.

105. Although fraternity is embedded in the constitutional fabric of both India and France, the manner in which they have come to be construed inherently differs. A nuanced differentiation can be discerned by examining them through the lenses of French and Indian perspectives. In the French context, the principle of fraternity was initially envisaged to symbolize a commitment towards the collective well-being of citizens and to showcase a bond that unified them in their aspirations for a just society. However, over time, the notion of fraternity in France came to be somewhat eclipsed by equality, which was perceived to be paramount, with a heightened emphasis on individual rights.[94] Conversely, in India, fraternity was perceived by the Constituent Assembly, as seen in Dr. Ambedkar’s speeches, as a means to realize equality and uplift marginalised groups. The divergence in the interpretation of the term fraternity by these two nations in relation to equality is thus distinctly evident.[95]

106. In the Indian context, the meaning of fraternity has thus entirely diverged from the French sense of the term and is intricately woven into the fabric of fostering social solidarity, uplifting marginalised groups, and achieving a more equitable society. Dr. B.R. Ambedkar’s introduction of the term ‘fraternity’ into the constitutional Preamble reflects a deliberate intention to use this principle as a means to promote unity and brotherhood.[96] In light of Dr. B.R. Ambedkar’s persistent efforts towards eradicating caste discrimination, his subsequent advocacy for fraternity among individuals appears to mirror his commitment to inclusivity. Unlike some Western perspectives, where fraternity may be overshadowed by an emphasis on individual rights, in India, fraternity is distinctly perceived as a vital instrument for realising equality and harmonising the diverse segments of society. It serves as a conduit for transcending societal disparities and working towards collective well-being.[97] Therefore, in the Indian constitutional context, fraternity assumes a dynamic and inclusive role, aligning with the broader goals of social justice, equality, and upliftment.

(b) Ethos of Section 6A is aligned with fraternity

107. Having examined the contentions presented by the Petitioners, it is imperative to scrutinize whether the preambular value of fraternity would be applicable to the immigrants entering into the State of Assam under the aegis of Section 6A.

108. In this regard, it would be apposite to consider whether such preambular values are justiciable in the first place. In the landmark case of Kesavananda Bharati v. State of Kerala,[98] this Court affirmed that while the Preamble may be employed to interpret ambiguous provisions of the Constitution, it, by itself, is not enforceable in a court of law. Indeed, our current comprehension of the preamble is evident. It serves as a tool for interpreting the Constitution and guiding our trajectory. However, akin to the Directive Principles of State Policy (DPSP), it was not envisaged as being directly enforceable. Nevertheless, the discourse on ‘fraternity’ holds relevance in the current context and will undeniably shape our interpretation of the pertinent laws at hand.

109. At this juncture, it would be essential to take into consideration the evolution of the principle of fraternity in terms of judicial construction to get a complete understanding of the meaning and scope of fraternity as it stands today. The Preamble to the Constitution provides us insight into the values that embody the Constitution. The Preamble declares India to be a sovereign, socialist, secular, democratic, and republic and secures justice, equality, liberty, and fraternity for all its citizens. Though the Preamble does not grant any substantive rights and is not enforceable in courts, a plethora of cases have engaged with the Preamble and considered it to be a guiding light in interpreting the provisions of the Constitution.

110. Judicial precedents discussing fraternity will aid us in understanding whether fraternity remains to be seen as a beacon promoting togetherness amongst diverse groups or whether it has become more restrictive in its scope over time. This Court has dealt with the idea of fraternity or, at the very least, referred to it in a myriad of case laws. It has consistently held that the term ‘fraternity’ means a sense of common brotherhood of all citizens. [99] This Court has also often reiterated that the ideals of liberty, equality, and fraternity should not be treated as separate entities instead, should be viewed as a trinity that secures empowerment and political justice for all citizens. Additionally, fraternity was interpreted as a principle that afforded the means to achieve national unity and the dignity of the individual. [100]

111. This Court in Indian Medical Association v. Union of India,[101] addressed multiple petitions that had been filed challenging the exemptions provided under law, which allowed a private, non-aided educational institution to admit the children of army personnel exclusively. While examining the constitutionality of the challenged provision, the Court highlighted the significance of access to education as a means to foster fraternity and further promote social cohesion and unity. In the cited case, the Court determined that the restrictive admission policy was an impediment to achieving fraternity in society. Although not spelt out explicitly in the judgment, it is clear that the Court understood fraternity as encouraging the intermixing of people and one which discourages exclusivity or endogamous social structures.

112. It was, however, in the seminal case of Nandini Sundar v. State of Chhattisgarh[102] that this Court, in the course of addressing issues pertaining to the appointment of Special Police Officers (SPOs) for the Salwa Judum in Chhattisgarh, extensively dealt with the aspect of fraternity. For context, the Salwa Judum was a militia formed and deployed to counter Maoist activities in the State of Chhattisgarh. This case brought to the fore several constitutional principles, including the ideals of fraternity, equality, the right to life, and personal liberty. This Court held that Section 9 of the Chhattisgarh Police Act, 2007 which allowed for the appointment of SPOs, violated the Constitution and delved into the relevance of the constitutional principle of fraternity.

113. In the aforesaid case, the Court interpreted fraternity as a safeguard against unchecked state power and an essential pillar for responsible governance. The Court held that state actions that dehumanized citizens violated the constitutional objective of the welfare of all citizens and would be wholly against the idea of dignity and fraternity, as enshrined in the Preamble to the Constitution. The Court further went on to underscore the significance of fraternity in shaping economic policies and stated thus:[103]

114. The very scope of fraternity beyond just being an ideal in the Preamble was thus expanded to be a principle that would create checks and balances on the system of governance and state actions.

115. Having examined the notion of fraternity from various perspectives, it can be deduced that the essence of fraternity, therefore, is fundamentally geared towards fostering interconnectedness among Indians and was envisaged to be a principle for uplifting marginalised sections of society.

116. Consequently, it might be antithetical to the essence of fraternity to deploy this inclusive constitutional value in a way which deliberately excludes large swathes of the population, who have been duly conferred citizenship through procedure established by law, from the protection of constitutional rights. In fact, our understanding of fraternity, as also applied by this Court in Indian Medical Association v. Union of India (supra), is that it encourages, if not compels, people to fraternise and intermingle with people dissimilar to them.

117. In many ways, the Petitioners want fraternity to be interpreted in a highly restrictive manner, which allows them to choose their neighbours. Since this approach runs contrary to the very idea and ethos of fraternity that was envisaged by the Constituent Assembly and as subsequently interpreted by this Court, it cannot be accepted. Our reading of the Constitution and precedents is that fraternity requires people of different backgrounds and social circumstances to ‘live and let live’. The nomenclature of fraternity itself is self-explanatory to the extent that it exhibits the notion of inclusiveness and togetherness, as opposed to restricted applicability. Thus, it becomes imperative to refrain from employing this concept in a negative manner that selectively applies it to a particular segment while labelling another faction as ‘illegal immigrants’, solely based on the alleged unconstitutionality of Section 6A.

118. In this light, when faced with the dilemma of disenfranchising millions or safeguarding a community’s endogamous way of life, this Court would certainly be compelled by the principles of fraternity to prioritize the former. Thus, in our considered view, the Petitioners contentions in this regard deserve to be rejected.

iv. Part II and Section 6A

(a) Section 6A and Articles 6, 7 and 11 of the Constitution

119. The Petitioners argued that our Constitution exhaustively addresses the conferment of citizenship to individuals who migrated from present-day Bangladesh and that the Parliament cannot legislate to the contrary without amending the Constitution. They asserted that Articles 6 and 7 prescribe a different regime for granting Indian citizenship to individuals who migrated from India to Pakistan or from Pakistan to India. They argued that ‘Pakistan’ encompasses Bangladesh, as it is a successor state to Pakistan, thus binding Parliament to the cut-off date of 19.07.1948 stipulated in Article 6 of the Constitution. Since these are constituent provisions and the Parliament enacted Section 6A through its ordinary legislative power, it could not have prescribed a different cut-off date in this Section for granting citizenship to immigrants from Bangladesh. The Petitioners further claimed that Parliament should have sought a constitutional amendment instead. Consequently, they contended that Section 6A is unconstitutional for being in conflict with Articles 6 and 7.

120. Per contra, the Respondents put forth a different view. They urged that Section 6A does not violate Articles 6 and 7 because these Articles operate in different contexts, both in terms of time and geography. They provided additional context on the cut-off dates prescribed in Articles 6 and 7, asserting that these dates were a remnant of the permit system, which never applied to East Pakistan. Referring to the Constituent Assembly Debates, the Respondents also demonstrated that it was never intended for these provisions to apply to East Pakistan. Further, they argued that the spirit and intent behind Section 6A align with those of Articles 6 and 7 and that striking down Section 6A would not serve the objectives of these Constitutional provisions.

121. The Respondents further argued that even if it is assumed that Section 6A conflicts with Articles 6 and 7, Article 11 of the Constitution is a non-obstante provision that grants Parliament the power to make laws regarding citizenship and that the other provisions of Part II of the Constitution cannot derogate from this power. In this regard, they relied upon Izhar Ahmed Khan v. Union of India,[104] where it is held that the Parliament can make a valid law even when it is against such provisions. This power is supplemented by Entry 17 of List I of the Seventh Schedule of the Constitution, which also empowers Parliament to legislate on the subject of citizenship.

122. The Petitioners refuted this plea, asserting that while Article 11 and Entry 17 of List 1 confer power upon Parliament, they do not include the authority to supersede other provisions within Part II of the Constitution. They interpreted Article 11 as a residual clause, empowering Parliament to enact laws that do not contravene other provisions within Part II. They argued that even if Article 11 admits multiple interpretations, the Court should adopt the construction that promotes harmony with the rest of the Constitution.

123. Considering these rival submissions, the issue that arises for consideration is whether Section 6A is violative of Articles 6 and 7 of the Constitution, and whether the Parliament had the power to enact Section 6A.

124. As we have specified previously in paragraphs 19 and 22 of this judgement, Article 6 specifies the conditions for granting citizenship to people who have immigrated to India from Pakistan.

125. The language of Article 6 unambiguously suggests that there exist two sets of conditions under this provision: for persons who migrated before 19.07.1948, and for those who migrated after this date. In terms of the former, Article 6 prescribes two further conditions: first, is the condition of birth/descent, mandating that such an individual, or either his parents or his grandparents must have been born in India; and second, is the condition of residence, prescribing that such an individual must have been a resident of India since migration. A third set of conditions is also prescribed for the people who migrated after 19.07.1948. This condition pertains to registration, which requires such individuals to have been registered as Indian citizens by an officer appointed for this purpose by the Government of India.

126. As a corollary to Article 6, and as previously discussed in paragraphs 19 and 22 above, Article 7 prescribes the condition for granting citizenship to people who migrated to Pakistan.

127. Thus, Article 7 mandates that a person who migrated to Pakistan after 01.03.1947 cannot claim Indian citizenship unless they fulfil three conditions: first, the person must have returned to India; second, such return must have been under permit for resettlement or permanent return; and third, that person must satisfy the conditions prescribed in Article 6 for a person migrating to India after 19.07.1948.

128. At this juncture, we may hasten to add that these conditions under Articles 6 and 7 covered both East and West Pakistan. This is visible from these provisions’ text, which explicitly states “territory now included in Pakistan”. Since Pakistan, at the time of the commencement of the Constitution (i.e., 1950), included both East and West Pakistan, creating any artificial distinction would militate against the text of these provisions. Accordingly, the Respondents’ contention that these Articles would not cover East Pakistan cannot be accepted.

129. While the Respondents have cited the speeches of various members of the Constituent Assembly to argue that Articles 6 and 7 were not intended to apply to East Pakistan, we cannot use the opinion of individual members of the Constituent Assembly to negate the text of the Constitution, which, by itself, is the best manifestation of the Assembly’s intention. While the usage of such external aid might have been possible had the text been ambiguous, it cannot be used in the present context because Articles 6 and 7 leave no room to doubt that that they extend to both East and West Pakistan.

130. Having delineated the scope and ambit of these provisions, it is pertinent to comprehend the criteria outlined in Section 6A for bestowing citizenship upon immigrants from former East Pakistan, which was summarized previously in paragraph 25 of this judgement.

131. A perusal of these different conditions reflects various points of congruency between Section 6A and Articles 6 and 7. First, Section 6A prescribes that the immigrant must have been of Indian origin, defined in Section 6A(1)(d) to mean the person/either of whose parents/grandparents were born in undivided India. Hence, similar to Articles 6 and 7, the condition of birth/descent is present. Second, similar to Article 6, which does not stipulate the condition of registration before 19.07.1948 but necessitates it thereafter, Section 6A also lacks a requirement for registration before the specified cut-off date (i.e., 01.01.1966) but imposes it afterwards. Finally, mirroring the provisions of Articles 6 and 7, Section 6A (2) and (3) introduce the condition of residence, mandating that the immigrant must have resided in India since their immigration.

132. Furthermore, Section 6A aligns with the fundamental purpose of Articles 6 and 7, which was to extend citizenship rights to those affected by the country’s partition. Articles 6 and 7 aimed to safeguard the rights of individuals who were previously Indian citizens but found themselves residing in a foreign territory due to the political circumstances surrounding migration. [105] Akin to this, Section 6A is also based on the same underlying policy reason of granting citizenship to the people of Indian origin migrating from Pakistan due to political disturbances in a foreign territory.

Accordingly, Section 6A is aligned with the Constitutional philosophy of Articles 6 and 7 and is not contrary to them.

133. Regardless of these similarities, Section 6A diverges from Articles 6 and 7 in terms of the cut-off dates. As discussed earlier, Articles 6 and 7 prescribe the cut-off dates of 19.07.1948 and 01.01.1947, respectively. However, Section 6A prescribes two different cut-off dates: 01.01.1966 and 25.03.1971. Immigrants who entered Assam before 01.01.1966 are granted deemed citizenship, and immigrants who entered Assam between these two dates are granted citizenship once they fulfil certain conditions. Immigrants entering Assam on or after 25.03.1971 are not granted citizenship and are impliedly declared to be illegal immigrants who must be detected and deported.

134. The Petitioners’ contention that Section 6A is unconstitutional as it prescribes different dates in comparison to Articles 6 and 7 cannot be accepted because Article 6 does not prohibit the granting of citizenship after the cut-off date of 19.07.1948. It only specifies the fulfilment of certain conditions, which, as mentioned above, are also present in Section 6A (3). While Section 6A (2) grants deemed citizenship without these conditions, the competence of Parliament to prescribe different conditions-which will be analyzed in detail in the later part-is well embedded in Article 11.

135. Similarly, while Article 7 prohibits citizenship to people who remigrated to India, this is only a sub-class of people who have been granted citizenship by Section 6A. Since Section 6A grants citizenship even to people who migrated for the first time, the class of re-migrants is severable from this provision. As will be discussed in the following paragraphs, the Parliament was competent to specify different conditions for this sub-class also.

Whether the Parliament had the competence to specify different conditions under Article 11

136. There is no quarrel among the parties that the Parliament has the power to enact laws on citizenship. This power is provided by Entry 17 of List 1 of the Seventh Schedule, which reads “Citizenship, naturalisation and aliens”. Further, the present situation is also covered by Entry 19, which reads, “Admission into, and emigration and expulsion from, India; passports and visas”. However, the parties are discordant to the extent of such power and whether law made by the Parliament can derogate from Article 6 and other provisions of Part II.

137. In this regard, it is pertinent to consider the objective and scope of Article 11 of the Constitution, which provides Parliament with the power to make laws on any matter relating to citizenship. Upon perusal of the text of Article 11, which was reproduced before in paragraph 19 of this judgement, two important considerations come to light. First, the phrase “Nothing in the foregoing provisions of this Part shall derogate” clearly fortifies that Article 11 confers overriding powers upon the Parliament to make laws even when they are against other provisions of Part II.

138. This was also duly acknowledged by a 5-judge bench of this Court in Izhar Ahmed Khan (supra), where it was explicitly noted that Article 11 grants Parliament the sovereign right to make laws on citizenship and that such laws cannot be impeached on the ground that they go against Articles 5 to 10 of the Constitution.

139. Incidentally, the overriding effect of Article 11 is also clearly established by various speeches in the Constituent Assembly. They highlight that the provisions of Part II were only meant to enact the law on citizenship for the time being at the commencement of the Constitution and the Parliament was empowered to enact provisions in the future, including making altogether new provisions.[106] As discussed in paragraph 16 earlier, this is consistent with the global practice of laying down only overarching principles of citizenship in the Constitution and empowering the Parliament to define the specifics through statutes.

140. From the phrase “Nothing in the foregoing provisions of this Part shall derogate”, the judicial pronouncement of this Court in Izhar Ahmed Khan (supra) and the accompanying speeches in the Constituent Assembly, we can appropriately conclude that Article 11 gives the Parliament broad powers to enact laws on citizenship, notwithstanding any inconsistencies with any other provision in Part II of the Constitution.

141. The second important aspect of Article 11, which lends support to this conclusion, is that it grants the Parliament the power to make ‘any’ provision regarding citizenship. A critical amendment to the text of the draft Article 11 further fortifies this conclusion. Initially, the draft Article granted Parliament the power to make ‘further provisions’. However, during a session of the Constituent Assembly on 29.04.1947, the President of the Assembly argued that the word ‘further’ might imply that Parliament should only make provisions in continuation of other Articles in Part II. Consequently, the word ‘further’ was replaced with ‘any’. This amendment highlights the framers’ intention to afford Parliament nearly unrestricted flexibility in crafting laws pertaining to citizenship.

142. Based on the analysis presented in this section, it can be concluded, and we hold so, that the Parliament indeed possesses the legislative power to enact laws concerning citizenship and that this authority is not restricted by the provisions of Part II of the Constitution.

(b) Section 6A and dual citizenship

143. The Petitioners, having not limited their contentions to the violation of Articles 6 and 7, also urged that since the immigrants did not renounce their citizenship before they were granted Indian citizenship, Section 6A enables dual citizenship and is therefore unconstitutional for violating Article 9. While the Respondents have not directly addressed this issue, it is vital to provide a comprehensive analysis for the sake of completeness.

144. The concept of dual citizenship means one has citizenship of two countries simultaneously. Across the world, there are various countries like China,[107] Japan,[108] Kuwait,[109] etc. that prohibit dual citizenship. Internationally, too, several countries have come together at various points to counter multiple citizenships. For instance, European nations that were members of the Council of Europe entered into the Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality, 1963, which, inter alia, provides that a person acquiring an additional nationality shall lose their previous nationality. Similarly, countries that were a part of the League of Nations (including India) entered the Convention on Certain Questions Relating to the Conflict of Nationality Law, 1930, to establish a commitment to abolishing dual citizenship.

145. In India, such citizenship is restricted by Article 9 of the Constitution and Section 9 of the Citizenship Act. Article 9 states that no person shall be granted Indian citizenship by Articles 5, 6, and 8 if such person has voluntarily acquired citizenship of a foreign state. As a corollary to this, Section 9 of the Citizenship Act provides:

146. While both Article 9 and Section 9 seemingly restrict dual citizenship, they operate in different time spheres. As was held by this court in Izhar Ahmed Khan (supra), while Article 9 contemplates the denial of Indian citizenship to a person who had acquired foreign citizenship before the Constitution came into force, Section 9 deals with the acquisition of foreign citizenship after the commencement of the Constitution.

147. However, while they operate in different time spheres, a common theme that runs across both these provisions is the restriction on dual citizenship. Using these provisions, the Petitioners have urged that since Section 6A does not mandate the express renunciation of the immigrants’ previous citizenship before granting them Indian citizenship, Section 6A runs counter to these two constitutional and statutory provisions.

148. At the outset, even if it is assumed that Section 6A grants dual citizenship, it does not run counter to Article 9. We say so for the reason that these two provisions operate in different fields. As discussed above, Article 9 restricts a person possessing foreign citizenship from acquiring citizenship under Articles 5, 6, and 8. However, Section 6A does not grant citizenship under these provisions and is rather a separate method enacted by Parliament by virtue of its power under Article 11. The question of conflict between Article 9 and Section 6A, therefore does not arise at all.

149. Further, Section 6A also does not conflict with Section 9 because Section 6A does not override the scheme of Section 9 and must be read complementarily thereto. In case an immigrant who has been granted citizenship by Section 6A is found to have dual citizenship, Section 9 can always be invoked to hold that such person has ceased to be an Indian citizen. By virtue of Section 9(2), read with Rule 40 of Citizenship Rules, 2009, the Central Government will determine the question of such acquisition of foreign citizenship as per the detailed procedure prescribed under Schedule III of the aforementioned Rules.[110] Since Section 6A is not a safe harbor from Section 9 and is rather subject to the scheme of restricting dual citizenship, it is not in conflict with Section 9 of the Citizenship Act.

150. However, Section 6A, by operation of law, presumes the renunciation of previous citizenship. As was discussed before in paragraph 25, Section 6A (2) and 6A (3) grant citizenship to immigrants, with a possibility of opting out of such citizenship by filing prescribed forms. If such forms are not filed, and the immigrants choose to retain Indian citizenship, the presumption is that the person is an Indian citizen only and has foregone their previous citizenship. For this, an analogy can be drawn with the foreign territories incorporated in India after independence, for which India passed various legislations that granted Indian citizenship without mandating the explicit renunciation of their previously acquired foreign citizenship.[111] These legislations provide Indian citizenship by default and an opt-out mechanism similar to Section 6A. In the event the person does not opt-out, the law presumes renunciation of previous citizenship.

151. Globally as well, various jurisdictions have held that citizenship can be lost through implied renunciation. For instance, Article 13 of the Constitution of Panama explicitly provides implied renunciation of citizenship. In the USA, Section 349 of the Immigration and Nationality Act, 1952, provides for the automatic termination of citizenship when specific actions are taken. Similarly, in the case of Lorenzo v. McCoy,[112] the Supreme Court of the Philippines held that express renunciation is not necessary for the forfeiture of one’s citizenship, and it could be terminated by the actions.

152. Similarly, by electing not to opt-out, immigrants involved in the present context are presumed to have implicitly renounced their previous citizenship as per the law. However, it is essential to acknowledge that this presumption regarding renunciation of citizenship is not definitive and is rebuttable. As elaborated earlier, if an individual is found to have voluntarily availed themselves of the benefits of foreign citizenship despite not opting out of Indian citizenship, such a person would fall under the purview of Section 9 of the Citizenship Act, allowing authorities to revoke their Indian citizenship and face consequential deportation.

153. Therefore, based on the aforementioned reasons, we are of the considered opinion that the framework outlined by Section 6A is that an individual falling under Sections 6A (2) and 6A (3) can only assert Indian citizenship. Such individuals are presumed to have relinquished their previous citizenship. If authorities have reasons to believe that the previous citizenship is still being exercised, they are empowered under Section 9 of the Citizenship Act and associated rules to take steps to revoke the Indian citizenship of the delinquent individuals. Consequently, it can be deduced that Section 6A does not contradict Section 9 of the Citizenship Act, and we declare so.

(c) Section 6A and the oath of allegiance

154. The Petitioners also contended that Section 6A contradicts Section 5 of the Citizenship Act (Section 5), which requires every citizen to take an oath of allegiance.

155. The Respondents refuted this argument by asserting that the failure to take the oath was inconsequential, and as such, an oath was not mandated for them.

156. A bare reading of Section 5(2) reflects that it requires the oath of allegiance specifically to be taken by persons who seek citizenship under Section 5(1), which, as summarized previously in paragraph 21, provides citizenship by registration upon making an application to the Central Government.

157. Hence, Section 5(2) requires an oath for a specific mode of acquisition of citizenship. Similarly, under the Citizenship Rules, 2009, the oath is limited to certain modes, such as citizenship by registration under Section 5, citizenship by naturalization under Section 6, etc. Since Section 5(2) does not mandate the oath for every form of citizenship, the immigrants cannot be said to have violated Section 5 by not taking the oath. Likewise, it is difficult to hold that the immigrants have contravened any constitutional provision, as the Constitution does not explicitly mandate an oath for citizenship.

158. Moreover, the absence of such an oath does not absolve the immigrants from their obligation to respect the law and order of India. Even when such oath is not taken before acquiring citizenship, every citizen has to compulsorily abide by the norms of the Constitution, statutory laws, and other rules and regulations. We need not further emphasise that once the immigrants have become Indian citizens by operation of Section 6A, they are regulated by the Constitution of India, the laws framed under it and the values enshrined within them. Hence, the explicit lack of an oath of allegiance before the conferral of citizenship by Section 6A does not absolve the immigrants covered under this provision from following the laws of our country, just as any other citizen of India.

159. Hence, on account of the above-stated reasons, Section 6A cannot be run down on the premise that it does not mandate an oath of allegiance.

v. Article 14 and classification under Section 6A

160. In addition to the numerous other grounds, the Petitioners have vehemently contended that Section 6A falls foul of Article 14 as it treats equals unequally. They argued that the selective application of Section 6A solely to the State of Assam exhibits hostility against it in comparison to other states. They contended that since the issue of illegal immigration from East Pakistan was also prevalent in States like West Bengal or, rather, was significantly greater in comparison, hence singling out Assam is unconstitutional. The Petitioners further argued that such recourse is unjustifiable and that geographical considerations could not be the determining factor for applying laws differently. In support of their contention that the classification under Article 14 has to be on a reasonable basis and based on lawful object, the Petitioners cited, inter alia, Nagpur Improvement Trust v. Vithal Rao[113] and Subramanian Swamy v. CBI.[114]

161. In response, the Respondents have first contested the maintainability of the Petitioners’ plea by asserting that Article 14 can only be invoked by individuals who are alleged to have been unfairly excluded from benefits granted to others and not by those singled out and subjected to restrictions alone. It is the Respondents’ case that Article 14 ensures equality in benefits provided but not in liabilities imposed. Given that the Petitioners’ claim falls into the latter category, the Respondents contended that the same would not be maintainable. Second, the Respondents argued that a statute cannot be struck down as violating Article 14 merely because it does not encompass all classes, as the Parliament wields discretion in legislating for varying degrees of harm. Citing precedents such as the State of M.P. v. Bhopal Sugar Industries Ltd[115] and Clarence Pais v. Union of India,[116] the Respondents countered the Petitioners’ arguments by asserting that Parliament can make reasonable classifications and enact different laws based on territorial basis, thus justifying the differential treatment in granting citizenship. Third, the Respondents argued that Assam’s unique situation, marked by historical conflict, warrants differential treatment under Section 6A, ensuring that equals are not treated unequally. In this light, the central issue that arises for our consideration is whether Section 6A contravenes Article 14 of the Constitution.

162. Article 14, as widely understood, guarantees that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. Typically, a claim under Article 14 is brought forth by an individual contending that they have been unfairly excluded from the benefits or protection under law. However, the Petitioners’ argument diverges from this norm since they do not assert that they have been excluded from a benefit extended to similarly situated individuals. Instead, the Petitioners are contending that their rights under Article 14 are infringed because they alone have been statutorily compelled to bear the burden of Bangladeshi immigrants. Before examining whether Section 6A treats equals unequally, it is crucial to address whether the Petitioners have the locus to invoke a claim under Article 14 in the first place.

(a) Maintainability under Article 14

163. A bare reading of Article 14 indicates that it confers individuals with equality before the law and is not restricted to mere equality for the benefits provided under law. This provision came to be interpreted in the State of W.B. v. Anwar Ali Sarkar.[117] In this case, a 7-judge Bench of this Court dealt with the challenge against the West Bengal Special Courts Act, 1950, which allowed the State government to refer certain offences to special courts. This Court noted that the procedure in such special courts was separate from the Code of Criminal Procedure and curtailed the rights of the accused. Accordingly, it held that since the Act singled out certain cases and imposed restrictions on them, it violated Article 14. For this, the Court enunciated the principle that as per Article 14, “all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed”.[118]

164. The argument of the Petitioners is similar. They contest that Section 6A has singled out the State of Assam alone vis-a-vis other Indian States situated alongside the Bangladesh border and has curtailed the rights of only its original inhabitants. Accordingly, their plea of violation of Article 14 requires determination on merits.

165. This position is also clearly buttressed in John Vallamattom v. Union of India,[119] in which the Court was concerned with a similar question regarding the imposition of restrictions upon Indian Christians alone and not on citizens belonging to other religions. Not only did the Court treat such a claim as maintainable under law, but it also held the provision to be violative of Article 14 because it applied restrictions on one class alone:

166. Given the law cited above, the Petitioners’ assertion founded upon Article 14 cannot be invalidated at a preliminary stage merely because they are seeking equality in regard to a restriction as opposed to a benefit. Hence, the Respondents’ objection regarding the maintainability of the Petitioners’ claim under Article 14 is liable to be rejected.

(b) Section 6A vis-a-vis Article 14

167. The Petitioners argued that the exclusive application of Section 6A to Assam violates Article 14. They contended that by burdening Assam alone with the obligation to accommodate immigrants, Section 6A has detrimentally affected its natural resources and indigenous population. Furthermore, they asserted that since immigrants were also present in other States, there was no reasonable basis for discriminating against Assam and applying Section 6A solely to this State.

168. It is now a settled principle of law that the right to equality enshrined under Article 14 is not a mechanical idea of parity. Article 14 requires the legislature to treat equals equally, but it also allows for differential treatment if the characteristics of the classes differ.[120] In fact, treating unequal entities alike and subjecting them to the same laws could potentially lead to greater injustice. Therefore, rather than enforcing a fixed procrustean notion of equality, Article 14 permits the legislature to classify individuals into different groups and apply distinct norms accordingly.

169. While the legislation can indeed classify persons into different groups and apply distinct standards, such classification must be reasonable. This Court has acknowledged that the precise parameters of what constitutes ‘reasonable’ has not been firmly established, and there is no single test to determine the reasonableness of a classification. [121] However, while there is no straitjacket formula to determine reasonableness, certain yardsticks can be used to evaluate it, broadly categorized into the form and object of the classification.

Yardsticks to check the reasonableness of classification

170. In terms of the form, the classification should not be based on arbitrary criteria and must instead be based on a logic which distinguishes individuals with similar characteristics i.e., the equals from the persons who do not share those characteristics- the unequals. Apart from requiring such differentia, this prong requires that the classification must be intelligible, such that it can be reasonably understood whether an element falls in one class or another.[122] If the class is so poorly defined that one cannot reasonably understand its constituents, it will fail this test of ‘intelligible’ differentia. Therefore, instead of being based on arbitrary selection, the classification must be supported by valid and lawful reasons.[123]

171. Hence, using an intelligible criterion, the classes must be constituted in a manner that distinguishes the components of that class from the elements that have been left out of the class. This is instantiated by State of Kerala v. N.M. Thomas,[124] where a 7-judge bench was dealing with the challenge of exemption granted to Scheduled Castes from the departmental test required for promotion. The Court held that the same was based on intelligible differentia, as the persons belonging to the exempted class, i.e., the Scheduled Caste, differed from those excluded from this class.

172. At this juncture, it is essential to raise the question that if every person or object shares similarities and differences with others in numerous ways, how do we determine whether they are similar enough to be categorized together? To put this into context using an oft-quoted example-assume a law is enacted to create two classes of vehicles, one allowed inside the park and another prohibited.[125] In this scenario, a motorcycle is similar to a child’s bicycle in that both these locomotives have two wheels but are dissimilar to the extent that the former operates with an engine and can achieve higher speeds. Further, while a bicycle differs from a motorcycle, it possesses characteristics similar to those of an electric motorcycle since both these vehicles do not emit pollution in the park. Simultaneously, an electric motorcycle is comparable to a fuel-based motorcycle due to their shared propulsion method by an engine, despite their disparity in pollution emissions. In light of these considerations, would such a classification be deemed reasonable if bicycles and electric motorcycles were grouped together as one class, excluding fuel-based motorcycles? Since different variables exist for checking the similarities and dissimilarities, how do we ascertain that ‘similar’ elements are effectively grouped together?

173. This Court has held that the classification must withstand the test akin to the Wednesbury principles such that the classification shall consider all the ‘relevant’ similarities and disregard insubstantial or microscopic differences.[126] However, this also does not answer the question conclusively, as one must still know the criterion for gauging ‘relevance’. For instance, in the example above, we still do not know whether being propelled by an engine should be a relevant criterion or not causing pollution should be the basis of classification!

174. This leads to the second prong of the test, which requires the classification to be as per the object of the statute.[127] This Court has held that while determining who qualifies ‘similarly situated’ individuals in the given circumstances, the court must see the purpose of law:[128]

175. Hence, in the hypothetical above, the purpose of the law behind restricting the entry of vehicles inside the park will provide the standard of relevance for differentiating vehicles into separate classes. For instance, if the purpose is to stop pollution inside the park, electric motorcycles and bicycles can be grouped in the class of permissible vehicles. In contrast, vehicles based on petrol or diesel can be grouped into separate classes of restricted vehicles. However, if the purpose of the statute is to prevent people inside the park from getting hurt, children’s bicycles might be allowed, but other vehicles might be grouped and restricted.

176. This prong of the test is also echoed in Rustom Cavasjee Cooper v. Union of India,[130] in which an 11-judge Bench of this Court held that the object of the statute was to foment economic development through the assistance of banks, and from a resource standpoint, this development could be more effectively facilitated by 14 banks in particular. Consequently, the Court ruled that classifying these 14 banks in a separate class was based on reasoning that had a nexus with the object of the statute.

177. To sum up, a classification is reasonable if it differentiates between similar and dissimilar elements, if such distinction is intelligible, and if the similarities and dissimilarities have nexus with the purpose of the statute.[131]

178. Further, within this twin-test framework of checking the form and object of classification, this Court has held that the effect of the statute must also be considered.[132] Instead of a mere formalistic study of checking the intelligible differentia and nexus with the object, this Court would undertake a normative analysis and strike down a classification if the object itself is discriminatory or leads to a prejudicial outcome not conducive to constitutional morality.[133] This effectively prevents the test of reasonable classification from becoming a mere formula and, instead, ensures that constitutional values are protected when the object itself is unjust.

Qualifications regarding the yardsticks

179. Having established the yardsticks for the reasonableness of classification, it is important to note two crucial qualifications to complete the understanding of this test. First, while establishing a nexus with the object of the statute is necessary, it is not essential to demonstrate that the classification was the optimal method to achieve the object in question. To this end, this Court has held that:[134]

180. Second, when gauging the reasonableness of classification, the Court must adopt a pragmatic view and refrain from deeming a classification unconstitutional solely because it is marginally under-inclusive.[135] In adjudicating the validity of a statute, the concept of under-inclusiveness arises when a classification within the law fails to encompass all individuals similarly situated with respect to the law’s intended purpose.[136] The approach of Indian courts towards under-inclusive legislation generally exhibits tolerance[137] on the premise that the legislature is “free to recognize degrees of harm”[138] and is allowed to “hit evil where it is most felt”.[139] Moreover, this Court has also justified some under-inclusive classifications on the grounds of administrative convenience and legislative experimentation.[140]

181. Likewise, in Basheer v. State of Kerala,[141] this Court upheld the validity of the law as long as it could be reasonably discerned based on intelligible differentia that advanced the object of the statute. The Court emphasized that merely because there is marginal under-inclusivity or the presence of cases falling on both sides of the dividing line, the law would not be declared as ultra vires of Article 14. In this vein, it held that:

182. This principle was reiterated in Subramanian Swamy v. Raju,[142] where it was argued that individuals under the age of 18 could demonstrate maturity, suggesting that age requirements should, therefore, be flexible under Article 14. While rejecting this argument, the Court held that categorization does not have to create classes with arithmetic precision, and instead, it would suffice if the classes are broadly comparable.

183. Having identified the criteria for evaluating the constitutionality of classifications, we can now proceed to analyse whether Section 6A is constitutionally valid.

Reasonableness of classification as per Section 6A

184. To assess the reasonableness of the classification made by Section 6A, it is imperative to delve into the background of this provision.

185. As discussed earlier, Section 6A grants citizenship to those who migrated from East Pakistan into India before 25.03.1971. This grant of citizenship was prompted by several factors, with two primary considerations:

186. The pertinent question that arises now is why such citizenship was granted exclusively to immigrants entering Assam. As acknowledged by the Union of India in its affidavit, the issue of immigration also existed in West Bengal. Therefore, if individuals from Bangladesh were immigrating to other States as well, we must ask what criteria justified conferring citizenship solely in Assam.

187. The answer to this question lies in history, specifically when Section 6A was enacted. Between 1980 and 1985, the Government of India engaged in extensive negotiations with representatives of various bodies in Assam. Eventually, an agreement was reached among the Government of Assam, the Government of India, the AASU, and the AAGSP. According to this agreement, the movement’s representatives against foreigners in Assam agreed to call off the agitation in exchange for granting Indian Citizenship to only a limited category of immigrants in Assam. As a result, the government also extended benefits to those involved in the agitation and committed to focusing on the socio-economic development of Assam, with particular emphasis on building educational institutions. Known as the Assam Accord, this agreement represented a political compromise that specifically granted citizenship to immigrants in Assam based on the terms agreed upon in the Accord.

188. Section 6A was inserted to advance this political settlement established through the Assam Accord. The long title of the Citizenship Amendment Act, 1985 captures this by stating that, “Whereas for the purpose of giving effect to certain provisions of the Memorandum of Settlement relating to the foreigners’ issue in Assam (Assam Accord) which was laid down before the House of Parliament on the 10th day of August, 1985 it is necessary to amend the Citizenship Act, 1955.”

189. Since section 6A was predicated on the terms of the Assam Accord, it extended citizenship solely to immigrants in Assam because the Union of India had exclusively engaged in this accord with Assam. This serves as the basis of intelligible differentia vis-a-vis other States. As discussed earlier, in assessing the reasonableness of classification, the Court must ascertain whether relevant factors were considered and whether similarly situated individuals were grouped in alignment with the law’s objective. Both these criteria are met in this instance. Section 6A duly considered the pertinent factors, notably that the Assam Accord pertained solely to the State of Assam. Since a piquant situation such as that in Assam did not exist in any of the other States, Section 6A’s objective did not extend to allowing such citizenship in these other States. Hence, the classification between the State of Assam and other States had a direct nexus with the object of the statute.

190. The next question that arises before us is whether the Court should go one layer further and hold that since such an agreement was entered only with the State of Assam, the said exercise is liable to be construed as violative of Article 14 or whether the Union of India ought to have entered into similar agreements with other States? This has to be answered in the negative since such a determination falls outside the scope of judicial review, as this Court being not a representative body, should refrain from substituting its judgment for that of the elected representatives. The decision to enter into political compromises and agreements is a prerogative of the political entities involved, based on the specific circumstances and negotiations at hand. In the case of Assam, the unique situation and the negotiations conducted between 1980 and 1985 led to the Assam Accord, wherein certain benefits were extended to the State. However, it may not be appropriate for us to venture into the exercise of analysing whether similar agreements should have been pursued with other States like West Bengal.

191. Apart from the cases discussed while analyzing Issue in (Judicial Review) (supra), such judicial restraint has also been advocated by foreign courts. Lord Ruskill, in a 5-judge bench of the House of Lords in Council for Civil Service Union v. Minister for the Civil Service,[144] elucidated that:

192. Indeed, India’s federal structure allows for diverse relationships between the Union and its constituent States, enabling the Parliament to engage in different agreements based on distinct regional aspirations, political needs, and state-specific requirements. The Assam Accord, along with the introduction of Section 6A, is not the only instance of such political compromises. Historical records document numerous occurrences, such as Article 371A of the Constitution, which was inserted pursuant to the agreement between the Government of India and leaders of the Naga Peoples Convention.[145] Similarly, Article 371G was incorporated pursuant to a memorandum of settlement between the Government of India, the Government of Mizoram and the Mizo National Front.[146] Identical is the basis of Article 332(6), which was based on the agreement between the governments of India and Assam and the Bodo Liberation Tigers.[147] These agreements and provisions are based on asymmetric federalism, recognizing that different States may have unique circumstances and requiring differentiated treatment.

193. Moreover, this conclusion is also supported by various decisions of this Court, which have held that based on the unique historical circumstances of each State, the States may be grouped under different classes for the purpose of reasonable classification under Article 14.[148]

194. We thus do not find any fault with the government, nor do we dictate that similar agreements should have been made with other States when Parliament entered into a political agreement with Assam alone based on its unique historical situation.

196. As against these considerations, the Petitioners have not been able to conclusively establish that other States were similarly placed. It is an established principle of law that there exists a presumption of constitutionality that underpins legislative enactments unless proven otherwise.[149] With respect to Article 14 specifically, this Court has dismissed claims pertaining to discrimination when insufficient material was presented to support the claim.[150] It has been repeatedly held that to succeed with a claim under Article 14, a mere plea regarding differential treatment is insufficient, and the Petitioner must show that similarly placed classes were discriminated against unjustifiably.[151]

197. While Mr. Divan, learned Senior Counsel representing the Petitioners, argued that the burden would shift unto the State once the Petitioners established prima facie evidence of unequal treatment, this shift primarily occurs when the classification is ex facie arbitrary, such that the unjust discrimination is so apparent that no proof is required.[152] In such circumstances, the onus must shift because the claimant cannot be burdened to disprove the absence of reasons when there are none.

198. However, unless the legislation is clearly arbitrary, this onus cannot be reversed liberally, as sought by the Petitioners. In the present case, the classification was not ex-facie arbitrary as it was grounded in the legitimate context of the unique circumstances prevailing in Assam. In addition, as discussed in paragraph 192, many States in India share a sui generis relationship with the Union, thereby raising the threshold for establishing ex-facie arbitrariness of Section 6A. Accordingly, the burden rested upon the Petitioners to rebut this presumption and demonstrate that other States were also comparably situated and faced similar levels of violence.

199. The illustrated burden has not been discharged by the Petitioners, and this Court is not engaging in a fact-finding endeavor at this stage. We are, therefore, bound to uphold the presumption of constitutionality and assume that the legislature has duly applied its mind and has taken into consideration relevant circumstances.

200. Further, the implementation of the Assam Accord and Section 6A brought quietus to the then-ongoing discord while concurrently enabling India to uphold its diplomatic commitments to Bangladesh and address humanitarian concerns. Although there is merit in the concern surrounding Assam alone having to shoulder the burden of these immigrants, it must be noted that this is not attributable to Section 6A alone. It is well documented, both by historians and by previous decisions of this Court, that incessant migration from Bangladesh has continued post-1971. It was neither the intention nor the effect of Section 6A to give shelter to this latter class of immigrants. Indeed, a large cause of the Petitioners’ grievance is the government’s failure to give effect to this latter part of the Assam Accord and our citizenship regime-which envisages timely detection and deportation of these post-1971 immigrants.

201. However, even if it is assumed that other States are similarly placed and should have been included thereunder, this alone would not render Section 6A unconstitutional.

Under-inclusiveness and unconstitutionality of Section 6A

202. As was discussed previously in paragraphs 180 to 182 of this judgement, Courts are generally tolerant of marginally under-inclusive legislations and recognize that similar cases may fall on both sides of the dividing line, provided that there is a broad discernible classification based on intelligible differentia.[153] While analyzing validity under Article 14, the Court has to be cognizant of the fact that any division done by a classification cannot be mathematically precise and accurate. As long as the broad purpose of the law is being fulfilled, a classification cannot be deemed unreasonable.

203. We are thus of the considered opinion that even if there are States that could share similar characteristics with Assam, the comparison should be between two broad classes: Assam and the rest of India, rather than each individual constituent of these two classes. Since other States, in general, were not facing similar issues, the differentiation in classes was reasonable. Hence, even if some States like West Bengal were placed similarly to Assam, that in and of itself would not lead to holding Section 6A unconstitutional. Accepting the Petitioners’ contention and striking down Section 6A on the grounds of non-inclusion only of West Bengal would amount to allowing an under-inclusivity challenge in disguise, which, as discussed before, is not generally permitted by this Court.

204. Instead of comparing borderline cases such as West Bengal with Assam, the comparison ought to be between Assam and an average constituent of the other class, i.e. the rest of India. As analysed in previous sections, Assam and the rest of India are distinguishable on the basis of the unique political situation created in Assam by the influx of immigrants. The classification under Section 6A, therefore, is not violative of Article 14 simply because it is applicable to the State of Assam alone.

205. On the basis of the aforesaid reasoning, it is held that Section 6A is not ultra vires Article 14 of the Constitution of India.

vi. Manifest arbitrariness

206. Citing Shayara Bano v. Union of India,[154] the Petitioners argued that a provision can be struck down as unconstitutional if it is manifestly arbitrary. To prove that Section 6A is manifestly arbitrary, the Petitioners contended that:

207. The Petitioners also contended that the expression ‘ordinarily resident’ is vague as it does not prescribe any yardstick for the number of days required to qualify the same. In this light, the Petitioners have cited this Court’s decision in Harakchand Ratanchand Banthia v. Union of India[155] to contend that when key concepts in a provision are vague, the same ought to be struck down.

208. Per contra, the Respondents contended that the challenge to Section 6A under Article 14 on the grounds of being ‘manifestly arbitrary’ is untenable as there is an underlying rationale for the cut-off dates. It was submitted that the validity of 01.01.1966 as the cut-off date is severable from the validity of 25.03.1971. Hence, even if it is held to be arbitrary, Section 6A as a whole cannot be held to be unconstitutional. The Respondents also contended that the very objective behind Section 6A and the Assam Accord, as a whole, reflect a constitutional tradition of accommodating differences within Indian polity through asymmetric federal arrangements. Lastly, the Respondents have submitted that the term ‘ordinarily resident’ has been defined by this Court in Arunachal Pradesh v. Khudiram Chakma[156] and hence is not vague.

209. The issues that fall for our consideration are four-fold:

(a) Relation between Article 14 and arbitrariness

210. At the outset, it is pertinent to address that apart from the reasonable classification aspect of non-discrimination discussed in the preceding section, Article 14 also prohibits manifestly arbitrary actions. The principle underlying the same is that if an act is arbitrary and no rational basis exists for its application, it may lead to differential application on similarly situated persons. Hence, such arbitrariness is not only antithetical to the notion of equality, it is also prohibited under Article 14.

211. The absence of arbitrariness, or non-arbitrariness, as an essential component of the rule of law and a concomitant need in Article 14 is sufficiently evident. The relation between rule of law and arbitrariness was also traced in Indira Nehru Gandhi v. Shri Raj Narain[157] and thereafter, in E. P. Royappa v. State of Tamil Nadu,[158] wherein equality was observed to be antithetical to arbitrariness. Furthermore, it was underscored that when an act is arbitrary, it inherently embodies inequality in political logic and constitutional jurisprudence, thus contravening the principles enshrined in Article 14. It is imperative to understand the significance of logic as one of the critical facets behind state action, the absence of which would render such action susceptible to arbitrariness.

212. This Court further elaborated upon the relationship between Article 14 and the conception of non-arbitrariness in the seminal case of Maneka Gandhi v. Union of India,[159] wherein after emphasizing the dynamic nature of ‘equality’ and citing the ‘arbitrariness’ doctrine as formalized through EP Royappa (supra), it was observed by PN Bhagwati, J. (as His Lordship then was) that:

(b) Constituents of manifest arbitrariness

213. The test of ‘manifest arbitrariness’ itself was crystallized in the authoritative precedent set out in Shayara Bano v. Union of India (supra), where this Court dealt with the challenge to the practice of ‘triple talaq’ as recognized in the Muslim Personal Law (Shariat) Application Act, 1937. In that case, this Court over-ruled its previous decision in State of AP v. McDowell & Co.,[160] wherein it held that an enactment cannot be struck down on the grounds of it being arbitrary or unreasonable and that some constitutional infirmity has to be found before invalidating an Act.

214. Thus, the test of ‘manifest arbitrariness’ was set out in Shayara Bano (supra) as follows:

215. The test of ‘manifest arbitrariness, as propounded in Shayara Bano (supra), was eventually relied on in a catena of decisions including Joseph Shine v. Union of India,[161] and is the prevailing law on this issue.

(c) Facets of the test of manifest arbitrariness

216. The term ‘irrationality’ refers to the lack of reason or logic. While highlighting the need for the presence of clear reason or logic, this Court in Cellular Operators Assn. of India v. TRAI,[162] determined that the legislation, statute or provision being challenged must be supported by a rationale. The rationale demonstrates the application of intelligent care and observation in the enactment of such laws or provisions. To this end, it was held that:

217. Further, in Joseph Shine (supra), this Court emphasized the underlying logic while striking down the provision prohibiting adultery:

218. Still further, while the test of manifest arbitrariness requires the presence of logicality, such reasoning does not have to be stated explicitly and can be discernable from the facts and circumstances.[163] However, it should be noted that the converse may not hold. In other words, even if the reason or rationale behind the impugned provision is expressly stated, it does not automatically guarantee non-arbitrariness. Such reason also needs to align with constitutional morality and public interest, and must bear a nexus with the object of the statute. The aspect of irrationality, as found in the test for ‘manifest arbitrariness’, thus, does not solely imply the absence of reason but also requires alignment with constitutional morality. Hence, the legitimacy of the reason or logic behind the impugned legislation should be viewed from the lens of constitutional ideals. This was so observed by this Court in Joseph Shine (supra), wherein it was clarified that irrationality does not merely denote the absence of reason but also requires that such reasoning be in harmony with constitutionalism.

219. We may hasten to add that, the legitimacy of the reason behind the legislation that has been impugned must be viewed from the lens of public interest also. This Court, in Hindustan Construction Co. Ltd. v. Union of India,[164] struck down Section 87 of the Arbitration and Conciliation Act, 1996, on the ground of manifest arbitrariness by observing that it was against public interest. This was also observed in Manish Kumar v. Union of India (supra), that the golden thread running through this ground, making up the doctrine of manifest arbitrariness, is the absence of public interest.

(d) Extent of review under manifest arbitrariness

220. The standard for applying the test of ‘manifest arbitrariness’ is reflected in the word ‘manifest’, which signifies that the arbitrariness should be palpable and visible on the face of it.[165] Hence, while examining whether a provision is manifestly arbitrary, Courts should practice judicial restraint and must not substitute their will against that of lawmakers.[166] Using this test, Courts cannot question the wisdom of the policy but can only test its legality in terms of the aforementioned grounds.

221. Such judicial restraint becomes all the more necessary while testing the arbitrariness behind a bright-line test. In law, the bright-line test is a clearly defined norm that does not leave a scope of interpretation. For instance, consider a legal requirement stipulating that individuals must be 18 years old to marry. Such a rule leaves no room for interpretation. In this context, it could be argued that if maturity is the rationale behind marriageable age, the use of the bright-line test introduces arbitrariness into legal standards, as a person aged 17.5 years old may in theory be more mature and suitable for marriage than someone aged 18.5 years old.

222. The fallacy in this argument can be elucidated by the Sorites paradox, a logical quandary generated by vague terms, with blurred boundaries of application. To give an oft-quoted example, consider defining the term ‘heap of wheat’ based on the number of wheat grains. If a collection of N number of grains is called a heap, removing one grain would not alter the assessment because the difference between a heap and non-heap cannot be of one single grain. By the same reasoning, removing two wheat grains would not change the classification. Extending this logic incrementally, by deducting one wheat grain at a time, one could argue that even a heap with N minus N grains would not be a heap, leading to a fallacious conclusion.

223. Applying this paradox to the above illustration, if an individual of 18 years is deemed mature enough for marriage, then logically, someone who is 18 years minus one day should also be considered mature. Following the same reasoning, one could argue that a person who is 18 years minus 365 days, effectively 17 years old, would also meet the maturity criterion and therefore, the stipulation of 18 years as the minimum age appears arbitrary, as it fails to account for the potential maturity of individuals who are younger. As already explained, there exists an inherent fallacy in this argument, and hence, it ought to be rejected.

224. In that sense, every bright-line test, to some extent, is arbitrary. However, not every arbitrariness crosses permissible limits inherent in law. Indeed, the law sometimes prescribes these heuristic devices because the cost of arbitrariness is less than the gains received by prescribing a clear standard instead of keeping it vague. To put it differently, where arbitrariness is necessitated for a legislative distinction, the object of such a legislative act is also to prevent manifest arbitrariness.

225. To explain using another analogy, let us consider the context of setting speed limits. Juxtapose two scenarios: one, where a sign is posted saying “do not drive faster than 60 kmph”; and second, where the sign says, “do not drive fast”. Following the logic discussed earlier, the 60 kmph standard appears arbitrary because if 60 kmph is deemed fast, then 59 kmph should also be considered fast, yet it would not be restricted. However, if the standard is left vague as “fast”, the consequences could be unjust and manifestly arbitrary. Some cars might exceed 80 kmph, leading to potential legal disputes when stopped. The lack of precise regulation could result in ineffective traffic control and costly litigation for public institutions. Conversely, if law enforcement clamps down to limit fast driving, it could create a chilling effect, slowing traffic even below the optimal speeds. Thus, while a 60 kmph limit may appear arbitrary, yet implementing that as a bright-line test would be more reasonable overall.

226. Therefore, while testing the arbitrariness of bright-line tests, the Courts must be mindful of the inherent limitations in such norms and therefore a microscopic review should be avoided. Instead, as discussed above, the effort should be to determine if the bright-line norm crosses the prescribed limit of ‘manifest arbitrariness’ and is irrational and capricious enough to be struck down. If the norm is backed by a policy reason, the Court must refrain from excessively questioning the specific standard and should exercise judicial review cautiously.

(e) Cut-off dates in Section 6A

227. The Petitioners vehemently challenged the cut-off dates and argue that those dates are arbitrary. As explained above, a bright-line test given by cut-off dates cannot be arbitrary unless it is shown to be unreasonable. This Court has, in a catena of decisions, maintained that the determination of cut-off dates falls within the domain of the Executive and the Court should not interfere with the fixation of the same, unless it appears to be, on the face of it, blatantly discriminatory and arbitrary.[167] To this effect, this Court has even held that the choice of a cut-off date cannot always be dubbed as arbitrary, even if no particular reason is forthcoming for the choice, unless it is demonstrated to be capricious or whimsical.[168] This stance aligns with the understanding of the inherent arbitrariness of bright-line tests, as discussed above in paragraphs 221 to 224.

228. Adverting to the rationale behind the cut-off date of 01.01.1966, it seems there are historical circumstances, and the said date appears to be based on two significant policy reasons:

229. It can thus be concluded that the date of 01.01.1966 was not set arbitrarily but based on proper application of mind.

230. As regards to the reasoning behind the cut-off date of 25.03.1971, the same can be traced to the launch of Operation Searchlight by Pakistan, an event which also marked the onset of the Bangladesh Liberation War. Subsequently, on the very next day, on 26.03.1971, Bangladesh officially declared independence. In response to these developments, the Prime Minister of Bangladesh committed to “by every means, the return of all the refugees who had taken shelter in India since March 25, 1971, and to strive, by every means to safeguard their safety, human dignity and livelihood”.[171]

231. Soon thereafter, the President of Bangladesh promulgated the Bangladesh Citizenship (Temporary Provisions) Order, 1972, on 15.12.1972, with retrospective validity from 26.03.1971. The 1972 Order essentially introduced a framework of constituent citizenship, signifying the initial acquisition of citizenship through the operation of the law. The 1972 Order put forth a discernible distinction and provided citizenship from 25.03.1971, ameliorating the issue of statelessness. Since the war had ended and a new nation was formed on 25.03.1971, the concern regarding providing citizenship based on humanitarian grounds was also assuaged. This appears to be the rationale behind prescribing the date of 25.03.1971 as a cut-off for obtaining citizenship in India.

232. This background indicates that the cut-off dates in Section 6A were not incorporated in a vacuous manner but were a result of considerable deliberation and discussion, and were also backed by a well-considered rationale. Furthermore, keeping in mind the humanitarian considerations that would have gone into the grant of citizenship under Section 6A, we cannot hold that the rationale behind the cut-off dates militates against any constitutional values or the concept of constitutional morality. Instead, Section 6A acknowledged the political and social realities of that period along with the impracticability of reversing the changes that had occurred.

233. Nevertheless, and as noted earlier, the determination of a cut-off date falls within the ambit of the policy makers and the Court would be reluctant to impinge into such fixation, save and except when the assigned date is vitiated with discriminatory and arbitrary considerations. Since the cut-off dates in Section 6A have been found not to offend the aforementioned principles, we are not inclined to interfere in the prescription of such cut-off dates.

234. We may hasten to add here that Section 6A does not operate perpetually and since it does not rescue those immigrants who entered the State of Assam on or after 25.03.1971 and has become redundant qua them, the cut-off dates prescribed therein cannot be said to be tainted with the element of manifest arbitrariness.

(f) Process prescribed under Section 6A

235. The Petitioners also claimed that the process as prescribed under Section 6A is also manifestly arbitrary. Let us now proceed to consider whether the process in built in Section 6A suffers with the vice of manifest arbitrariness, regardless of the number of conditions prescribed therein for claiming citizenship.

236. The conditions for an individual who migrated prior to 01.01.1966 are such that first, the person must be of Indian origin; second, they should have migrated to Assam from the specified territory before 01.01.1966; and third, the person must have been ordinarily resident in Assam since the date of their entry into Assam. Additionally, the persons whose names were included in the electoral rolls for the 1967 elections were also to be conferred deemed citizenship. Section 6A (1) further defines the meaning of the terms contained in Section 6A (2). Section 6A (1) (a) explains ‘Assam’ to mean “territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Act, 1985”. Section 6A (1) (c) defines ‘specified territory’ to mean “territories included in Bangladesh immediately before the commencement of the Citizenship Act, 1985”. Further, the person is deemed to be of ‘Indian origin’, as per Section 6A (1) (d), if “he, or either of his parents or any of his grandparents was born in undivided India”. The meaning of ‘ordinarily resident in Assam’ is also clear and has been discussed in the succeeding paragraphs. Hence, conferring deemed citizenship under Section 6A (2) is not arbitrary but subject to the abovementioned conditions.

237. Further, the migrants who came to Assam on or after 01.01.1966 and before 25.03.1971, will have to be subjected to the following conditions and processes, in addition to the conditions stipulated above:

238. From the above, it is clear that there are legibly delineated conditions and a reasonable process envisaged under Section 6A and the Citizenship Rules, 2009 for migrants who came before 01.01.1966, as well as for those who came on or after 01.01.1966 and before 25.03.1971.

239. Still further, apart from these conditions prescribed within Section 6A itself, various other statutes supplement the issue of migrants in Assam. As will be detailed in the later part of this judgement under Issue xi (Citizenship Act vis- a-vis the IEAA) (infra), these statutes include the Immigrants (Expulsion from Assam) Act, 1950, Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, the Passport (Entry into India) Act, 1920 and the Passport Act, 1967. In these statutes, the Immigrants (Expulsion from Assam) Act, 1950 prescribes the mechanism for the expulsion of immigrants acting against the public interest, and the Foreigners Act, 1946 as well as the Foreigners (Tribunals) Order, 1964 prescribe, inter alia, the mechanism for detection of foreigners, the norms regarding their stay in India before they are granted citizenship, and deportation of illegal immigrants post-1971. Additionally, the Passport (Entry into India) Act, 1920 can also be used to penalize illegal immigrants who entered India without a valid passport. The Passport Act, 1967 can be used for penalizing immigrants travelling out of India without such a passport.

240. The above statutes, for the reasons assigned in the later part, supplement Section 6A and are to be read together to create a harmonious code. The process which runs through all of these legislations does not appear to be capricious or irrational. We cannot therefore approve the Petitioners’ approach of singularly reading Section 6A in isolation, calling it incomplete and terming it manifestly arbitrary for not prescribing all conditions exhaustively.

241. There also appears to be an explicit and legitimate reason behind the process of segregating migrants into different classes, as provided in Section 6A. This is so, since the over-arching objective of Section 6A and the Assam Accord was to achieve a comprehensive and lasting solution to the complex issue of migration in Assam; balancing legal, political, and humanitarian considerations.

242. At this juncture, it is crucial to distinguish between the prescribed process under the provision and its actual implementation. While the legislature had anticipated that the procedure outlined in Section 6A, along with other complementary statutes mentioned in paragraph 239 above, would suffice to address the issue of immigration into Assam, this intention has not been realized. Instead of adequately addressing the immigrants who entered the state before 1971 and timely identifying and deporting those who entered illegally post-1971, the Respondents have not properly implemented this legal regime, leading to a scenario where the latter category of immigrants have been residing in Assam like ordinary citizens. However, this failure is not attributable to Section 6A but rather to its inadequate implementation.

243. Certainly, had the law granted Indian citizenship to undocumented immigrants from another country on an ongoing basis without any intelligible criteria or discernible principle, it could have been susceptible to challenge. However, this is not the case here. As previously analyzed, Section 6A conferred citizenship only upon certain immigrants who met certain specified conditions up to a particular cut-off date. Functioning alongside other statutes, its aim was not only to legitimize the stay of a particular class of immigrants but also to facilitate the detection and deportation of others. Section 6A is clearly not manifestly arbitrary.

(g) Section 6A and Part II of the Constitution

244. The Petitioners further argued that individuals declared as citizens in Part II of the Constitution, along with successive generations, constitute the basic structure of the Constitution, and any statute or statutory provision which interferes with this basic structure, without reasonable care and fairness, should be deemed ‘manifestly arbitrary’ thus rendering Section 6A as liable to be struck down.

245. Since we have already dealt with Part II of the Constitution in the preceding parts, this issue need not be iterated again. It would be sufficient to observe that Section 6A does not go against the notion of citizens under Part II of the Constitution, and the same does not sustain a challenge based on either the ‘basic structure’ theory or ‘manifest arbitrariness’.

(h) ‘Ordinarily resident’ in Section 6A

246. The Petitioners submitted that the expression ‘ordinarily resident’, as contained in Section 6A, is vague as it does not prescribe any yardstick for the number of days required to qualify the same. In this light, the Petitioners cited this Court’s holding in Harakchand Ratanchand Banthia v. Union of India (supra), to contend that when key concepts in a provision are vague, the same ought to be struck down.

247. Vagueness as one of the grounds for striking down a provision under Article 14 can be understood through judicial pronouncements made by this Court. In the Indian Social Action Forum v. Union of India,[172] a 2-judge Bench of this Court dealt with a challenge to certain provisions of the Foreign Contribution (Regulation) Act, 2010 and the Foreign Contribution (Regulation) Rules, 2011. While particularly analyzing the words ‘activity, ideology and programme’ in Section 5 (1) of the above enactment, this Court affirmed the High Court’s view that the abovementioned words do not suffer from the vice of vagueness, and would not invite the wrath of Article 14. This Court observed as follows:

248. The vagueness doctrine was further developed in Nisha Priya Bhatia v. Union of India[173] which observed that a duly enacted law cannot be struck down merely on the grounds of vagueness, unless such vagueness transcends into arbitrariness. With this background, we shall now examine the test for assessing vagueness and whether Section 6A falls foul of the same.

Vagueness in law

249. Vagueness is an inherent feature of language. The same intention can be expressed with a variety of words and expressions, and any given choice of words can relate to multiple different intentions. This problem is particularly exacerbated with vague terms, which often have a wide variety of referents, leading to comparatively greater open-endedness and variability. It is well known that unless the law prescribes a bright-line test, which too has its own set of interpretative problems as discussed before, most standards in law have some degree of open texture, and inevitably harbor some vagueness or multiple meanings.

250. The following example may be considered to understand the import of a word with an open texture. Suppose a statute uses the term ‘tall’ instead of prescribing a particular numerical test for height. Now, the meaning of this term can vary depending on the context and the purpose of the statute. The standard of tallness might differ for a ride at an amusement park and perhaps in discerning the maximum height of vehicles on motorways. Hence, in that sense, the term is vague and open to wide interpretation.

251. Vagueness in law, however, exists on a spectrum, and different scenarios necessitate different degrees of tolerance towards vagueness. Excessive vagueness in law can make the statute overbroad and might make the exercise of discretion a capricious exercise. At the same time, it might sometimes be desirable in the interest of justice to retain some open texture in statutes, to cover future eventualities that the legislature might not have anticipated but intended to address based on the overarching purpose of the law. In that sense, the sliding scale of vagueness in law determines whether the law is just and inclusive, or unjust and capricious.

252. To instantiate, consider Section 5 of the Limitation Act, 1963, which allows the condonation of delay if ‘sufficient cause’ has been delineated by such applicant. In this context, instead of prescribing a mathematically precise formula in regards to what is a sufficient cause, it was considered necessary to use words that provide a broad spectrum and enable a fact-based analysis for each case. Since lawmakers could not possibly envisage all potential situations that may arise in the future at the time of legislating, it was therefore considered prudent to leave it to the facts and circumstances of each individual case.

253. Apart from enabling individualized application of the broad legal directive, a certain degree of vagueness is also necessary to address evolving societal needs. An excellent example of this is reflected in the jurisprudence of Article 21. In this scenario, if the framers of the Constitution had sought to include a laundry list encompassing a myriad of conditions to which Article 21 would be applicable, the ramifications would have been substantial. Any interpretation of the right to privacy would have required a constitutional amendment. Therefore, it may often be beneficial to prescribe a broad standard and allow enough flexibility to address changing needs of the society. Judicial discretion in that sense is often wedded unto the law and cannot be eliminated by invoking excessive formalism.

254. This takes us to the question that if vagueness is inherent in law and may even be desirable on some level, then what ought to be the test and standard for striking down a law on grounds of being vague. In this regard, we will now analyze the test and standard for vagueness, which would make a statute or legislation liable to be struck down on that basis.

Test for void-for-vagueness

255. Vagueness needs to be viewed from the perspective of: (a) the authorities applying the impugned law; and (b) the persons being regulated by the impugned law, as was held in Shreya Singhal v Union of India,[174] where this Court dealt with the constitutionality of Section 66A of the Information Technology Act, 2000. This Court, after referring to terms in Section 66A, such as ‘grossly offensive’ or ‘menacing’, observed the same to be very vague and held that neither the prospective offender under Section 66A nor the authorities who are to apply Section 66A would have any manageable standard to charge a person for an offence under Section 66A. It was observed as follows:

256. With respect to the first limb, i.e., the perspective of the person applying the law, the standards are made clear in State of Madhya Pradesh v. Baldeo Prasad,[175] where while dealing with a constitutional challenge to the validity of the Central Provinces and Berar Goondas Act, 1946, it was observed that the definition of the word ‘goonda’ does not give necessary assistance to the District Magistrate, in deciding whether a particular citizen falls under the category of ‘goonda’ or not. Further, in Maneka Gandhi (supra), a Constitution Bench of this Court, while trying to construe the import of the words ‘in the interests of general public’ in Section 10(3)(c) of the Passport Act, 1967, observed that the law is well settled to the effect that “when a statute vests unguided and unrestricted power in any authority to affect the rights of a person without laying down any policy or principle which is to guide the authority in exercise of this power, it would be affected by the vice of discrimination…” After noting that the impugned words in the provision are taken ipsissima verba from Article 19(5) of the Constitution, it was held as follows:

257. This view has also been endorsed in Harakchand Ratanchand Banthia (supra), where a Constitution Bench of this Court dealt with the constitutional validity of the Gold Control Act, 1968. The challenge made by the Petitioners therein, against Section 27 of the Act, mainly contended that the conditions imposed through the section for the grant or renewal of licenses were uncertain, vague and unintelligible, thus conferring broad and unfettered power upon the statutory authorities in the matter of grant or renewal of license.

258. Hence, to satisfy the first facet regarding the person applying the law, the impugned law must be clear enough to provide necessary guidelines regarding application, and must not confer unfettered discretion.

259. When evaluating the issue from the second perspective, which focuses on the individuals affected by the law, it is essential to adopt an objective standard reflecting the viewpoint of a person of average intelligence within the affected group. Thus, it follows that a person of ordinary intelligence amongst such a class of persons on which the impugned law operates should be able to understand the scope or sphere of application of the law. This standard was observed by a Constitution Bench of this Court in Kartar Singh v. State of Punjab,[176] where it dealt with the constitutionality of specific provisions in the Terrorist and Disruptive Activities (Prevention) Act, 1987, analyzed the term ‘abet’ and gave it a reasonable construction to avoid the vice of vagueness. It was observed that vague laws offend important values and reinforce the need for laws to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited.

260. Nisha Priya Bhatia (supra), was a case where a challenge to Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 was laid. This Court observed that such a challenge on the ground of vagueness could only be sustained if the Rule does not provide a person of ordinary intelligence with a reasonable opportunity to know the scope of the sphere in which the Rule would operate. This position was further developed, in line with the perspective of the persons upon which the provision operates, by observing that this standard is to be applied from the point of view of a member working in the organization as an intelligence officer, more particularly, a Class I intelligence officer.

261. Furthermore, this standard was also seen to have been applied in the Federation of Obstetrics & Gynaecological Societies of India (FOGSI) vs. Union of India,[177] wherein the constitutional validity of Sections 23 (1) and 23 (2) of the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 was being challenged. While holding against such a challenge, it was observed by this Court that the provisions are not vague and that a responsible doctor is expected to know what they are undertaking and what their responsibilities are. In this light, the standard of a ‘person of ordinary intelligence’ was also seen to be employed and the Court went on to observe that a person of ordinary intelligence can comprehend the provisions of the Act and they can have fair notice of what is prohibited and what omission they should make. A nuanced understanding of the term ‘ordinary intelligence’ can be gained from this Court’s ruling in Seksaria Cotton Mills Ltd. v. State of Bombay,[178] where, albeit in a different context, while interpreting the meaning of the word ‘possession’, it was observed as follows:

262. To sum up this facet, the impugned law is to be tested from the perspective of a person of ‘ordinary intelligence’ from the class to which the law applies. We have also delineated cases where the impugned law operates on a specialized class of persons, such as a Class-I intelligence officer of the Research and Analysis Wing, as seen in Nisha Priya Bhatia (supra), and medical practitioners or doctors as seen in FOGSI (supra). In any case, even if the persons being regulated are not a specialized class of persons, the Court would adopt the standard of an ordinary man of average intelligence, who, though not well versed in law, would have no difficulty in understanding the plain meaning of the words contained in the impugned law, when confronted with it.

263. Given the above, it is observed that the test for striking down a law on the grounds of vagueness can be viewed through two perspectives, both of which are to be taken into account, and the standards for the same have to be satisfied to sustain a challenge on the grounds of a law or provision being void for vagueness. Thus, a statute or its provision can be struck down for vagueness if:

The extent of review for the test of ‘void for vagueness’

264. It is also well settled that ordinarily, courts should endeavour to draw a demarcating line and infer some reasonable meaning from an impugned provision, rather than hastening to intervene and striking down the entire provision on the grounds of vagueness. This view was also echoed in K.A. Abbas v. Union of India,[179] where a Constitution Bench of this Court dealt with the constitutionality of Section 5B of the Cinematograph Act, 1952 and laid down the thresholds for applicability of the vagueness doctrine. It was held that if a law is vague, it should be accorded the interpretation which best suits the legislature’s intention and advances the purpose of the legislation. If that was not possible, and the legislation was marred with uncertainty which prima facie appeared to take away a guaranteed freedom, it could be struck down. However, this Court also cautioned that such recourse be resorted to sparingly, and the Court should instead endeavor to draw the line of demarcation where possible.

265. Similarly, another important principle governing this doctrine is that vagueness ought to be inversely proportional to the gravity of the consequences involved-i.e., the more penal the consequences, the less vague the legislation should be. Vagueness, especially in criminal laws, ought to be used to protect the individual facing penalty.[180]

Whether Section 6A is void for being vague

266. Now turning to the issue at hand, the Petitioners’ apprehension concerns the meaning of the phrase ‘ordinarily resident in Assam’, as provided in Section 6A, and more particularly in clauses (2) and (3) thereof.

267. At the very threshold, we must note that the consequences of Section 6A are relevant for our determination of vagueness, as discussed in paragraph 263 of this judgement. Section 6A confers citizenship upon a sub-class of immigrants into Assam, and can therefore not be classified as criminal or penal. Instead, by legitimizing the stay of certain immigrants in India, Section 6A is more akin to a beneficial legislation. Given this, we are inclined to extend greater laxity when testing the term ‘ordinarily resident’ for vagueness.

268. First, while examining the expression ‘ordinarily resident’ from the viewpoint of the authority interpreting and applying the law, it could be observed that there is little vagueness in this term, given that this Court has already dealt with the same and extracted its import, particularly within the context of its usage in Section 6A. Khudiram Chakma (supra), dealt with the case of the Chakmas, who were a group of people who had migrated to Assam in 1964 and had shifted to Arunachal Pradesh thereafter, and were claiming citizenship under Section 6A. It was held that ‘ordinarily resident’ within Section 6A meant ” ordinarily resident in Assam from the date of entry till the incorporation of Section 6-A, namely, 07.12.1985′. To further understand the nuanced import of ‘ordinarily resident’, this Court, after placing reliance on Smt. Shanno Devi vs. Mangal Sain[181] observed the same to mean that “it is not necessary that for every day of this period he should have resided in India. In the absence of the definition of the words ‘ordinarily resident’ in the Constitution it is reasonable to take the words to mean ‘resident during this period without any serious break.'” In Smt. Shanno Devi (supra), this Court was interpreting the term ‘ordinarily resident’ as appearing in Article 6 of the Constitution, which applies in the case of citizenship for persons who migrated to India from Pakistan. The term ‘ordinarily resident’ under Section 6A can thus hardly be said to be undefined or vague.

269. In addition, it must also be noted that the phrase ‘ordinarily resident’ is used in various Indian legislations, in contexts not too dissimilar from Section 6A. Besides the Indian Constitution, it finds mention in Sections 5 and 10 of the Citizenship Act, 1955, in the Representation of the People Act, 1950, in the Life Insurance Corporation Act, 1956, the Income Tax Act, 1961 and the Patents Act, 1970, among other statutes. Given such frequent usage, it would be difficult to term ‘ordinarily resident’ as vague. This Court has held the same in Premium Granites v. State of T.N.,[182] where it was noted that the term ‘public interest’ had acquired the character of being a ‘definitive concept’ in Indian jurisprudence, owing to its widespread usage in the Constitution and other enactments, apart from its interpretation in several judicial pronouncements.

270. Hence, the words ‘ordinarily resident in Assam’, as contained in Section 6A (2) and (3), cannot be seen to suffer from the vice of vagueness, keeping in view the fact that the judicial officers constitute the Foreigners Tribunals; their orders are subject to review by superior courts; and there are civil administration officers aiding the Tribunals, all of whom are well conversant with the nuances of the procedure contemplated under Section 6A.

271. When proceeding to apply the second limb of the test of vagueness, i.e., from the perspective of persons regulated by the impugned law, the relevant class of persons for consideration would be the immigrants who came to Assam from erstwhile East Pakistan before the cut-off date of 25.03.1971.

272. Such an analysis would indicate that an immigrant from East Pakistan of ordinary intelligence, who has come before 25.03.1971 to Assam and who is not versed in law, when confronted with the plain meaning of the words ‘ordinarily resident since the date of his entry in Assam’, would readily be able to understand the scope or sphere or application of the words. The emphasis here is whether a person of ordinary intelligence can understand the meaning simpliciter and gain a basic idea of the scope or sphere of application of the same within the context of the impugned law, and not a nuanced or exact legal understanding. On application of such a threshold with respect to the persons being regulated, it would be difficult to hold that such persons would be unable to understand the simpliciter contour and indicative meaning of the phrase ‘ordinarily resident’, and would find it so vague as to be unable to the meaning of the words. This observation is further bolstered by the fact that none from the affected class of immigrants has contended before us that they found the term ‘ordinarily resident’ to be vague or evasive.

273. We thus hold that Section 6A does not suffer from manifest arbitrariness because: (a) there is application of mind behind the incorporation of the cut-off dates; (b) the process under Section 6A is not arbitrary; (c) Section 6A does not violate Part II; and (d) the term ‘ordinary residence’ is not vague enough to be void.

vii. Article 29 and Section 6A

274. The Petitioners have attempted to claim endogamous community rights through the route of Article 29 of the Constitution. They contended that there has been a drastic demographic change in the State of Assam due to the influx of illegal migrants from erstwhile East Pakistan, which has resulted in Assamese culture being lost. They further argued that the right under Article 29(1) is absolute and provides a group the freedom to shape their cultural identity. This, they argue, gets jeopardized when there is a forcible imposition of a foreign culture, as is happening through the unchecked migration of Bangladeshi immigrants into Assam.

275. Countering the Petitioners’ contentions, the Respondents submitted that demographic changes could not be a constitutionally valid metric for measuring cultural change. Changes to religious demographics could be traced to several different factors, including state reorganisation and internal migration. Further, they contended that the objective of Article 29(1) is to establish a multicultural society, and not an endogamous one. They argued that accepting the Petitioners’ argument would lead to cultural exclusivity, which they felt was not constitutionally permissible. Further, they also urged that a constitutional culture exists in India, which ought not to be endangered on the basis of demographic change.

(a) Background of Article 29

276. Article 29(1) of the Constitution, which is included in Part III, confers upon any section of citizens residing in the territory of India, the right to conserve its language, script or culture. The text of the provision reads as follows:

277. Incorporated into the constitutional framework with a distinctive approach to bestowing rights upon a segment of the populace, this provision underwent extensive debate and scrutiny within the halls of the Constituent Assembly. The deliberations surrounding this provision serve as an invaluable resource for comprehensively understanding the significance of Article 29, affording us insight into the overarching intent of its framers during the formulation of this particular provision.

278. Article 29, which was then draft Article 23 prior to its inclusion into the Constitution, was the subject matter of intense debate, with respect to both the terms used in the provision itself and the import of the rights it conferred. Although draft Article 23 initially used the term ‘minority’, it was substituted for the words ‘section of citizens’. This change was made keeping in mind the diversity of India and with the aim of ensuring that children received education in the language of their choice, while simultaneously making sure that they continued to learn the language of whichever State they may be a part of.[183] Thereafter, the term ‘section of citizens’ got crystallised to the extent that attempts to replace it with the term ‘minority’ were negatived by the Assembly.[184] With that, Article 29, as we are familiar with today, found its place as a part of the Constitution.

279. Provisions akin to Article 29(1), which establish a right to preserve culture, can be identified in numerous Constitutions across various jurisdictions. For instance, Article 20(2) of the Constitution of Albania grants the right to ‘preserve and develop’ ethnic, cultural, and linguistic identity. A similar right is articulated in Article 56 of the Armenian Constitution, Article 11 of the Georgian Constitution, Article 59 of the Kosovan Constitution, Article 114 of the Latvian Constitution, and Article 35(1) of the Polish Constitution. While these provisions share the common objective of cultural preservation, they vary slightly from Article 29(1) by incorporating the term ‘develop’.

280. The Petitioners in the present case allege a violation of their right specifically under Article 29(1). This article aims to protect and guarantee the right conferred upon every citizen of India to conserve their language, script or culture. When read in conjunction with Article 30, the overarching objective of Article 29 is to allow minority communities to establish educational institutions to preserve and fortify their cultural, linguistic, or scriptural heritage. However, given the specific allegations presented by the Petitioners, our scrutiny will be confined exclusively to assessing a potential violation of Article 29(1).

(b) Standing under Article 29(1)

281. Article 29(1) effectively has two key aspects that need to be determined: first, whether there is a ‘section of citizens’ seeking to conserve their language, script or culture and second, that such language, script or culture in question is ‘distinct’.

282. Article 29(1) begins with the term ‘any section of citizens’. Though the term ‘minority’ is used in the marginal heading, the scope of Article 29(1) is not restricted to minorities as understood in the technical sense.[185] It instead extends to any section of citizens residing in the territory of India. This was a conscious choice on the part of the framers of our Constitution,[186] as is apparent from the following words of Dr. B.R. Ambedkar:

283. Thus, Article 29(1), while conferring the right to conserve, does not restrict itself only to the notion of a minority as understood in the technical sense but includes any group that may seek to conserve a distinct language, script or culture.

284. This interpretation of Article 29(1) has also been established by a 9-judge bench of this Court in Ahmedabad St. Xavier’s College Society v. State of Gujarat,[187] wherein it held that:

285. The Petitioners herein have sought to protect their ‘culture’. While there is no single definition of the term, academicians and scholars have defined culture as “that complex whole which includes knowledge, belief, arts, morals, law, custom and any other capabilities and habits acquired by a man as a member of society”[188] or as “the handiwork of man and as the medium through which he achieves his ends.”[189] Hence, although a precise definition of the term ‘culture’ cannot explicitly be delineated, its comprehensive connotation is expansive, encompassing diverse elements inherent to a specific group or community.

286. Considering these aspects, the next point which arises for consideration is whether the right under Article 29(1) can be invoked by the entire section of citizens aiming to preserve their culture or language or if it can be invoked by a few individuals on behalf of the larger section of citizens. In this context, it becomes essential to examine previous decisions of this Court where a violation of Article 29(1) has been put forth to ascertain who the invoking party was.

287. In State of Karnataka v. Associated Management of English Medium Primary and Secondary Schools,[190] the imposition of a particular language by the State in primary schools was under challenge. Rights under Article 29(1) were asserted by an association representing private schools. Similarly, in State of Bombay v. Bombay Education Society and others,[191] the right of the Anglo-Indian community to conserve their culture and language under Article 29(1) was upheld. The parties invoking the right were the Bombay Society and its two directors, which sought to ensure value-based education for the underprivileged. Thus, notwithstanding the language of Article 29(1), it is not necessary that the right must be invoked by the entirety of the section of citizens belonging to a particular community, or that such community must collectively seek redressal.

288. In the instant case, the Petitioners include various Assamese student organisations like the Assam Sanmilita Mahasangha and All Assam Ahom Sabha; their invocation of Article 29(1) is, therefore, maintainable. Furthermore, it is not in dispute before us that there exists a distinct Assamese culture. Indeed, Assam proudly serves as a testament to our nation’s rich culture and diversity, with various groups and sub-groups co-existing harmoniously, including the Koch-Rajbangsi, Bodo, Sonowal Kacharis, Dimasas, and more.[192] This cohabitation reflects a cooperative and peaceful integration of diverse cultures within the region. Furthermore, adding to the cultural mosaic, Assam also boasts of linguistic diversity, with over 13 million residents conversing in Assamese and Bengali while also embracing local languages like Karbi, Mishing, Rabha, Tiwa, Dimaca, and more.[193] Indeed, the crux of the matter at hand does not revolve around whether Article 29(1) applies to the Petitioners. Instead, the focal point is whether Section 6A by its operation has curtailed the Petitioners’ rights under Article 29 to conserve their distinct culture.

(c) Substance of Article 29(1)

289. As discussed previously, Article 29(1) aims to ‘conserve’ the language, culture or script of a section of citizens. Instead of obligating the State to make any special provisions for the development of such language, script, or culture, the ambit of the term ‘conserve’ is to prohibit state intervention in these aspects.[194] This intent to proscribe interference, though not apparent, has been explicitly emphasized in the discussions of the Constituent Assembly and has consistently been underscored by this Court in various decisions.

290. A dialogue between K. Santhanam and Hasrat Mohani during the Assembly debates notably encapsulates this dimension of nonintervention. It suggests that the objective of Article 29(1) was envisioned to forestall any potential harm to cultures by fascist regimes, should such a scenario arise.[195] K. Santhanam, in particular, had stated in this regard as follows:

291. Likewise, Dr. B.R. Ambedkar gave his perspective on the matter, echoing the sentiment that the State should refrain from intervening and imposing any culture, whether local or otherwise, upon a community. Dr. B.R. Ambedkar further underscored that the provision does not levy any burden or obligation upon the State.[196] In this regard, he articulated the following:

292. The nature of the protection afforded by Article 29 also came up before this Court in D.A.V. College v. State of Punjab,[197] which analysed a counterfactual and held that had the State intervened in compelling affiliated colleges, including minority institutions, to provide instruction in the Punjabi language, it would have impeded the right to conserve their language, script, and culture. It held that such an intervention would have amounted to stifling the language and script of other sections of citizens and encroaching on their right to conserve their own culture and language.

293. At this juncture, it is imperative to recognize that Article 29 does not advocate for absolute governmental abstention in matters involving culture, language or script. In fact, to some extent, government intervention is unavoidable as regulation is essential for the maintenance of public order and for upholding constitutionalism. State actions and regulations with an insignificant or merely incidental effect on a community’s cultural rights might also not be caught in the crosshairs of Article 29(1). This is also seconded by various decisions of this Court, where some such regulatory interventions by the State were held to not constitute a curtailment of Article 29(1) rights.[198] In addition, although not germane to the controversy at hand, we must add a word of caution that not all cultural practices of a section of citizens-for example, those blatantly running against the spirit and grain of our Constitution, like casteism and gender discrimination-would be protected by Article 29(1).

294. A violation of Article 29, therefore hinges on the ‘nature’ and ‘degree’ of State intervention and not merely on the simpliciter fact of intervention. In other words, the violation of Article 29 is necessarily a question of law which requires adjudication of the circumstances, intention and effect of the state intervention on the aggrieved section of citizens, as well as the society at large.

295. To sum up our discussion, the rights conferred by Article 29(1) require that the State not take any steps to erode a community’s culture, language or script; and concomitantly accords to such section of citizens the freedom and independence to preserve and conserve their culture, language and script, by themselves. At the same time, the right under Article 29(1) does not necessitate the Government to enact specific provisions for its enforcement and also does not altogether restrict the State from enacting regulations.

(d) Section 6A vis-a-vis Article 29

296. Having scrutinized the fundamental basis on which the applicability of Section 6A needs to be examined, it is imperative at this juncture to systematically address each of the Petitioners’ contentions.

297. The Petitioners contended that the presence of immigrants from Bangladesh has led to an erosion of their culture. However, it is not their contention, nor is it our opinion, that the scheme of Section 6A was intended to take away these cultural rights. Section 6A does not address culture at all; it focuses solely on establishing the criteria that migrants from the East Pakistan region must fulfil within specified dates to obtain citizenship upon entering Assam. The impact on Assamese culture, if any, would be only incidental and not direct or intentional.

298. In addition, the onus is on the Petitioners to not only show effect, but also demonstrate causation. The Petitioners need to establish both, that there has been an adverse impact on Assamese culture over time and that such impact is attributable to the legitimisation of the citizenship status of pre-1971 immigrants. The Petitioners have been unable to establish the latter. Indeed, the respondents have proffered various other plausible explanations, like internal migration, state reorganization and unchecked immigration post-1971 which fall outside the umbrella of Section 6A. Additionally, Section 6A does not compel pre-1971 immigrants to keep residing within the territory of Assam once they have obtained Indian citizenship, given that they would enjoy Article 19(1)(e) rights like any other citizen of India.

299. To substantiate the former limb on effect, the Petitioners have cited data showing changes in Assam’s religious and linguistic demographics. These metrics by themselves are not ‘culture’ within the meaning of Article 29(1). Although significant changes to the demographics of a region can affect the interests of its original inhabitants, the ‘culture’ of a region by itself is a far more complex and dynamic phenomenon-involving an interplay of various competing forces and interconnected elements.

300. Though we are not oblivious to the Petitioners’ demographic anxiety, we must be cautious of the impact our findings would have on the greater national landscape. Accepting the Petitioners’ assertion that a mere change in demographics is sufficiently actionable evidence of erosion of rights under Article 29(1) would have far reaching consequences. We say so, for the reason that it would undermine the idea of fraternity envisaged by our Constitutional drafters, and bring to life their fears by threatening the cohesion of our diverse nation. It would open the floodgates for similar challenges by residents of other states who might seek to undermine Article 19(1)(e) rights and inter-state migration under the guise of protecting their indigenous culture under Article 29(1). The Constitution of India, and indeed this Court as well, does not envision India as a union of endogamous-homogenous territories. The cascading ramifications of accepting the Petitioners’ stand on federalism and national harmony would be significant, deleterious and not improbable.

301. The Petitioners further asserted that the influx of migrants from East Pakistan has led to a substantial acquisition of land and scarce resources by these immigrants, consequently resulting in the marginalization of the original Assamese inhabitants within their own territory. It was their specific contention that such acquisition not only poses a threat to Assamese people but specifically to the culture and heritage of endangered tribes in Assam.

302. Though the material on record does not substantiate such claim, regardless thereto, such a plea has no legally sustainable foundation. All citizens have the right to own property and, unless restricted by statute or other law, they are free to enter into private land transactions. Once such a transaction has taken place between two private individuals, this Court cannot set the clock back in the teeth of Article 300A of the Constitution merely because when seen collectively it results in a pattern of land ownership which is considered undesirable by some other groups.

Simultaneously, individual allegations of involuntary land transactions are best not dealt with us, considering that we are examining a question of constitutional interpretation, while sitting in writ jurisdiction.

303. At this stage, and given the restricted ambit of the present proceedings, this Court cannot embark on a complex or microscopic fact-finding exercise to determine whether factually there has been any cultural erosion as alleged by the Petitioners.

304. We thus sum up our analysis of the Petitioners’ claim under Article 29, holding that though they have the standing to make such a claim but on the facts of the present case, they have failed to show either an actionable impact on Assamese culture, or trace the cause of it to Section 6A. On the contrary, Section 6A when read along with the larger statutory regime surrounding citizenship and immigration, mandates timely detection and deportation of illegal immigrants, a large portion of whom entered Assam post-1971. Seen from this perspective, it is the non-implementation of the statutory regime which is the cause of the Petitioners’ concerns; their attack on the constitutionality of Section 6A is misplaced.

viii. Article 21 and Section 6A

305. The Petitioners contended that Section 6A is violative of Article 21 because it infringes upon the rights of the ‘indigenous’ Assamese community. They argued that immigration has led to the marginalization and disruption of their socio-economic aspirations. Further, relying on Article 1 of ICCPR, they urged that their right of self-governance is being violated by Section 6A. Lastly, the Petitioners claimed that the inclusion of an unidentified migrant population burdens the country’s natural resources, particularly impacting the citizens residing in a State and hindering sustainable development, along with depriving the Assamese community from enjoying the full spectrum of socio-economic rights.

306. Per contra, the Respondents argued that instead of contravening Article 21, Section 6A enforces the same because foreigners’ rights are also protected thereunder. Additionally, they contend that Section 6A, in fact, gives quietus to a long-standing dispute. According to the Respondents, the provision does not violate Article 21 as Section 6A is to be construed as a “procedure established by law”.

307. The issue that arises for consideration therefore is whether Section 6A is violative of Article 21. Though Article 21 needs no introduction, it provides that no person can be deprived of life and personal liberty except according to procedure established by law.

(a) ‘Marginalization’ of a community

308. In this regard, the Petitioners have put forth an argument akin to their claim under Article 29 and have argued that Section 6A violates Article 21 as it affects the way of life of original inhabitants.

309. Although the rights conferred by Article 21 differ from those under Article 29 of the Constitution; the burden to be discharged by the Petitioners to support their claims would remain broadly similar. It would be otiose for us to delineate the legal tests and the substance of the rights provided by Article 21 in the context of the Petitioners’ cultural claims, given that the Petitioners have failed to provide material beyond mere averments.

310. As elaborated in paragraph 298 of this judgement, the Petitioners need to establish both a deleterious effect of Section 6A on their indigenous communities as well as trace the cause of such effect to Section 6A. In light of our conclusions in the preceding segment re: Article 29, namely, that the Petitioners have been not been able to show a constitutionally actionable impact on their communities, and if at all there is any such impact it can be attributed to several factors beyond Section 6A. The Petitioners’ challenge on the ground of violation of Article 21, thus deserves to be closed at the threshold itself.

(b) Right of self-governance

311. In addition to asserting that their community is being marginalized, the Petitioners have also laid claim to the right of self-governance. In support of this assertion, they have referenced Article 1 of the ICCPR, which affirms that all “peoples” possess the right to selfgovernance. The expression ‘peoples’ has a wide connotation and it is nearly impossible to outline its exact constituents. It is however, a settled proposition that Article 1 referred to above, is a collective right, which cannot be claimed by an individual.

312. In any case, India has declared its reservation regarding this Article and has stated that:[199]

313. Further, we are of the considered opinion that the perceived right under Article 1 of the ICCPR is not enforceable through writ jurisdiction. Even otherwise, it cannot be invoked by the Petitioners, more so in light of India’s explicit reservation against its application in India, and given that it generally is applicable only to people under foreign domination.

314. That apart, it is difficult to countenance the assertion that immigration has impacted the self-governance of the original inhabitants of Assam. The Petitioners have not demonstrated how Section 6A affects their right to govern themselves democratically. In India, the right of self-governance has to be understood within the contours of the Constitution and the laws framed under it, which provides self-governance at the level of political units such as Panchayats and District Councils, in addition to the nationallevel Parliament and various state-level Legislatures.[200] In addition, as discussed in Issue ix (Article 326 and Section 6a) (infra), India allows the opportunity for self-governance by providing the right to vote on the basis of adult franchise.

315. We must also note that the Petitioners’ have not claimed that any of these Constitutional or other electoral legislations have been violated. We are therefore not inclined to entertain the Petitioners’ claim on self-governance, which in a way amounts to a prayer for creation and recognition of an extra-Constitutional right. In any case, our analysis in this context would border on adjudicating the appropriateness and sufficiency of the electoral framework created by the Constitution.

316. It is clarified that, the arguments surrounding dilution of the voting ability of the indigenous Assamese have been addressed in the next section. Without repeating our observations on demographic anxiety in paragraph 300 of this judgement, it would suffice to state that we are unable to agree with the Petitioners’ argument that conferring citizenship to a subset of immigrants from East Pakistan with a different language or culture would amount to undermining the self-governance rights of the Assamese.

(c) Right of sustainable development

317. The Petitioners have contended that Article 21 has been infringed by Section 6A, as it permits immigrants to utilize natural resources, thereby contravening the public trust doctrine. They argued that had the immigrants been resettled in other States, the strain on natural resources in Assam would have been mitigated, and the government could have managed resources more effectively. The Petitioners have also contended that allowing increased access to Assam’s natural resources contradicts the principles of sustainable development.

318. In this vein, the doctrine of public trust provides that the State holds the natural resources as the trustee of the general public, and as a consequence, bears a duty to protect them.[201] This doctrine mandates that resources should be used in a manner that does not efface other people’s and subsequent generations’ right to use such resources in the long term. A 5-judge bench of this Court has held that the task of adjudicating whether public trust has been violated or not, would not entail a comparative analysis of alternative deployments of such natural resources. The Court ought to only assess whether the deployment under challenge as implemented by the government, is fair or not.[202]

319. We therefore need to examine whether the Parliamentary enactment contravenes the constitutional principles for having expropriated natural resources in an unfair, wasteful or exploitative manner, such that larger collective or community rights have been undermined.

320. In our considered opinion, the mere fact that a sub-class of immigrants whose status has been legitimised by Section 6A also has access to these resources does not automatically imply a disruption of ecological balance or a violation of the original inhabitants’ rights to resource usage. This argument conflates the idea of “unfair usage” with “more usage”-a premise that cannot be accepted.

321. Sustainable development and population growth can coexist harmoniously and need not be mutually exclusive. A nation can accommodate immigrants and refugees, while simultaneously prioritizing sustainable development and equitable allocation of resources. By implementing policies that encourage environmental conservation, efficient resource management, and social integration, a country can effectively address the challenges posed by demographic changes while safeguarding its long-term prosperity. The logic underlying the Petitioners’ argument, if allowed, can tomorrow be extended to seek controls on even domestic inter-state movement. The Petitioners’ challenge on the basis of sustainable development under Article 21 therefore, must be rejected.

ix. Article 326 and Section 6A

322. The Petitioners contended that the application of Section 6A on the State of Assam violates the Assamese people’s right to vote under Article 326 of the Constitution. It was asserted that the right to vote and the right to be registered on the electoral rolls is specific only to the citizens of India and not to illegal immigrants. They further contended that the process of Section 6A conferring political rights upon millions of Bangladeshi immigrants has resulted in the marginalisation of the political rights of the people of Assam, which, in turn, is not in the interest of the security and integrity of the State. They asserted that continuance of these immigrants on Indian soil poses severe threat to the identity of the indigenous people of Assam, as well as the security of the nation.

323. The Respondents argued that the contentions advanced by the Petitioners in the present case amount to a reverse reading of Article 326 of the Constitution. They submitted that considering the persons falling under Section 6A would be valid citizens, the right under Article 326 would therefore naturally follow to such ‘citizens’. Additionally, they also urged that Section 6A is not concerned with the preparation of the electoral roll and only deals with the grant of citizenship to the categories of persons covered thereunder.

324. Thus, in examining the purported violation of the Petitioners’ rights, it is imperative to first delve into the historical progression of adult suffrage in India, given that Article 326 explicitly addresses the conferment of voting rights upon Indian citizens.

(a) Background and evolution of adult suffrage

325. In response to the clamour for adult suffrage, the issue of franchise in India was heavily deliberated upon in the Round Table Conference in 1931, and the Indian Franchise Committee was set up. However, the Committee’s report, presented with an air of caution, vehemently discouraged the adoption of universal adult franchise in India, citing the widespread illiteracy rates. Instead, the Committee’s proposal for franchise resulted in the enactment of the Government of India Act, 1935. The Act put forth several parameters regarding voter eligibility, including the extent of property owned, amount of taxes paid, residence, etc. Yet, despite these efforts, only a mere one-fifth of the adult population found themselves deemed worthy of the electoral badge of honour at that pivotal juncture in history.[203]

326. In any case, the 1935 Act was short-lived, with the onset of Indian independence and the subsequent establishment of the Constituent Assembly. The Constituent Assembly itself was constituted as a formal constitution-making body under the Cabinet Mission Plan, 1946. The provincial assemblies elected the

389 members that comprised the Constituent Assembly based on a single transferable vote system having proportional representation. These members were, thus, indirectly elected representatives tasked with the mammoth project of drafting a Constitution for India. The Constituent Assembly sat for a period of two years, eleven months and seventeen days, between 06.12.1946 and 24.01.1950, to write the Constitution of India.

327. On the issue of adult franchise, the notion was initially met with opposition by the likes of M. Thirumala Rao and Brajeshwara Prasad, who considered universal adult franchise to be a violation of the tenets of democracy on account of the largely illiterate populace of the country.[204] Other members, such as Hriday Nath Kunzru, believed that while franchise being bestowed based on parameters such as property was antithetical to the idea of a democracy, universal adult suffrage at such a nascent stage would prove troublesome. Instead, he recommended enfranchising approximately half the population and then extending it to the remaining population in a phased manner over a period of fifteen years.[205]

328. However, during the final days of the Assembly, several Assembly members began to express their views in favour of universal adult franchise, arguing that the inclusion of adult franchise into the Constitution would contribute towards the cause of nation-building and secure the betterment of the common man. Hence, universal adult franchise was incorporated into the Indian Constitution, as enshrined in Article 326. The inaugural general elections of Independent India were conducted between 25.10.1951 and 21.02.1952. This monumental exercise witnessed the participation of a sixth of the world’s population, rendering it the largest election globally at that juncture.

329. The historic inclusion of universal adult suffrage as a constitutional value in India was noteworthy for accommodating an unprecedented number of voters, and its revolutionary nature. What is now considered a matter of fact was, at that time, perceived as a daring and potentially risky endeavour. The embrace of universal adult suffrage in India, devoid of property, taxation, or literacy qualifications, was deemed a ‘bold experiment’, particularly given the country’s vast geographical expanse and population. This stride was even monumental, especially when juxtaposed with the trajectory of more economically advanced nations, such as the United States of America, which achieved universal adult franchise only in 1965.[206] India’s adoption of adult franchise also positioned it in close proximity to the timelines of countries like France and Britain, where universal adult suffrage commenced in 1945 and 1928, respectively.

330. This historical background, coupled with the Constituent Assembly deliberations, unmistakably signify that the incorporation of universal adult suffrage through Article 326 was undertaken with the avowed purpose of granting voting rights and empowerment to every adult citizen of India, devoid of any unjustifiable limitations or constraints. Thus, the drafters of the Constitution crystallized their vision of ‘one man, one value, one vote’ by enshrining it in Article 326.[207]

(b) Aim of Article 326

331. The text of Article 326 provides that “the elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage.” Article 326 further lays down the qualifications for being a voter, subject to statutory limitations concerning disqualification, corrupt practices, detention, etc. As established previously, these Articles were encapsulated within the Constitution to provide the right to vote to large swathes of people, irrespective of their literacy or ownership of property. Nevertheless, it is imperative to delineate the nature of the right to vote. This analysis will serve as a crucial foundation in conclusively determining the validity of the contentions presented by the Petitioners regarding the alleged violation and adverse impact on their right to vote stemming from the influx of migrants from Bangladesh.

332. The right to vote has been the subject of considerable deliberation and judicial interpretation. This Court has evolved the notion of the right to vote, per constitutional and statutory principles, to empower voters further. One of the very first cases to discuss the issue pertaining to the nature of the right to vote was N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, where this Court categorically held that “the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to limitation imposed by it.”[208] This view was upheld in the case of Jyoti Basu v. Debi Ghosal, [209] holding that the right to elect is neither a fundamental nor a common law right but a statutory right. This was, thereafter, the consistent view that was laid down in a plethora of decisions.[210]

333. There were diverging views expressed in the case of the People’s Union for Civil Liberties v. Union of India, wherein this Court held that though the right to vote may not be construed as a fundamental right, it is nonetheless a constitutional right.[211] The debate on this issue was finally laid to rest by this Court in Rajbala v. State of Haryana[212] in the course of adjudicating the constitutionality of the Haryana Panchayati Raj (Amendment) Act, 1935. The Court therein held that the right to vote under Article 326 was not merely a statutory right but was a constitutional right that conferred upon citizens the right to vote, subject to certain limitations. It may thus be seen that with the aid of judicial construction in the context of the nature of the right to vote, it has been upgraded from being a mere statutory right to a constitutional right. More recently, this view was once again affirmed by this Court in Anoop Baranwal v. Union of India.[213]

334. It is also crucial to take into consideration that Articles 325 and 326 contained in Part XV of the Constitution, deal with rights and duties in the context of elections. These provisions broadly encompass the powers and duties conferred upon various bodies, with the objective of ensuring that elections are conducted in a free and fair manner. For instance, Article 324 vests the Election Commission with powers to supervise elections, thereby ensuring free and fair elections. Similarly, Article 329 limits the Supreme Court’s jurisdiction in election matters. Any challenge to an election can be made after the election has been completed through an election petition under the Representation of People Act, 1951.[214] These provisions have been included with the intent of strengthening the political rights of the citizens of the country. It is trite law that provisions which pertain to the same subject matter must be read as a whole and in their entirety, each throwing light and illuminating the meaning of the other.

335. The objective of these provisions, and more specifically Article 326, is, therefore, to enfranchise people as opposed to disenfranchising them. As illuminated by the historical trajectory of adult suffrage in India and the meticulous deliberations of the framers in instating Article 326, the evident purpose of its inclusion was to bestow upon every individual citizen the right to exercise their vote and choose their elected representatives. Hence, in contemplating the contentions put forth by the Petitioners, the question which arises is whether the right under Article 326 can be invoked to exclude certain individuals.

(c) Right of exclusion and Article 326

336. Article 326, while conferring the right to vote, also broadly provides that this right would be subject to certain statutory limitations. A brief perusal of the Constituent Assembly Debates, along with contemporary jurisprudence, clearly indicates that Article 326 confers the right to vote upon individuals and does not elaborate on the procedure of exclusion of persons from this entitlement. In order to ascertain where the power of exclusion has been enumerated, we will analyse the following: (i) Constituent Assembly Debates; (ii) the practice in comparative jurisdictions; (iii) relevant statute; and (iv) contemporary jurisprudence.

337. Primarily, the considerations of the Constituent Assembly during the discourse on the right to vote emphasized that determinations regarding disqualifications and exclusions from the right to vote should be outlined by the legislature through suitable statutes. In this context, focused deliberations were conducted, particularly addressing the prescription of qualifications for the right to vote, with Dr. B.R. Ambedkar asserting that the establishment of such qualifications ought to be entrusted to the legislature.[215] Similar observations were articulated by other members of the Assembly during discussions on the qualifications and disqualifications to the right to vote and inclusion of individuals in the electoral rolls.[216]

338. Furthermore, an examination of practices in comparable jurisdictions underscores that the authority to exclude individuals from voting is usually entrusted to the legislature. For instance, in the United Kingdom, the rationale and procedure for the exclusion of any individual from voting are delineated in the Representation of the People Act, 1918. Similarly, in the USA, the power and discretion to enforce the right to vote of citizens are bestowed upon Congress.[217]

339. In India, too, the Representation of People Acts, 1950 and 1951 delineate provisions relating to the disqualification from voting, removal of disqualification, the right to vote, and prohibitions against seeking votes by appealing to divisive factors. In fact, the 1951 Act also elucidates the right to vote under Section 62 and establishes limitations and disqualifications surrounding it. The Representation of People Act, 1950 has in place a scheme and procedure for effectuating changes onto the electoral roll if it is considered erroneous under Section 22. This provision states that if the electoral registration officer for a constituency, upon an application made to him or on his own motion, is satisfied that an entry in the electoral roll of a constituency is defective or erroneous, should be transposed to another place on account of the concerned person having changed his place of ordinary residence, or if the person is dead or is not entitled to be registered on that roll, then the officer may amend, transpose or delete such an entry. By virtue of the aforementioned sections, the Act thus clearly envisages mechanisms and procedures for disqualifying individuals from voting and removing the names of people from the electoral roll.

340. These deliberations and instances further strengthen the assertion that the aspect of exclusion from the right to vote cannot be invoked merely by alleging the violation of Article 326. In absence of any such right guaranteed under Article 326, and in light of there being such provision under the Representation of People Acts of 1950 and 1951, the question of exclusion of individuals from the right to vote needs to be viewed from the lens of the aforementioned two statutes.[218]

341. This leads us to the contention raised by the Petitioners that the inclusion of individuals in the electoral rolls by virtue of Section 6A has resulted in a violation of Article 326. To summarise our foregoing analysis, Article 326 bestows upon individuals the right to vote and the right to be included in electoral rolls unless disqualified by the legislature or other constitutional provisions.

However, the crucial question that arises is the nature of the right conferred by Article 326-particularly, whether it allows the Petitioners to seek an en masse removal of an entire block of people based upon generalised assertions surrounding their impact on another group of citizens and their voting rights.

342. We cannot answer this in the affirmative, not only because allowing such a plea would militate against the spirit of Article 326 and the centuries-old struggle for enfranchisement that it embodies, but also because the language of Article 326 unambiguously devolves the power to set out the mechanism for excluding people from the voter list to the legislature. If there is an inclusion of ineligible migrants in the voter list, persons aggrieved are free to invoke the existing provisions under the Representation of the People Acts of 1950 and 1951, to seek the removal of such individual voters from the voter list. Upon receipt of such an application, if the electoral Registration Officer, after due consideration, determined that an error existed in the inclusion of these individuals, the officer would have rectified the situation by amending, transposing, or deleting the relevant entries as per the prevailing legal provisions. We are unable to persuade ourselves to read an additional ground for disqualification and removal of voters directly into Article 326.

343. Additionally, the Petitioners’ arguments on this count demonstrate a fundamental misreading of Article 326. They fail to note that once deemed citizens by operation of Section 6A, the erstwhile-immigrants would enjoy equal rights as any other Indian citizen, including the right to vote, irrespective of the mode or time of acquisition of citizenship. Such constitutional rights cannot be summarily revoked or infringed upon.

344. We are, therefore, not inclined to accept the Petitioners’ contention that the influx of immigrants in the State of Assam has affected the right of the Assamese people to vote. Moreover, there has been no violation of the right of the Petitioners under Article 326 as it merely grants them the right to vote and be included in the electoral rolls, which continues to subsist to this day devoid of any interruption. As stated earlier, the Petitioners have not claimed any violation of their statutory rights and have failed to demonstrate the violation of any rights under Article 326 of the Constitution.

x. Article 355 and Section 6A

345. The Petitioners contended that Section 6A is violative of Article 355 of the Constitution on account of the continued presence of millions of illegal Bangladeshi immigrants in Assam, purportedly, leading to a transformation in the demographic composition of the State. They contended that the continuing influx has resulted in a scenario where the indigenous population of Assam finds themselves effectively reduced to a minority in their own State.

346. Drawing upon the precedent in Sarbananda Sonowal (supra), the Petitioners posit that Assam is currently grappling with a state of ‘external aggression’ and ‘internal disturbance’ due to the said influx of immigrants. Consequently, they argue that it becomes the duty of the Union, as provided in Article 355, to undertake necessary measures for the protection of Assam. In such circumstances, the Petitioners contend that Section 6A, in its current form, contravenes Article 355 and should, therefore, be deemed unconstitutional and struck down.

347. The Petitioners further argued that the Union’s obligation, as outlined in Article 355, to safeguard a ‘State’ from ‘external aggression’ encompasses not only a responsibility towards the territorial integrity but also extends to the inhabitants of the State, encompassing their culture and identity. According to the Petitioners, this duty mandates the State to shield itself from cultural aggression arising from extensive migration.

348. Au contraire, the Respondents maintained that the conclusions drawn in Sarbananda Sonowal (supra) are distinguishable, as that case primarily focused on the inadequate detection and deportation of illegal migrants entering after the year 1971, without delving into the provisions related to the grant of citizenship under Section 6A. Moreover, it is asserted that the prerequisite for ‘external aggression’ is the principle of ‘animus belligerendi’, and since the migration in question was distress-driven, intending to seek refuge in India, it should not fall within the purview of Article 355.

349. The Respondents also contend that Article 355 should not be considered an independent and standalone basis for challenging Section 6A. They argue that any challenge to Section 6A based on the alleged violation of Article 355 would be unsuccessful unless the claimed deprivation of rights can be directly linked to Part III of the Constitution. Additionally, the Respondents assert that the primary objective of Section 6A was to provide a lasting solution to the disturbances in Assam and to facilitate the governance of the state in conformity with the constitutional provisions. According to the Respondents, Section 6A therefore does not contravene the provisions of Article 355; instead, it strengthens and reinforces the principles enshrined therein.

350. Against this backdrop, the Court is confronted with deciding whether Section 6A is unconstitutional for being violative of Article 355.

(a) Intention behind Article 355

351. In order to comprehend the reason behind the inclusion of Article 355, it is vital to understand its intended objective. Article 355 states that it is the duty of the Union to protect every State against ‘external aggression’ and ‘internal disturbance’ and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution. Article 355, expounded in Part XVIII of the Indian Constitution, which pertains to ‘Emergency Provisions,’ was initially not present in the Draft Constitution of 1948. However, it was subsequently introduced in 1949 by the Chairman of the Drafting Committee in the Constituent Assembly.[219] At that time, Article 355 was denoted as Article 277A and was presented for discussion in the Constituent Assembly along with draft Articles 278 and 278A, now recognized as Articles 356 and 357 of the Indian Constitution.

352. In the context of the introduction of draft Article 277A, later designated as Article 355, Dr. B.R. Ambedkar elucidated its underlying purpose. He emphasized that despite the numerous provisions conferring overriding powers on the Center, the Indian Constitution was fundamentally federal, with States having primacy in legislating over their designated domains. Accordingly, if the Centre was to interfere in the administration of provincial affairs through Article 356 and 357 (draft Articles 278 and 278A of the Indian Constitution), there ought to be some obligation which the Constitution imposes upon the Center. It was emphasized that such an ‘invasion’ by the Centre of the Provincial field “must not be an invasion which is wanton, arbitrary and unauthorized by law.” Thus, it was succinctly stated that “in order to make it quite clear that Draft Arts. 278 and 278A are not deemed as a wanton invasion by the Centre upon the authority of the provision, we propose to introduce Article 277A.”

353. Similar clauses appear in the Australian and American Constitutions. Dr. Ambedkar stated that Article 355 incorporated an additional clause to the principle enunciated in these other constitutions, namely, that it shall also be the duty of the Union to protect the Constitutional mandate in the Provinces. For context, Article 355 is seen to be borrowed from Article IV, Section 4 of the Constitution of the United States and Section 119 of the Australian Constitution. Article IV, Section 4 of the Constitution of the United States provides as follows:

354. Similarly, Section 119 of the Australian Constitution provides as follows:

355. The key differentiation, evident from the aforementioned provisions of the American and Australian Constitutions, as opposed to Article 355, lies in the terminology employed-specifically, the use of ‘invasion’ and ‘domestic violence’ in contrast to ‘external aggression’ and ‘internal disturbance’ as outlined in Article 355. Another notable distinction is that, in the corresponding provisions of the American and Australian Constitutions, it is mandated that the State must apply to the Centre for protection against domestic violence. In contrast, no such condition is stipulated in India under Article 355.

(b) Sarbananda Sonowal v. Union of India

356. In Sarbananda Sonawal (supra), the petitioner, a citizen of Assam, filed a writ petition challenging the constitutional validity of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), which was made applicable to the state of Assam for the detection and deportation of illegal immigrants entering into India, on or after 25.03.1971. The petitioner therein alleged, inter alia, that the IMDT Act had failed to effectuate the detection and deportation of such illegal immigrants. In comparison, the Foreigners Act, 1946, which was applicable to the rest of the country, was asserted to be more effective in deporting illegal immigrants. The petitioner therein argued that since the unabated illegal immigration posed a threat to the security of the State, the IMDT Act would be violative of Article 355 of the Constitution.

357. The Court analyzed the provisions of the IMDT Act and noted that it laid down a high threshold for establishing an individual as an illegal immigrant. Moreover, if a citizen of India wanted to inform the authorities regarding the whereabouts of an illegal immigrant, such a citizen needed to be a resident of the same police station where the immigrant was purportedly residing. Since the immigrants were constantly on the move, this condition was held to be arbitrary. In essence, the Court held that the IMDT Act had been purposefully enacted to provide shelter to the immigrants who entered Assam from Bangladesh after 25.03.1971.

358. The Court thereafter held that the Union has the duty to protect its citizens. While interpreting Article 355, the Court held that the term ‘aggression’ is of wide import and is different from the term ‘war’, which involves a contest between two nations for the purpose of vanquishing each other. On the contrary, the term ‘aggression’ is a broader term that may include complex situations depending on the fact situation and its impact. Accordingly, illegal immigration was held to be included in ‘external aggression’. Consequently, the Court held as follows:

359. Thereafter, the Court held that as compared to the Foreigners Act, 1946, the IMDT Act was not as effective in the detection and deportation of illegal immigrants and created insurmountable hurdles regarding the same. Hence, this Act was held to be beneficial for illegal immigrants, whose numbers ran into the millions and who were creating a scenario of insurgency in the State of Assam. Accordingly, the Act was held to be violative of Article 355.

360. We respectfully agree with Sarbananda Sonowal (supra) in its holding that the term aggression in Article 355 is of a wide import and can include unabated migration if it poses a threat to the security of the state. Therefore, in such cases, the Union indeed bears a duty to protect the State from such unabated immigration that it amounts to external aggression or internal disturbance; and those statutes which violate this duty can be held unconstitutional.

361. Having established that, we shall now consider whether Section 6A falls flat because of being violative of Article 355.

(c) Section 6A vis-a-vis Article 355

362. In this regard, the Respondents have argued that the claim under Article 355 is not maintainable since migration cannot be termed as external aggression, and because a statute cannot be held unconstitutional for being violative of Article 355 simpliciter. However, as seen above, this contention has already been negatived in Sarbananda Sonowal (supra), to which we profoundly agree. Therefore, their objection against the maintainability of Petitioners’ claim is rejected.

363. That being said, the Respondents are seemingly right to contend that the cited decision is not applicable to the facts at hand presently. As may be seen from the reproduction of the analysis in Sarbananda Sonowal (supra) at paragraph 358 above, this Court held that migration could constitute ‘external aggression’. Although the present situation is similar in nature to Sarabananda Sonowal (supra), but it differs in degree. There, this Court was dealing with a situation where millions of illegal immigrants had been coming into the State of Assam incessantly post-1971 and were posing a security threat for the country. This understanding of ‘external aggression’ is also in tune with the case of ExtraJudicial Execution Victim Families Assn. v. Union of India,[220] wherein this Court interpreted the term and held that it threatens the security of the country. In Constituent Assembly Debates as well, the term ‘external aggression’ was interpreted to include situations similar to war, without its actual declaration.[221]

364. However, in the present case, Section 6A is limited in its ambit and does not by itself create unabated migration or legitimize its continuance. As was seen in paragraph 25 of this judgement, Section 6A segregates immigrants from East Pakistan to Assam into three classes. It grants deemed citizenship only to the immigrants who migrated before 01.01.1966, and citizenship by registration to immigrants between 01.01.1966 and 25.03.1971. Further, when read along with other legislations on immigration and citizenship, it declares by implication, immigration into the State post-1971, as illegal. In fact, Section 6A adopts a practical solution for the problem of incessant illegal immigration into Assam by devising an implementable solution keeping in mind India’s commitments, international relations and administrative realities.

365. Not only this, as was deliberated in the section on ‘manifest arbitrariness’, the migrants also need to satisfy certain conditions for invoking Section 6A, apart from being persons of Indian origin and ordinary residents in India. Hence, unlike the immigration scrutinized in Sarbananda Sonowal (supra), Section 6A addresses a controlled and regulated form of immigration that in our opinion would fall short of ‘external aggression’.

366. Along similar lines, the migration legitimized by Section 6A also does not constitute internal disturbance. As was discussed before, Section 6A was a crucial step in bringing quietus to the political upheaval in Assam and marked the culmination of various agitations surrounding illegal immigration and the rights of indigenous communities. Given this background, it is difficult to accede to the proposition that Section 6A caused ‘internal disturbance’.

367. Hence, the claim of the Petitioners regarding Section 6A being contrary to Article 355 cannot be accepted. However, that being said, upholding the constitutionality of Section 6A should not be construed as an impediment in implementing existing citizenship and immigration legislations, or giving effect to other judicial decisions controlling the field.

xi. Citizenship Act vis-a-vis the IEAA

368.The Petitioners have finally contended that the Immigrants (Expulsion from Assam) Act, 1950 (IEAA), being a special statute qua the immigrants in Assam, alone can apply to the exclusion of the Foreigners Act, 1946. Accordingly, the Petitioners assailed the phrase ‘detected to be a foreigner’ in Section 6A, in so far as it applies to the Foreigners Act, 1946 and not the IEAA. In addition to this, the Petitioners contended that the IEAA, is a Parliamentary Statute, and its main purpose being that of expulsion, should apply exclusively to the immigrants in Assam.

369. The Respondents have not made any particular submissions in this regard. However, for the sake of the comprehensiveness of analysis, we shall address this issue as well.

370. Having taken into account these contentions, the issues that arise for our consideration are twofold- (i) whether the IEAA should apply to the immigrants in Assam, to the exclusion of the Foreigners Act, 1946; and (ii) whether the IEAA is in conflict with the intent and aim of Section 6A.

371. We must note here that the Petitioners have argued that the IEAA should override the provisions of other enactments like the Foreigners Act, 1946 or Section 6A, as they presume some conflict between these legislations. However, we find that this fundamental assumption made by the Petitioners, as to the existence of a conflict, is misplaced. Indeed, it is not only possible but also our endeavor to read all the enactments controlling the field harmoniously, supplementing and complementing each other.

372. The intent behind the IEAA can be understood from its Statement of Objects and Reasons stipulating that:

373. This intention is manifested in Section 2 of IEAA, which grants Central Government the power to direct the removal of immigrants who are detrimental to the interests of India.

374. Similar to this, the preamble of Foreigners Act, 1946 reads:

375. In light of this objective, Section 3 (1) of the Foreigners Act, 1946 empowers the Central Government to make provisions concerning foreigners’ entry, departure, presence, or continued presence in India. Without diminishing the expansive authority granted by Section 3 (1), Section 3 (2) confers upon the Central Government the power to issue comprehensive orders regarding foreigners, which include directives such as prohibiting a foreigner from remaining in India or any specified area, requiring the individual to meet the cost of removal from India, or compliance with specified conditions, etc.

376. We find from a perusal of both, the IEAA and the Foreigners Act, 1946, that these legislations seek to regulate the residence and departure of foreigners in India. To that extent, there is thus no conflict between the Statutes and both of them supplement and complement each other within the framework of Section 6A. This is also seconded by Sarbananda Sonawal (supra), which held:

377. That apart, and as held by the Court in Sarbanda Sonawal (supra), apart from the IEAA, there are various other statutes- including the Passport (Entry into India) Act, 1920, the Foreigners Act, 1946, the Immigrants (Expulsion from Assam) Act, 1950 and the Passport Act, 1967-which are applicable to the State of Assam.

378. In light of the brief foregoing analysis of various statutes, we are of the considered opinion that Section 6A need not be construed in a restrictive manner to mean that a person shall be detected and deported only under the Foreigners Act, 1946. If there is any other piece of legislation such as the IEAA, under which the status of an immigrant can be determined, we see no reason as to why such statutory detection shall also not be given effect to, for the purposes of deportation. We thus hold that the provisions of IEAA shall also be read into Section 6A and be applied along with the Foreigners Act, 1946 for the purpose of detection and deportation of foreigners.

379. Similarly, in light of this, we find it difficult to accept the second contention of the Petitioners that the IEAA is a complete code in dealing with the situation of immigrants in Assam, and that Section 6A cannot prescribe contrary norms by granting immigrants citizenship. As discussed above, IEAA is only one of the statutes that addressed a specific problem that existed in 1950. The issue of undesirable immigration in 1950 necessitated the promulgation of the IEAA and the granting of power to the Central government to expel such immigrants. On the contrary, the provisions of Section 6A have to be viewed from the focal point of 1971, when Bangladesh was formed as a new nation and an understanding was reached to grant citizenship to certain classes of immigrants who had migrated from erstwhile East Pakistan, as has been detailed in paragraphs 230 and 231 of this judgement. Hence, Section 6A, when examined from this perspective, is seen to have a different objective-one of granting citizenship to certain classes of immigrants, particularly deemed citizenship to those immigrants who came to India before 01.01.1966 and qualified citizenship, to those who came on or after 01.01.1966 and before 25.03.1971.

380. Since the two statutes operate in different spheres, we find no conflict existing between them. The Parliament was fully conversant with the dynamics and realities, while enacting both the Statutes. The field of operation of the two enactments being distinct and different and there being a presumption of the Legislature having informed knowledge about their consequences, we decline to hold that Section 6A is in conflict with a differently situated statute, namely the IEAA.

381. Instead, we are satisfied that IEAA and Section 6A can be read harmoniously along with other statutes. As held in Sarbananda Sonawal (supra), none of these Statutes exist as a standalone code but rather supplement each other.

382. We may also hasten to add that the present reference is restricted and limited to the constitutional validity of Section 6A, and the extent of applicability of IEAA is not the subject matter of reference. As discussed earlier, there are multiple statutory enactments to address the influx of immigrants in Assam, namely Section 6A of the Citizenship Act, the Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, the Passport (Entry into India) Act, 1920 and the Passport Act, 1967. Hence, in our view, the IEAA must be effectively applied along with all other Statutes which occupy similar or related fields and are, in a way, complementary to each other.

xii. Interface with international law

383. In support of the constitutionality of Section 6A, the Respondents have argued that an international norm against statelessness exists, and thus, the Court should harmonize the interpretation of domestic law with international law. They contend that holding Section 6A unconstitutional would potentially render these immigrants stateless, and therefore, the Court should refrain from invalidating this provision.

384. In light of the discussion in the foregoing sections, since we have not been able to persuade ourselves to strike down Section 6A on the strength of the contentions of Petitioners, the need to examine the issue of statelessness does not arise and is rendered academic.

385. The Petitioners too have invoked Article 27 of the ICCPR, to argue that since Section 6A impacts the culture of original inhabitants, it therefore violates Article 27.

386. Similar to Article 29 of the Constitution of India, Article 27 of the ICCPR also restricts intervention in one’s culture.[222] In this regard, since we have already analysed in detail that Section 6A per se does not intervene in culture of Assamese people, we see no need to reagitate the issue here. In any case, it is an established principle that international law cannot trump domestic law.[223] Therefore, Section 6A cannot be assailed on the ground of the perceived violation of Article 27 of the ICCPR as well.

F. CONCLUSIONS AND DIRECTIONS

387. Drawing upon the comprehensive analysis presented in the preceding sections, we thus hold 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. Furthermore, Section 6A does not clash with the IEAA or established principles of international law. Hence, the constitutional validity of Section 6A, as contested before us, is resolved accordingly.

388. Nevertheless, it is imperative to acknowledge and address the valid concerns raised by the Petitioners regarding the persistent immigration in the State of Assam post 25.03.1971. 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.

389. On account of these concerns, we passed an order on 07.12.2023 and directed the Respondent Union of India to provide data, inter alia, the estimated inflow of illegal migrants into India after 25.03.1971, the number of cases presently pending before the Foreigner Tribunals for such immigrants and the extent to which border fencing has been carried out.

390. Regarding the inquiry into the estimated influx of illegal migrants post 25.03.1971, the Union of India was unable to provide precise figures due to the clandestine nature of such inflows. This underscores the necessity for more robust policy measures to curb illicit movements and enhance border regulation. Additionally, it was disclosed that approximately 97,714 cases are pending before the Foreigner Tribunals, and nearly 850 kilometres of border remain unfenced or inadequately monitored.

391. We hold that while the statutory scheme of Section 6A is constitutionally valid, there is inadequate enforcement of the same-leading to the possibility of widespread injustice. Further, the intention of Section 6A, i.e., to restrict illegal immigration post- 1971 has also not been given proper effect. Accordingly, we deem it fit to issue following directions:

392. For this purpose, let this matter be placed before Hon’ble the Chief Justice of India for constituting a bench to monitor the implementation of the directions issued hereinabove.

393. These writ petitions are accordingly disposed of in terms of this judgment.

394. Pending applications (if any) are also disposed of.

Per J.B. Pardiwala, J.

For the convenience of exposition, this judgment is divided into the following parts: –

1. I have had the benefit of reading a very erudite judgment penned by my learned brother, Justice Surya Kant – holding Section 6A of the Citizenship Act, 1955 (“the Citizenship Act”) to be constitutionally valid. However, with all humility at my command, I beg to differ with the views expressed by Justice Surya Kant on certain issues.

2. I have examined the matter from a different dimension, more particularly by applying the doctrine of temporal reasonableness. I propose to hold Section 6A of the Citizenship Act invalid with prospective effect, for the reasons I shall assign hereinafter in my judgment.

3. However, before I proceed to express my views, I would like to highlight a few salient features of the judgment penned by Justice Surya Kant.

I. SALIENT FEATURES OF THE JUDGMENT PENNED BY JUSTICE SURYA KANT.

4. Justice Surya Kant, in his judgment, after giving an overview of the jurisprudence regarding the concept of citizenship and the associated statutory framework in India and various other international jurisdictions, has framed and discussed twelve issues. The first two issues are preliminary in nature and deal with the scope and extent of judicial review and the applicability of doctrine of delay and laches to the present case. The remaining ten issues pertain to the various challenges to the constitutionality of Section 6A of the Citizenship Act as raised by the Petitioners.

5. In the present judgment, I have dealt with the issues pertaining to the manifest arbitrariness and temporal unreasonableness of Section 6A of the Citizenship Act. Hence, I do not deem it appropriate to express my views on all the issues as framed by Justice Surya Kant in his judgment. I have expressed my concurrence or disagreement, as the case may be, with the views taken by him, only where I deemed it to be completely necessary for the purposes of answering the questions framed by me in this judgment.6. On the first prefatory issue pertaining to the scope and extent of judicial review, Justice Surya Kant has held that it is well within the domain of this Court to examine the challenges raised by the petitioners against the vires of Section 6A of the Citizenship Act. He has considered and rejected the objections of the respondents that Section 6A, being in the nature of foreign policy, should not be examined on the touchstone of constitutionality[1].

7. Further, Justice Surya Kant has delineated the extent of judicial review and has observed that while examining the constitutionality of a policy, the courts have to examine whether the policy infringes upon the fundamental rights of the citizens, contravenes constitutional or statutory provisions or displays manifest arbitrariness, capriciousness or mala fides. At the same time, he has clarified that this Court should not sit in judgment over a policy to determine whether revisions are necessary for its enhancement.

8. On the second preliminary issue pertaining to delay and laches, Justice Surya Kant has held that although there has been a considerable delay in filing of the present batch of petitions, yet they do not deserve to be dismissed at the outset as they raise substantial questions that pertain to the constitutional validity of a statutory provision and affect the public at large[2]. I concur with the views expressed by him on both the prefatory issues.

9. On the substantive issues, Justice Surya Kant has first dealt with the submission of the petitioners that Section 6A of the Citizenship Act is violative of the preambular notion of fraternity. After elaborating on the idea of fraternity as understood by the framers of our Constitution in detail, he has held that the ethos underlying Section 6A align with the concept of fraternity, as envisaged by our Constitution and interpreted by our courts. He has held that the concept of fraternity cannot be applied in a restrictive manner to protect and promote the endogamous way of life of any specific community[3].

10. Justice Surya Kant has thereafter examined if Section 6A of the Act is violative of Articles 6[4] and 7[5] respectively of the Constitution and whether the Parliament in exercise of its powers under Article 11[6] of the Constitution could have enacted such a provision. He has held that it was within the competence of the legislature to enact the provision and that the conditions mentioned under Section 6A are similar to those under Articles 6 and 7 of the Constitution, thereby indicating that Section 6A aligns with the underlying object of both these Articles, which was to grant citizenship to people affected by the partition of India[7].

11. While I agree with my learned brother’s view that the Parliament, undoubtedly, has the jurisdiction to specify conditions for the conferment of citizenship and thus Section 6A of the Citizenship Act is not rendered void for the lack of competence of the legislature, I wish to express my disagreement with the fundamental premise of his reasoning that Section 6A is similar in form and identical in spirit with Articles 6 and 7 respectively of the Constitution.

12. A close reading of both the aforesaid Articles would indicate that unlike Section 6A(3) of the Citizenship Act which entrusts the State with the duty of detecting immigrants and conferring citizenship on them, Article 6 prescribes for a registration system that places the onus of individually undertaking such registration on the person who wishes to avail citizenship. Secondly, unlike Section 6A(3) of the Citizenship Act which has no prescribed end-date for the completion of registration, Article 6 prescribes that an application for registration has to be made before the date of commencement of the Constitution. As discussed by me in detail in the later parts of this judgment, these two crucial differences are the underlying reasons for shrouding Section 6A of the Citizenship Act with a cloak of unconstitutionality.

13. Justice Surya Kant has further dealt with the challenge raised by the petitioners that Section 6A of the Citizenship Act is violative of Article 14[8] of the Constitution. While rejecting the preliminary objection raised by the respondents that the petitioners cannot seek equality in regard to a restriction as opposed to a benefit[9], Justice Surya Kant, after a detailed consideration of the arguments and precedents, has rejected the contention of the petitioners and has held that Section 6A does not violate Article 14. He has held that Section 6A is a result of a political settlement between the Government and the people of Assam, namely the Assam Accord, and thus is not violative of Article 14 for treating Assam differently from the rest of the States[10].

14. Further, on the question of Section 6A of the Act being ‘manifestly arbitrary’ and thus violative of Article 14, Justice Surya Kant has held that neither the cut-off dates[11] prescribed in the scheme of Section 6A of the Citizenship Act nor the criteria and the procedure[12] provided for conferment of citizenship under the said provision are devoid of reason or are palpably arbitrary. For these reasons, he has held that Section 6A does not suffer from manifest arbitrariness.

15. I am in agreement with the view taken by Justice Surya Kant that it was permissible for the legislature to enact Section 6A of the Citizenship Act solely for the State of Assam in view of the extraordinary conditions prevailing therein and the Assam Accord which was entered into as a culmination of such circumstances. Further, I concur with his view that Section 6A cannot be said to be violative of Article 14 for being under-inclusive. However, I differ from his views on the aspect of manifest arbitrariness for the reasons that I have assigned in the later parts of this judgment. I am also of the considered view that Section 6A has acquired unconstitutionality subsequent to its enactment in 1985 by efflux of time and has thus become violative of Article 14 for being temporally unreasonable. I have dealt with this aspect too in detail in the later parts of this judgment. 16

16. The next issue which my learned brother has dealt with pertains to the violation of the Article 29[13] of the Constitution on account of Section 6A of the Citizenship Act. The view taken by him is that Section 6A does not deal with culture, but merely prescribes the conditions for conferment of citizenship on certain categories of immigrants. Thus, any impact on culture is only incidental and not direct or intentional. He has also held that Section 6A does not compel the pre-1971 immigrants to continue to reside within the territory of Assam after having obtained Indian citizenship which entitles them to reside and settle in any part of the country[14]. In the ultimate analysis, he has held that due to the failure of the petitioners to establish an actionable impact on Assamese culture, Section 6A cannot be held to be violative of Article 29 of the Constitution[15].

17. Justice Surya Kant has also considered the issue as to whether Section 6A of the Citizenship Act is violative of Article 21[16] of the Constitution, and has held that the petitioners have failed to show a constitutionally actionable impact. He has taken the view that the impact caused in the State of Assam due to immigration can be attributed to several factors other than just Section 6A of the Citizenship Act. For such reasons, he has held Section 6A to be non-violative of Article 21 of the Constitution[17] .

18. The next issue considered by Justice Surya Kant is whether Article 326[18] of the Constitution stood violated by Section 6A of the Citizenship Act. After traversing the history and evolution of adult franchise in India and the case laws on this aspect, he has held that the petitioners have failed to show how their rights under Article 326 have been violated by Section 6A. He has also observed that the language of Article 326 unambiguously confers the power to set out the mechanism for excluding people from the electoral rolls on the legislature. It is, thus, open to the petitioners to follow the mechanism prescribed under the Representation of People Act, 1951 to seek the removal of individual immigrants, wherever such immigrants are wrongly enrolled on the electoral rolls[19].

19. Justice Surya Kant has also examined the contention raised by the petitioners that whether on account of continued presence of illegal immigrants, Section 6A of the Citizenship Act is violative of Article 355[20] of the Constitution.

Relying on the decision of this Court in Sarbananda Sonowal v. Union of India reported in (2005) 5 SCC 665, he has rejected the preliminary contention of the respondents that Section 6A of the Citizenship Act cannot be held unconstitutional for violating Article 355 simplicter. However, he has held that the magnitude and degree of immigration in the case governed by Section 6A is much lesser than that referred to in the Sarbananda Sonowal (supra) case, and thus doesn’t amount to external aggression[21].

20. Justice Surya Kant has also considered the interplay of Section 6A of the Citizenship Act with Immigrants (Expulsion from Assam) Act, 1950 (“IEAA, 1950”) and has held that Section 6A should be read harmoniously with the other existing provisions and thus it cannot be said to be contrary to the object of the IEAA, 1950[22].

21. Finally, Justice Surya Kant has held that Section 6A of the Citizenship Act is not violative of any international covenant, treaty or any other obligation imposed on India by any international law[23].

II. FACTUAL MATRIX

22. For a more comprehensive understanding of the issues raised in the present case, it is necessary to refer to the historical and sociological context in which these issues have arisen.

A. Historical Background

i. Colonial

23. Between 1817 and 1826, there were multiple invasions by the Burmese into Assam. This brought the Kingdom of Ava, i.e., the sovereign kingdom that ruled Upper Burma into conflict with the British East India Company.

24. There was a great deal of mistrust and friction between the British and the Burmese. This culminated into the first Anglo-Burmese war in 1824 which ended with the signing of the Yandabo Peace Treaty on 24.02.1826 between the East India Company and the Burmese Kingdom of Ava. The treaty, interalia, stipulated for the ceding of the territories of Assam, Manipur, Arakan, and the Taninthayi to the British. However, two more wars were fought between the British and Burmese before annexation of Burma was completed by the British.

25. Through subsequent treaties, the regions included in the erstwhile Ahom Kingdom were integrated within the Bengal Presidency. Adjacent territories, including those forming the present-day states of Meghalaya, Mizoram, Arunachal Pradesh and Nagaland, were designated as the ‘frontier tracts’ and were annexed in due course. The British province that came to be known as ‘Assam’ roughly took shape by 1873. Subsequently, in the same year, the British introduced inner line under the Bengal Eastern Frontier Regulation of 1873 to restrict the migrants.[24]

26. In 1836, Bengali was declared as the official language of the Bengal province of which Assam was a constituent. In 1839, with the annexation of Maran/Matak territory in upper Assam, the British control over Assam was complete and the British saw it fit to extract the most out of Assam’s fertile lands.

27. The charter granted to the East India Company in 1833[25] marked the triumph of the British industrial interests over its mercantile interest and had a significant impact on the settlement of the newly conquered Assam. The Charter permitted the Europeans to hold land outside the Presidency towns on a long-term lease or with free-hold rights. This paved the path for a colonial plantation economy. The Assam Company which was started in 1839 became the first joint-stock company of India to be incorporated with limited liabilities under an Act of Parliament in August, 1845[26].

28. In 1858, with India coming under the rule of the British Crown as a unified territory, the growing demand of labour in tea-plantations and the expanding agriculture provided an opportunity to the planters to import cheap indentured labour from across India to the fertile valleys of Brahmaputra River in Assam.

29. This migration was accompanied by an influx of Bengali speaking population into positions of administrative services. The British dismantled the existing structure of governance, made Bengali the official language and recruited Bengali speaking populace to run the administration.[27] Assam was more sparsely populated than East Bengal. As a result, the Bengali speaking population coming from East Bengal reclaimed thousands of acres of land, cleared vast tracts of dense jungle along the south bank of the Brahmaputra, and occupied flooded lowlands all along the river.[28]

30. However, owing to the inconvenience of governing the Assam districts as a division of the Bengal Presidency and on the demand of the tea planters, Assam Proper, Cachar, Goalpara, Sylhet and Hill District were constituted as a separate Chief Commissioner’s province of Assam, also known as the North East Frontier, with capital at Shillong. With this development, Assamese, which had been replaced with Bengali as the official language during the annexation of Assam in 1830s, was reinstated alongside Bengali as the official language. However, Assam’s status as a separate province came to an end on 16.10.1905 and it was reconstituted as a part of the newly born composite province of Eastern Bengal and Assam.

31. The partition of Bengal was short-lived because of the rise of anti-British sentiment on account of their policies which led the British to attempt to bring about political stability in the territory of India. At the Delhi Durbar held on 12.12.1911, the partition of Bengal was annulled by a royal declaration. Assam-Sylhet was formally reverted to its old status as a Chief Commissioner’s province with effect from 01.04.1912. The province of East Bengal was reorganized by removing Assam from East Bengal, and Assam was constituted as a separate administrative province.

32. In 1937, the Government of India Act, 1935 (“GOI Act, 1935”) came into force. With the introduction of the GOI Act, 1935, the territory of Burma ceded from India and Assam was incorporated as a territory of India.

ii. Post-Independence

33. The Indian Independence Bill, 1947 proposed that all of Sylhet would become a part of East Bengal. After partition, Sylhet district was transferred to East Pakistan by a referendum.

34. The Indian Independence Act, 1947 was passed on 18.07.1947, dividing erstwhile India into two new nations, i.e., India and Pakistan. Considering the incessant migration at the time of partition, the Influx from West Pakistan (Control) Ordinance, 1948 was promulgated, putting into place a permit system. The ordinance was subsequently replaced by the Influx from Pakistan (Control) Ordinance, 1948. Thereafter, on 22.04.1949, the Influx from Pakistan (Control) Act, 1949 was enacted.

35. It was the understanding during the drafting of the Constitution that as Assam and East Bengal shared a long history of migration, thus it would not be prudent to apply the permit system for migration in East India vis-a-vis the permit system that was in place for the territory of North-West India and erstwhile West Pakistan. Consequently, the permit system was never implemented in relation to the border with East Pakistan.

36. At the time of independence, Assam occupied one-fifteenth of India’s total land surface and had a very fluid border. The muddy and riverine border with East Pakistan led to regular trouble as disputes over territory surfaced. There were claims and counter-claims about the territorial jurisdiction of India and East Pakistan. [29]

37. In 1950, keeping in mind the excessive migration taking place into Assam post-independence, the Government of India sought to stabilize the situation and protect the resources of the country from excess migration and enacted IEAA, 1950. During this period, there were instances of communal disturbance and some immigrants living in the districts of Goalpara, Kamrup and Darrang in Assam fled to East Pakistan, leaving their properties behind.[30]

38. Inter-alia in light of the aforesaid developments, an agreement between the Governments of India and Pakistan respectively was signed on 08.04.1950, popularly known as the Nehru-Liaquat Agreement[31], whereby refugees were allowed to return to dispose of their properties.

39. On 26.12.1952, the Influx from Pakistan (Control) Repealing Act, 1952 was enacted to repeal the Influx from Pakistan (Control) Act, 1949 and this ended the permit system w.e.f. 15.10.1952.

40. The Citizenship Act, 1955 came into force on 30.12.1955, inter-alia, prescribing and laying down the various manners and conditions under which the citizenship of India was to be obtained or granted.

41. Post the partition of the country, there were constant skirmishes between the two newly born nations, and the India-Pakistan war of 1965 occasioned a large-scale migration of people from East Pakistan (now Bangladesh) into India, particularly into the states of Assam and West Bengal, creating fresh security concerns.

42. Until 1963, the task of detection, prosecution and deportation of illegal immigrants was solely done by the police forces. Concerned by the excessive migration to Assam as well as the lack of judicial scrutiny in the procedure of detection and deportation of immigrants, the Government decided to establish tribunals in Assam to bring in an element of judicial scrutiny and as such the Foreigners (Tribunals) Order, 1964 was issued. The tribunals constituted under the said order were entrusted with the task of deciding whether a person was a foreigner or not as defined by the Foreigners Act, 1946.

43. Meanwhile, in the absence of any resolution of ongoing disputes between the East and the West Pakistan, the War of Independence broke out in March, 1971 in Bangladesh. By early April, several thousands of Bangladeshi citizens were killed resulting in a massive flow of refugees into India which took the form of a huge humanitarian crisis.

44. During this period, Assam was undergoing significant territorial changes with States such as Meghalaya, Manipur and Tripura coming into existence as well as the formation of the Union Territories of Mizoram and Arunachal Pradesh.

45. On 19.03.1972, a treaty of friendship, co-operation and peace, popularly known as the Indira-Mujib Agreement[32] was signed between India and Bangladesh.

46. A Joint Communique between the Prime Ministers of India and Bangladesh respectively was signed in Calcutta. Inter alia, it stated thus:

47. On 15.12.1972, the Bangladesh Citizenship (Temporary Provisions) Order, 1972[34], came to be promulgated by the Government of Bangladesh, which provided that any person whose father or grand-father was born in Bangladesh and who was a permanent resident of Bangladesh on 25.03.1971 and continued to reside in the present-day Bangladesh as on 25.03.1971, shall be a citizen of Bangladesh. In other words, all persons who migrated to India before 25.03.1971, were not entitled to Bangladeshi citizenship.

48. With the influx of Bengali speaking migrants from East Pakistan, the situation at the ground level in Assam underwent a significant change. The confrontation between Bengali and Assamese speakers took multiple forms. On the one hand, Assamese-speaking students boycotted classes, whereas on the other there was an increasing demand for state-support for the Bengali language.[35]

49. In March, 1972, when Guwahati University provided the students with an option of writing their exams in Bengali language, it evoked strong protest from Assamese students, who cited this as an attack on their identity and culture. This created a grave security situation in the area.[36]

50. Thereafter, it was proposed that a separate university, fully funded by the Central Government, would be established in Cachar. However, this did not go down well with the Assamese speakers. The Asam Sahitya Sabha and the All-Assam Students Union (“AASU”), followed by many others, opposed the idea of a separate central university in Assam and that of bilingual instruction in the universities of Assam[37]. An Assam Bandh, called by the AASU, was observed.[38] Clashes took place with instances of riot, loot, burning of homes, etc., taking place. Several people, including students died in the ensuing unrest. [39]

51. Due to the protest and agitations in Assam, the Government withdrew its decision to open a university in Cachar and also introduced compulsory learning of Assamese till high school.[40] A formal announcement of the end of the agitation was also made by AASU.[41] However, the groundwork for future conflicts between the Bengali and Assamese speakers was gradually being prepared with hostilities continuing in some manner or the other.

iii. Assam Accord

52. By June 1978, the students belonging to the All-Guwahati Students Union (“AGSU”) and AASU staged several protests and demonstrations. They demanded, inter alia, that the flow of outsiders into Assam be checked, only the youth from Assam be employed in government undertakings and that they be allowed to write the Assam Public Service Commission examination in Assamese.[42] The AASU took to the streets, boycotted classes and eventually enforced a strike on 22.09.1978 which brought the state to a halt.[43]

53. The Chief Election Commissioner in 1978 made a statement that a large number of foreigners had entered the electoral rolls in the North-Eastern states of India. The news about discrepancies in the electoral rolls soon found its way into the Assamese popular press.[44]

54. In 1979, during the routine update of the electoral rolls, various illegal immigrants were detected therein causing the AASU to observe its first statewide strike to protest against the infiltration of illegal immigrants. The publication of the electoral rolls of the Mangaldoi parliamentary constituency ahead of a bye-election in 1979 is widely considered as the proximate episode which kickstarted the six-year long student-led movement in Assam.

55. The reports that the number of eligible voters in Mangaldoi had increased by a vast margin since the last election held two years ago, led many in the state to make formal complaints that challenged the citizenship of many voters included in the electoral rolls. This came in the wake of multiple, well-publicised accounts detailing the continuous high levels of migration from Bangladesh into Assam. Shortly after this, in June, 1979, the AASU demanded the detection, disenfranchisement and deportation of foreigners.

56. In 1980, the then Prime Minister once again invited leaders of the Assam movement for deliberations over the prevailing issues. The student leaders met the Prime Minister and submitted a memorandum detailing their demands, the economic situation and a future roadmap for Assam. Their demands included a register of citizens, detection of all foreigners who came to live in Assam since 1951 and their deportation. However, consensus could not be arrived at between the Central Government and the leaders of the Assam movement leading to the continuation of the agitation. The student leaders were given the option of accepting 1967 as the cut-off date for the detection and deportation of illegal citizens but the offer was turned down.[45]

57. Between 1980 and 1983, talks with the student leaders continued at the highest level of the Central Government. However, the Assamese leaders stuck to the 1951 benchmark for grant of citizenship as per the Citizenship Act.

58. Arupjyoti Saikia has observed that the student-led movement presented “no specific charter or program for bringing political and economic change to Assam. Instead, it focused on two demands that the agitators believed would bring the desired change – first, push back the foreigners and secondly, increase Assam’s share in the Union budget.”[46] He has also observed that “the movement at its essence was largely in the hands of student leaders -both rural and urban. Students across the rural and urban divide had withdrawn from classrooms, the large majority missing class for an entire year in 1980.”

59. In 1981, both the Central government and the Assam leaders tried to seek an answer to the definition of ‘illegal’ foreigners[47], and the former was willing to deport those who came after 1966.[48] However, by the end of 1982, the dispute was mainly about the fate of those who had entered Assam between 1961 and 1971[49]. The Central Government agreed that those who had entered Assam post-1971 would be deported from India-a decision believed to have been supported by various political groups in Assam.

60. After a little less than a year of the President’s Rule in Assam, the Union government tried to get the support of the opposition parties to hold elections for the constitution of the Seventh Assam Legislative Assembly. The Union government, without specifying the legal and political modalities for the identification of a foreigner, offered to drop from the electoral rolls the names of foreigners and identify those who had come to Assam between 1966 and 24.03.1971 (the date is linked with the Bangladesh Liberation War which began on 25.03.1971), but the offer was rejected by the Assamese student leaders.[50]

61. As the Central Government decided to proceed with the state legislative assembly elections in Assam in February 1983, protests turned violent and many were reportedly killed in the ensuing violence. What was till then largely seen as a powerful, popular and relatively peaceful movement came at the center of national and international attention after this unfortunate turn of events.

62. The holding of elections in Assam in February 1983 was a constitutional requirement after a one-year period of President’s Rule. However, the fundamental demand of the protestors for holding elections, i.e., the revision of electoral rolls was not fulfilled.[51] The Assamese leaders were steadfast in their demand that “no election should be held to the Assembly or Parliament before the deletion of the names of foreigners from the electoral rolls.”[52]

63. Despite the unstable political environment existing in Assam at that time, the Central Government decided to proceed with the elections. However, the elections took place in the backdrop of distrust between the student-led movement and the Central government. As per news reports, on the day of voting, many polling stations returned empty ballot boxes.

64. On the morning of 18.02.1983, the unfortunate tragedy of Nellie unfolded. Attackers, reportedly armed with guns, knives, spears, bows and arrows attacked the people of Nellie.

65. Post the Nellie incident, the situation became more tense and volatile than ever before. As per various reports, the religious narrative overtook the regional, economic and political character of the anti-foreigner movement, and there was heavy communal, linguistic and ethnic polarization. The social relations between communities – based on economic exchanges and agrarian relations – had been less polarized prior to 1980. The Nellie incident was not an isolated event and many places reported widespread clashes.

66. In light of the ongoing instability and violence in the State, the main issue was the fate of the people in Assam who had migrated from East Pakistan or, later, from Bangladesh. The discord was about the cut-off date, as it was called, that is the year until which the migrants would be accepted as Indian citizens by the leaders of the movement. The Central Government, in their early negotiations with the Assamese leaders, suggested 1971 as this date, which was generally agreed upon by the opposition political parties. Given the humanitarian crisis, this consensus was crucial. However, the Assamese leaders insisted on 1951 as the cut-off date.

67. However, after February 1983, the mass support for the agitational programs reportedly began to wither. The intensity of popular mobilization had fizzled out by the second half of 1983. The events of early 1983 had created a sense of cluelessness; many were tormented by the violent turn the movement had taken, and the movement began to lose its unifying appeal.

68. In 1983, the Government of India enacted the Illegal Migrants (Determination by Tribunals) Act, 1983 (“IMDT Act”) by which tribunals were established for determining whether a person is an illegal migrant and to enable the Central Government to expel or deport those determined as such. The IMDT Act was made applicable to anyone who came into India after 25.03.1971 and was made applicable only to the State of Assam. However, in 2005, a three-Judge Bench of this Court in Sarbananda Sonowal (supra) struck down the IMDT Act and the rules made thereunder.

69. However, after a period of ebb, the agitation briefly resurfaced in mid-1984. This was largely an outcome of the State Government’s determination to correct the electoral rolls in June, 1984 without securing any political consensus. Once again, students took to the streets and called for bandhs and picketing.[53]

70. However, as the movement became long drawn, the leaders too recognized the ground reality – that it was time for a settlement with the Central Government. After years of popular protest, the number of street agitators had declined and the outlook of the leaders of the movement also changed accordingly.[54]

71. After a series of negotiations held in Shillong, agreement was arrived at on some of the most contentious issues on 30.07.1985.[55] Early in the morning of 15.08.1985, the Central Government and the leaders of the movement signed the Assam Accord, which promised that all immigrants who had arrived in Assam after 1965 would be disenfranchised and immigrants who arrived after 24.03.1971 would be deported. The Prime Minister also assured the student leaders that the state legislature, elected in the disputed poll of 1983, would be dissolved, with a caretaker government in control until fresh elections could be held. This was seen as the biggest victory for the leaders of the movement. Apart from the promises to accelerate the economic development of Assam, legislative and administrative safeguards were also promised by the Central Government to protect the cultural, social and linguistic identity and heritage of the Assamese people. Concerning those who had come to Assam post-1965, the then Home Minister clarified that though their right to vote would be suspended, they would not be harassed in any way and would continue to enjoy all other legal and constitutional rights.[56] The date of the beginning of the Bangladesh War, that is, 25.03.1971, was accepted as the cut-off date for the deportation of foreigners.[57] The Central Government also promised in the accord to erect a fence along the riverine and open part of the Indo-Bangladeshi border. This officially marked the end of the six-year-long anti-foreigner movement in Assam.

72. On the basis of the Assam Accord, the Government of India introduced Section 6A of the Citizenship Act, whereby it sought to codify the political settlement arrived at through a series of negotiations and provide clarity, inter-alia, on the status of citizenship of immigrants between 1950 to 1971.

B. Salient Features of the Assam Accord

73. As a result of the student movement and the ensuing negotiations between he Central Government, State Government, AASU, and the All Assam Gana Sangram Parishad (“AAGsP”), a Memorandum of Settlement was arrived at on 15.08.1985, which is commonly known as the “Assam Accord”. Terms of the Assam Accord are reproduced below for ease of reference: –

74. The clauses of the Accord dealt with, inter-alia, the following issues: –

75. For the purpose of the present discussion, it is important to highlight the features of clause 5 of the Accord which deals with the foreigners’ issue and also forms the basis of Section 6A of the Citizenship Act.

76. Clause 5.1 provided that foreigners who have entered into Assam after 25.03.1971 will continue to be detected and their names will be deleted from the electoral rolls and they will be deported from India.

77. Clause 5.2 provided for the regularization of citizenship of all the immigrants who had entered into Assam on or before 31.12.1965 including those whose names appeared in electoral rolls published in 1967.

78. Further, Clause 5.9 provided that “the Government will give due consideration to certain difficulties expressed by AASU/AAGSP regarding the implementation of IMDT Act, 1983”.

79. Clause 5 also provided for detection of people entering into Assam between 01.01.1966 and 24.03.1971. For this category of immigrants, citizenship was to be granted in terms of Clause 5.3 of the Accord. As per the said Clause, immigrants belonging to the aforesaid category were to be detected in accordance with the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964. As per Clause 5.4, upon detection the names of such immigrants were to be deleted from the electoral rolls and subsequently they would be required to get themselves registered for grant of citizenship in accordance with the Registration of Foreigners Act, 1939 and the Registration of Foreigners Rules, 1939, failing which they would be liable to get deported. Ten years post such detection, their names would be reinstated on the electoral rolls. Clause 5.3 subsequently became the basis of Section 6A(3) of the Citizenship Act.

III. SUBMISSIONS ON THE DAMAGE CAUSED DUE TO THE INFLUX OF ILLEGAL IMMIGRANTS INTO ASSAM

80. It is the case of the petitioners that the acute problem of illegal immigration has led to a major change of demography in the State of Assam, and is posing a serious threat to the unity, integrity and security of India. It was submitted before us that Section 6A of the Citizenship Act has directly impacted the political landscape of the State by granting citizenship to a large number of immigrants from Bangladesh thereby rendering the local population a minority.

81. It was submitted by the petitioners that the grant of citizenship in the manner provided under Section 6A of the Citizenship Act has altered the demographics of the State of Assam, which has led to the marginalization of the citizens belonging to various indigenous and ethnic groups living in the State prior to the coming into force of Section 6A.

82. The petitioners relied on a report relating to the unabated influx of people from Bangladesh into Assam dated 08.11.1998 submitted to the President by the then Governor of Assam, Lt. General (retd.) Shri S.K. Sinha.[58] The following key findings of the report were highlighted during the course of the hearing:

83. The petitioners, placing reliance on a study titled “The Change of Religion and Language Composition in the State of Assam in Northeast India: A Statistical Analysis Since 1951 to 2001”[62] conducted by Dr. Bhupender Kumar Nath and Prof. Dilip Nath, submitted that the districts bordering Bangladesh witnessed a significantly high growth of Bengali speakers post partition. The study indicated that from 1951 to 2011, the percentage of Bengali speaking population in Assam increased by 36.36% (from 21.2% to 28.91% of the total population of Assam), but during this period the proportion of Assamese speaking people in the State had declined by 30.18% i.e. (from 69.3% to 48.38% of the total population of Assam). However, rest of the districts did not experience a substantial change in linguistic composition. As far as the other languages are concerned, no major change was seen for Hindi, Nepali and other language groups.[63] Dr. Bhupender Nath, while relying on the empirical analysis based on district-level census data, concluded that the proportion of Bengali-speaking and Muslim population rapidly rose between 1951-2001, more than any other religion and language.[64] The same stands true as per the data available from the 2011 census as well. As per Dr. Nath, this unusually high growth could not be attributed to natural increase, and thus, could only be attributed to the influx of Bangladeshi immigrants into Assam. This could adversely affect the future of the Assamese language given the rate at which the immigration has been regularized.[65]

84. In other words, the submission of the petitioners is that while the proportion of Bengali speaking population has risen over the past few decades, the proportion of Assamese speakers has declined in all the districts of Assam. Such a change in the demography of Assam has led to many adverse consequences and may continue to cause damage to the interests of the State. The influx of immigrants into the State has accelerated population growth, altered demographic attributes, increased border fluidities and has created economic and political pressure on the country.[66]

85. In response to the aforesaid concerns raised by the petitioners, the learned Solicitor General fairly accepted that the negative consequences of the unabated influx on the people of Assam, as pointed out by the petitioners, cannot be denied. He further submitted that the problem is a serious and a continuing one. However, the aforesaid ongoing issues cannot form the basis for declaring Section 6A of the Citizenship Act as unconstitutional as the said provision is confined to a particular period of time.

IV. ISSUE FOR DETERMINATION

86. During the course of hearing, it was submitted by Mr. Shyam Divan, the learned Senior Counsel appearing for the petitioners, that there is no temporal limit to the operation of Section 6A(3) of the Citizenship Act which means that the provision continues to remain applicable till this date. He submitted that an immigrant of the 1966-71 stream can make an application even today for the purpose of seeking benefit under the said provision. He further argued that in the absence of any time-limit for working out the provision, it will remain on the statute book indefinitely and will continue to act as an incentive attracting immigrants to Assam. It was argued by him that in the absence of any prescribed time period for seeking the benefit of the provision, the same has also proved to be a fertile ground for local industries with regard to counterfeiting of documents, etc.

87. Mr. Divan further submitted that the power of the Central Government under Section 2 of the IEAA, 1950[67] to direct a person to remove himself is coupled with a duty to conduct expeditious detection and deportation of the immigrants. However, in the absence of any time-limit for working out Section 6A(3) of the Citizenship Act, it is difficult to balance the duty cast by Section 2 of the IEAA, 1950. He also submitted that for taking the benefit of registration under Section 6A(3), detection as a foreigner is a condition precedent. However, there is no method by which an immigrant can make a self-declaration, thereby shifting the onus of detection solely on the state and making it an endless exercise.

88. Mr. Vijay Hansaria, the learned Senior Counsel appearing for another set of petitioners, relied upon the constitutional scheme under Article 6(b)(ii) to argue that to be able to seek the benefit of citizenship under Article 6[68], a person migrating to India from Pakistan after 19.07.1948 had to make an application before the commencement of the Constitution. Thus, the scheme of Section 6A, in the absence of a temporal-limit on its functioning and the sole onus of detection on the state, marks a departure from the prevalent statutory scheme and leads to absurd consequences. Mr. Hansaria further submitted that the benefit of Section 6A should only be limited to the 32,381 people already detected as foreigners of the 1966-71 stream till date, as stated by Union of India in its affidavit, and should not continue any further.

89. The petitioners, in the alternative, submitted that the impugned provision may be struck down with prospective effect as the provision was inserted for a historic and limited purpose i.e., for granting citizenship to those immigrants who came in between the years 1966 and 1971. The petitioners relied upon the decision of this Court in Somaiya Organics (India) Ltd. & Another v. State of U.P. & Another reported in (2001) 5 SCC 519 and Synthetics and Chemicals Ltd. v. State of U.P. reported in (1990) 1 SCC 109 to buttress their submission.

90. Thus, having read into the line of reasoning as assigned by my learned brother Justice Surya Kant and also having regard to the specific submissions canvassed on behalf of the petitioners, more particularly, the submissions on temporal limits and manifest arbitrariness, the only question that needs to be addressed in my considered view is as under:

V. ANALYSIS

A. Scheme and Mechanism of Section 6A

91. Pursuant to the signing of the Assam Accord, the Citizenship Act was amended by the Parliament in order to give effect to the mandate of the Accord and accordingly Section 6A came to be inserted by the Citizenship (Amendment) Act, 1985. The Statement of Object and Reasons which accompanied the Citizenship (Amendment) Bill, 1985 reads as under: –

92. The Preamble to the Citizenship (Amendment) Act, 1985 reads as follows: –

93. A perusal of Section 6A of the Citizenship Act[69], more particularly the use of the words “Special provisions” and “Assam Accord” in the marginal note makes it abundantly clear that the said provision was in the nature of a special provision pertaining to citizenship and was intended only for a limited class of persons in Assam who were covered by the Assam Accord which, as stated earlier, was a political settlement meant to tackle the exigencies prevailing in the State of Assam at the time of signing of the Accord.

94. A close reading of Section 6A reveals that the benefit of citizenship to the immigrants from Bangladesh, as envisaged under the Assam Accord, has been conferred under the said provision in two distinct ways.

95. First, Section 6A sub-section (2) provides that persons of Indian origin who came into Assam from the territories now part of Bangladesh before 01.01.1966 and subsequent to their entry have been ordinarily resident in Assam are deemed to be citizens of India.

96. In other words, immigrants falling under the aforesaid category are automatically conferred citizenship by virtue of a legal fiction. For an immigrant to be entitled to the benefits under sub-section (2), the following requirements have been prescribed: –

97. Secondly, Section 6A sub-section (3) provides that persons of Indian origin who came into Assam from the territories now part of Bangladesh on or after 01.01.1966 but before 25.03.1971 and since then have been ordinarily resident in Assam and subsequently have been detected to be a foreigner, shall be liable to have their names deleted from the electoral rolls for a period of ten years from the date of their detection. The provision further stipulates that persons belonging to this category will be entitled to get themselves registered as citizens with the appropriate authority as per the prescribed procedure and the rules only upon detection as a foreigner and upon consequent deletion of their name from the electoral rolls.

98. Thus, unlike section 6A sub-section (2), the benefit under sub-section (3) is not automatically conferred but rather has to be availed by an immigrant after he or she has been detected as a foreigner by a tribunal constituted under the Foreigners (Tribunal) Order, 1964. In other words, to be able to avail the benefit under Section 6A sub-section (3), the following requirements have to be fulfilled: –

99. The White Paper on Foreigners Issue[74] published by the Government of Assam in 2012 (“White Paper”) explained the working mechanism of Section 6A as follows:

100. The rules for giving effect to Section 6A of the Citizenship Act were inserted in the Citizenship Rules, 1956 (“Rules, 1956”) vide the Citizenship (Amendment) Rules, 1986 which were brought into force by the notification dated 15.01.1987[75]. After the said amendment, Rule 16D[76] of the Rules, 1956 provided for reference to tribunals constituted under the Foreigners (Tribunals) Order, 1964 as prescribed under the Explanation (ii) to Section 6A(3) of the Citizenship Act. Rule 16E[77] provided for the jurisdiction of the Foreigners Tribunal to decide upon the references received under Rule 16D.

Rule 16F[78] prescribed the registering authority for the purpose of Section 6A(3) and the appropriate form[79] to be filled for the purpose of registration. Finally, Rule 16G[80] laid down the procedure for making a declaration under Section 6A(6) of the Citizenship Act.

101. The relevant rules pertaining to Section 6A of the Citizenship Act were incorporated virtually pari materia in the Citizenship Rules, 2009 (“the Rules, 2009”) thereby replacing the Rules, 1956. For the sake of clarity, the provisions pertaining to Section 6A of the Citizenship Act contained in the Rules, 1956 and their corresponding provisions in the Rules, 2009 are listed in the following table:

102. Rule 19 of the Rules, 2009 was further amended by the Citizenship (Amendment) Rules, 2013. The amended Rule 19 came into effect vide notification dated 16.07.2013. The amendment stipulated that all immigrants belonging to the 1966-71 stream, who had been detected as a “foreigner” by a foreigners tribunal before 16.07.2013 and who couldn’t register as per the prescribed procedure either due to the non-receipt of the order of the tribunal or due to the refusal of the registering authority owing to the delay in registration, would be provided one last opportunity to register themselves within the period prescribed in the amended Rule 19. A comparative chart showing Rule 16F of the Rules, 1956; Rule 19 of the Rules, 2009; and Rule 19 of the Rules, 2009 as amended by the Citizenship (Amendment) Rules, 2013 is produced below:

B. How many Immigrants eligible under Section 6A(3) of the Act

HAVE REGISTERED TILL DATE?

103. Although exact figures on the extent of immigration from Bangladesh into Assam are not available, yet the debates that took place in the Rajya Sabha during the introduction of the Citizenship (Amendment) Act, 1985 give an approximate number of immigrants who came into Assam from Bangladesh during the time-period covered under section 6A[81]: –

104. The White Paper mentions the following about the working of foreigners tribunals prior to the student-led agitation: –

105. It can be seen from the above that the detection of foreigners gained pace on the commencement of the student-led agitation in Assam. It could be presumed that certain number of immigrants of the 1966-71 stream would have either been detected and deported prior to the enactment of Section 6A in 1985, or might have left Assam apprehending such detection and deportation. However, even after taking into consideration such variations, the data on the number of immigrants detected by virtue of Section 6A, as presented to us by the Union of India, is not commensurate to the extent of influx that took place during the relevant period.

Number of immigrants belonging to the 1966-71 stream detected/registered:

Note: Although the white paper was published in 2012, yet the number of immigrants of the 1966-71 stream who have been detected as foreigners indicated therein is higher than that indicated in the Affidavit dated 11.12.2023.

106. As is evident from the table above, the number of immigrants belonging to the 1966-71 stream and detected as “foreigner” is significantly smaller in comparison to the approximate number of immigrants who had entered into Assam from Bangladesh between 01.01.1966 and 24.03.1971. This, in my considered opinion, doesn’t appear to be solely due to the inadequate implementation of Section 6A, but rather due to the inherent and manifest arbitrariness in the mechanism prescribed under the provision, which I shall elaborate upon in later parts of this judgment.

C. Object sought to be achieved by the prescription of Two Separate Cut-Off Dates

107. From the aforesaid discussion, it is clear that Section 6A creates three categories of immigrants by prescribing two distinct cut-off dates. The first two categories of immigrants are those who had immigrated on or before 24.03.1971 (i.e., those entitled to citizenship), and the third category consists of those who immigrated into Assam after 24.03.1971 and are considered as illegal immigrants who are liable to be deported. However, a different mechanism has been prescribed for acquisition of citizenship even within the first two classes, as indicated by the following table:

108. At this juncture, it is important to examine whether it was open to the legislature to prescribe two cut-off dates, thereby creating two different classes of immigrants who are entitled to citizenship by two distinct mechanisms. The determination of this question requires ascertaining whether there is any intelligible differentia between the two classes of immigrants, that is, those who immigrated prior to 01.01.1966 and those who immigrated between 01.01.1966 and 24.03.1971. The observations made by Justice Surya Kant in paragraphs 170 and 171 respectively speak for themselves. The said paragraphs are reproduced hereinbelow: –

109. The cut-off date of 01.01.1966 clearly categorizes the immigrants into two discernible and determinable categories. The first category is conferred citizenship by the mechanism prescribed under Section 6A sub-section (2) and the second category is conferred citizenship by the procedure prescribed under Section 6A sub-section (3).

110. Further, it is necessary to decipher the object sought to be achieved by creating two distinct categories of immigrants with fundamentally different procedure under Section 6A for the purpose of conferring the same benefit, that is, the benefit of conferment of citizenship on the immigrants from Bangladesh.

111. Indisputably, Section 6A was enacted to give statutory effect to the political settlement arrived at in the form of Assam Accord. The Accord was a result of years of negotiation that took place between the Central Government, State Government, AASU and AAGSP. The sui-generis scheme of Section 6A also reflects this process of negotiation, or “give and take”, so to say.

112. I have already discussed in paragraph 54 of this judgment that the proximate event which led to protests and demonstrations over the immigrant issue in Assam was the publication of the electoral rolls for the bye-elections to be held for the Mangaldoi constituency in 1979. The apprehension of the local population was that a large number of illegal immigrants had managed to get themselves on the electoral rolls thereby rendering the local population a minority in the coming bye-elections. The resentment soon translated into state-wide movement against illegal immigration, which was led at the forefront by several student-run organisations.

113. As Sangeeta Barooah Pisharoty has discussed in her book, Assam: The Accord, The Discord[82], and as also discussed in paragraph 56 of this judgment, initially, the demand of the protesting students was that the National Register of Citizens (“NRC”) prepared in the year 1951 should act as the baseline for detection and deportation of illegal immigrants. However, during the course of negotiations, an understanding was reached that 24.03.1971 would act as the cut-off date for detection and deportation of illegal immigrants. However, to avoid deadlocks and expedite the settlement, a further cut-off date of 01.01.1966 was decided as the cut-off date for disenfranchisement as opposed to deportation of the immigrants belonging to the 1966-71 stream. In other words, the said cut-off date was decided as the baseline for detection of immigrants and their consequent deletion from the electoral rolls.

114. Thus, it appears from an overview of the historical context that the only purpose behind the introduction of an additional cut-off date of 01.01.1966 and the corresponding concept of detection and deletion from the electoral rolls was to assuage the apprehensions of the protesting students. By mandating the deletion of all the immigrants belonging to the 1966-71 stream from the electoral rolls, it was hoped that the effect of wrongful inclusion of immigrants in the electoral rolls on the upcoming elections would be mitigated.

115. However, as discussed in the later paragraphs of this judgment, the object of removal of the immigrants belonging to the 1966-71 stream from the electoral rolls could only be meaningful if it was given effect through an exercise of en-masse detection and deletion conducted within a fixed timeperiod. It can be seen from paragraph 62 of this judgment that the protesting leaders in Assam at the relevant point of time were opposed to the conduct of elections to the Parliament and State Legislature unless and until the names of immigrants were dropped from the electoral rolls.

116. Another purpose which is clearly discernible from the scheme of Section 6A is the intention of the legislature to confer citizenship on the immigrants in a graded manner. To illustrate, an immigrant who crossed the border and came into Assam sometime before 01.01.1966, was conferred with automatic deemed citizenship on the date of coming into force of Section 6A, that is, 07.12.1985. On the other hand, an immigrant who crossed the border to come into Assam between 01.01.1966 and 24.03.1971 had to undergo detection, deletion and registration as specified in Section 6A(3). Further, any immigrant who came into Assam after 24.03.1971 was not considered entitled to citizenship at all. Thus, it is evident that within the first two categories, the conditions for acquisition of citizenship were more stringent for the immigrants belonging to the 1966-71 stream, while there was a complete denial of citizenship to immigrants belonging to the post-1971 stream.

117. The mechanism of graded conferment of citizenship was introduced to arrive at a common ground during the negotiations, which otherwise might have ended in a failure, due to the reluctance of the student protestors to agree to a blanket conferment of citizenship up to the cut-off date in 1971.

118. It could be said that Section 6A was a humanitarian and beneficial provision for the immigrants. However, to say that the sole object sought to be achieved by Section 6A was to confer benefits on the immigrants alone would amount to taking a reductive view of the historical context in which the provision was enacted.

119. In the aforesaid context, I may only say that if such was the sole object of the provision, then there was no need for the legislature to create two distinct categories of immigrants who were eligible for citizenship. The legislature could have simply conferred deemed citizenship on every immigrant who came into Assam before 24.03.1971 from the date of coming into force of Section 6A. The very fact that a second category of immigrants (1966-71) was statutorily created and subjected to undergo a more stringent test of procedure for the purpose of obtaining citizenship would indicate that conferment of citizenship was not the sole object of Section 6A(3). The object behind insertion of Section 6A(3) seems to have been to pacify the apprehension of the people of Assam that conferment of citizenship would not have an immediate impact on the then upcoming elections in the State of Assam due to the inclusion of a large number of immigrants. The apprehension was taken care of by the scheme of Section 6A(3) which provides for the removal of the immigrants belonging to the 1966-71 stream from the electoral rolls for a period of ten years from the date of their detection. Section 6A(3) embodies the approach of the government of the day in finding a middle ground between two competing interests prevailing at that time – on one hand, adopting a humanitarian approach towards the immigrant population in Assam; and on the other, ensuring that large scale immigration doesn’t result into the loss of culture, economy and the political rights of the people of Assam.

120. While construing the object of enactment of Section 6A, one should not lose sight of an important fact that Section 6A was enacted to give a statutory avatar to certain clauses of the Assam Accord. The provision, thus, could be said to have been multifaceted in design and purpose and representative of the interests of all the parties to the negotiation. I am of the view that the intention of the parties while signing the Accord should be kept in mind while construing the object of Section 6A of the Citizenship Act.

D. Whether the Onus of Detection of Foreigners of the 1966-71 Stream lies on the State?

121. From a perusal of Section 6A and the associated rules, it is clear that there is no provision which prescribes or provides for self-declaration/registration or voluntary detection as a foreigner within a given time period for availing the benefit of citizenship by registration under Section 6A(3).

122. The mechanism of implementation of Section 6A is set into motion with the first step of reference of a suspected foreigner to the foreigners tribunal. As soon as a reference is made to the tribunal, the onus is on the suspected person to either establish that he or she is an Indian citizen, or to establish that he or she is an immigrant eligible to avail the benefit available under Section 6A. Once the tribunal holds that the suspected person is a foreigner of the 1966-71 stream of immigrants, then again, the onus is on the said person to get registered in accordance with the Citizenship Rules, 2009 failing which his or her claim to citizenship would abate.

123. While the statute is clear that the onus completely shifts on the suspected foreigner once a reference is made to the tribunal, it appears to me as illogically unique that a person wanting to avail the benefit of citizenship by registration under Section 6A(3) has to await identification as a suspicious immigrant and subsequent reference to the tribunal. There is no plausible reason why it should be impermissible for him or her to set the mechanism of Section 6A into motion by voluntarily choosing to get detected as a foreigner of the class specified in Section 6A, or to make an application for conferment of citizenship.

124. Further, what stands out as palpably irrational in the scheme of Section 6A of the Citizenship Act is that there is no end date after which the benefit of citizenship under Section 6A(3) cannot be availed. I have dealt in later parts of this judgment as to how this militates against the very purpose of the enactment of Section 6A(3).

125. Section 6A(3) was enacted as a beneficial provision, both for the immigrants who entered into Assam before 25.03.1971 as well as for the people of Assam. It confers citizenship in a graded manner upon all such persons who meet the conditions specified therein. On the other hand, by implication, it denies the benefit of citizenship to illegal immigrants of the post-1971 stream. Additionally, it also prescribes a stricter citizenship regime for the class of immigrants who came between 01.01.1966 and 24.03.1971 including the deletion of names of such immigrants from the electoral rolls. The key intent behind inserting Section 6A and conferring citizenship only upon a limited segment of persons, that too by a retrospective cut-off date, was to ensure that apart from a very limited number of immigrants who had already come into Assam much before the enactment of Section 6A, all other illegal immigrants shall be expelled and no other benefit would be provided.

126. Citizenship provides a bouquet of rights to the person who is conferred with it. It was pointed by Shri Bholanath Sen, Member of the Lok Sabha, during the discussions on the Citizenship Amendment Bill, 1985, that: –

127. One of the ideas behind providing for a stricter citizenship regime for the immigrants belonging to the 1966-71 category was expressed by Shri Bir Bhadra Pratap Singh, Member of the Rajya Sabha, during the discussions on the Citizenship (Amendment) Bill was expressed thus: –

128. The statutory scheme of Section 6A(3), which doesn’t envisage voluntary detection at the option of the immigrant, marks a clear departure, for no intelligible reason, from the prevalent scheme noticed under the rest of the Citizenship Act. Even across other international jurisdictions, citizenship by registration or naturalisation is a process that is initiated at the behest of the person seeking to avail the benefit of citizenship by registration or naturalization. Articles 6(b) and 7 respectively of the Constitution, which deal with citizenship by registration and the permit system introduced to meet the exigencies of partition, too, place the onus of registration and obtaining permit on the person who wishes to claim such benefit. Thus, there is no discernible reason why the mechanism prescribed under Section 6A does not require, or at the very least, permit an immigrant to come forward and make an application to avail the benefit.

E. Temporal Reasonableness

129. Oxford Advanced Learner’s Dictionary defines ‘temporal’ as ‘connected with or limited by time’. The term ‘Temporal Reasonableness’, thus, describes what in our jurisprudence we say as something which was earlier reasonable is no longer so or ceases to be so with the passage of time.

130. The doctrine of temporal reasonableness is encapsulated in the Latin maxim “Cessante ratione legis cessat ipsa lex ” which means that reason is the soul of the law and when the reason of any particular law ceases, so does the law itself. Thus, when the reason for which a particular law was enacted ceases to exist due to efflux of time, then the law too must cease to exist.

131. For better analysis, it is also necessary to understand the concept of temporal triggers. A time trigger may be defined as “a point in time that initiates or terminates a legal event. A time trigger activates or terminates laws, powers, rights, and obligations.”[83] Allocative time triggers are points in time that mark the beginning or coming into force of treaties, constitutions, statutes, obligations, rights, etc. Terminative time triggers on the other hand end powers, rights, obligations and claims.

132. In the aforesaid context, it would be apposite to refer to a few decisions of this Court wherein the dynamic nature of law vis-a-vis the passage of time has been discussed. In Independent Thought v. Union of India reported in (2017) 10 SCC 800, it was observed thus by a two-Judge Bench of this Court: –

133. In Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors. reported in (2016) 7 SCC 353, a five-Judge Bench of this Court observed as follows: –

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134. In Satyawati Sharma v. Union of India, reported in (2008) 5 SCC 287, a two-Judge Bench of this Court observed as under: –

135. In Malpe Vishwanath Acharya v. State of Maharashtra reported in (1998) 2 SCC 1, a three-Judge Bench of this Court considered the validity of determination of standard rent by freezing or pegging down the rent as on 01.09.1940 or as on the date of first letting, under Sections 5(10)(b), 7, 9(2)(b) and 12(3) respectively of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. It was held that the said process of determination under the said Act, which was reasonable when the law was made, became arbitrary and unreasonable with the passage of time in view of constant escalation of prices due to inflation and corresponding rise in money value. The relevant extracts are as follows: –

136. In State of M.P. v. Bhopal Sugar Industries Ltd., reported in 1964 SCC OnLine SC 121, a five-Judge Bench of this Court was hearing a challenge to the Bhopal State Agricultural Income Tax Act, 1953 on the ground that it was applicable only within the territory of the former State of Bhopal and not in the rest of the territories of Madhya Pradesh. This Court while remanding the case to the High Court, observed that a provision introduced to achieve a temporary objective, could not be allowed to assume permanency. The relevant observations read as under: –

137. In Rattan Arya and Ors. v. State of Tamil Nadu and Ors. reported in (1986) 3 SCC 385, this Court observed thus:

138. Having discussed the concept and the position of law on temporal reasonableness, I shall now look into the submissions of the petitioners on the lack of a temporal limit to the application of Section 6A and the consequences that follow.

i. Whether there is a temporal limit on the applicability of Section 6A(3)?

139. Neither Section 6A nor the rules made thereunder prescribe any outer timelimit for the completion of detection of all such persons who belong to the 1966-71 stream and are eligible to avail the benefits of Section 6A(3). The clock only starts to tick once the detection is made by the foreigners tribunal and there is no prescription as to the period of time within which the exercise of detection is to be completed from the commencement of Section 6A.

140. The absence of any prescribed time-limit for detection of foreigners of the 1966-71 stream has two-fold adverse consequences – first, it relieves the state from the burden of effectively identifying, detecting, and deleting from the electoral rolls, in accordance with law, all immigrants of the 1966-71 stream. Secondly, it incentivises the immigrants belonging to the 1966-71 stream to continue to remain on the electoral rolls for an indefinite period and only get themselves registered under Section 6A once detected by a competent tribunal. Hence, the manner in which the provision is worded, counter-serves the very purpose of its enactment, which is the speedy and effective identification of foreigners of the 1966-71 stream, their deletion from the electoral rolls, registration with the registering authority and conferring of regular citizenship. As submitted on behalf of the petitioners, the open-ended nature of Section 6A(3) also subserves the legislative intent behind the enactment of the IEAA, 1950 and the spirit of the Assam Accord.

141. Section 6A(3) of the Citizenship Act was never meant to maintain the status quo regarding the immigrants of the 1966-71 stream. It was enacted with the object of achieving en-masse deletion of this category of immigrants from the electoral rolls subsequent to which de-jure citizenship was to be conferred on them after a cooling-off period of ten years.

142. In the absence of any statutory mandate to do so within a time limit, and there being no temporal limit to the applicability of Section 6A(3), it follows that any immigrant of the 1966-71 stream, whose name figures in the electoral rolls, would not voluntarily want to get detected as a foreigner, as upon detection, such immigrant becomes liable to having his or her name struck off from the electoral rolls, and is also required to register with the registering authority within a specified time period, failing which he or she would become liable to deportation. Even otherwise, no person belonging to the aforesaid category would, out of their own volition, get detected as a foreigner due to the inherent subjectivity that is involved in the process of scrutiny and determination of the various conditions as stipulated under Section 6A(3), i.e., date of entry into Assam, ordinarily resident, etc. However, the same degree of reluctance would not have been present on part of the immigrants of the said category if the procedure of conferment of citizenship under Section 6A(3) was instead a one-time exercise which was to be mandatorily undertaken in a time-bound manner by anyone who wished to avail the benefit of citizenship under the said provision, and any failure to abide by such time-bound procedure would have resulted into the abatement of their claim to citizenship. Seen thus, the working mechanism of Section 6A(3) goes against its avowed objective.

ii. Whether placing temporal limitations on the period of applicability is an objective implicit in the scheme of Section 6A?

143. Upon perusal of the statutory scheme under the Citizenship Act, the Foreigners Act, 1946 and other related provisions, it could be seen that the mechanism prescribed for giving effect to Section 6A is imbued with the idea of temporal limitations and in the absence of temporal limits on the period during which Section 6A is made applicable, the provision counterserves the object it was enacted with.

144. A foreigner’s tribunal enters upon adjudication on the citizenship status of a person only upon a reference received from a competent authority. Paragraph 2(1)[84] of the Foreigners (Tribunal) Order, 1964 prescribes that the Central Government may refer the question whether a person is a foreigner or not within the meaning of the Foreigners Act, 1946 to the Foreigners Tribunal. Paragraph 2(1A)[85] also empowers the registering authority constituted under Rule 19 of the Rules, 2009 to make a reference to the foreigners tribunal to ascertain whether a person of Indian origin complies with the requirements under section 6A(3) of the Citizenship Act.

145. Paragraph 3(14)[86] of the Foreigners (Tribunal) Order, 1964 which was inserted vide amendment dated 10.12.2013 prescribes that the foreigners tribunal must dispose of the case within 60 days of receipt of reference from the competent authority.

146. Rule 19(2)[87] of the Citizenship Rules, 2009 prescribes that an application for registration under Section 6A(3) has to be made within 30 days from the date of the receipt of the order of the foreigners tribunal.

147. Rule 20[88] of the Citizenship Rules, 2009 provides that the registering authority, in case any question arises as to whether any person fulfils any requirement contained in Section 6A(3), has to make a fresh reference to the foreigners tribunal within 15 days.

148. Section 6A(4)[89] of the Citizenship Act prescribes that upon detection as a foreigner, the name of the immigrant is struck off the electoral rolls for a period of 10 years, after which the person becomes entitled to have his or her name on the rolls again.

149. Section 6A(6)(a)[90] of the Citizenship Act prescribes that any person referred to under section 6A(2) who doesn’t wish to become a citizen of India has to give a declaration within sixty days of the commencement of the Citizenship Amendment Act, 1985.

150. Section 6A(6)(b)[91] provides that any person referred to under section 6A(3) who doesn’t wish to become a citizen of India has to give a declaration within sixty days of coming into force of the Citizenship Amendment Act, 1985 or from the date of detection as a foreigner, whichever is later.

151. A perusal of all the above provisions indicates that at every stage, except the first stage of detection, the mechanism for implementation of Section 6A is circumscribed by specific temporal limits. The same was taken note of by a Full Bench of the Gauhati High Court in State of Assam v. Moslem Mandal reported in 2013 SCC OnLine Gau 1:

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152. Another absurdity which is manifest in the scheme of Section 6A is that once an immigrant belonging to the 1966-71 stream is detected as a foreigner, that person has to mandatorily register within a fixed time period, otherwise the person concerned would be liable to deportation. However, a similarly situated immigrant, who is yet to be detected by the state, can continue to stay in Assam without incurring any liability of deportation.

153. Thus, from an analysis of the scheme of Section 6A and the corresponding rules along with the decision in the case of Moslem Mandal (supra), it is as clear as the noon-day sun that placing temporal limitations on the benefits available under Section 6A appears to have been one of the objects of the legislation – as otherwise the provision would go against the spirit of the Assam Accord.

154. It is pertinent to mention that even the permit system, which was brought in after the partition of the country to allow the immigrants from Pakistan to migrate to India had a temporal limit to its applicability. The said system was brought to an end on 26.12.1952 by the Influx from Pakistan (Control) Repealing Act, 1952. Seen in this context, it appears to me to be unreasonable why Section 6A of the Citizenship Act, which too was brought in to deal with a one-time extraordinary situation, should be allowed to continue for all times to come.

155. Continuance of the exercise of detection indefinitely without any temporal limitations promotes the immigrants to stay in Assam, and the immigrants residing in the neighbouring states to come into Assam[92] in the hope of never being detected as a foreigner, or of setting up a defence under Section 6A of the Citizenship Act upon identification to claim its benefit.

iii. Absurd consequences arising out of Section 6A(3) in the absence of any temporal limits to its application.

156. Shri S.W. Dhabe, Member of the Rajya Sabha, during discussion on the Citizenship (Amendment) Bill, 1985 mentioned[93]: –

157. Shri P. Babul Reddy, Member of the Rajya Sabha from Andhra Pradesh, during the aforesaid discussion on the Bill remarked thus[94]: –

158. If the statutory construction that there is no time-limit within which the exercise of detection under Section 6A(3) is to be completed is accepted as correct, then it follows that an immigrant of the 1966-71 stream, upon detection, can avail the benefit of Section 6A(3) even today by following the procedure prescribed under the rules. Thus, it follows that an immigrant who would have entered in the 1966-71 stream and who gets detected as a foreigner of the 1966-71 stream today, can register with the registering authority and his or her name will then be struck off from the electoral rolls for a period of 10 years starting today.

159. Thus, an immigrant whose name figures in the electoral roll, despite being a foreigner, continues to be eligible to vote in the elections till that person is detected as a foreigner and the name of that person is struck off the electoral roll. There being no temporal limit to the applicability of Section 6A, this situation would continue in the years to come till the detection exercise is completed. Further, there would never be any way to assess if all the immigrants eligible for availing the benefit of citizenship under Section 6A(3) have done so, despite the set of people eligible for such a benefit being distinct and determinable. The object of Section 6A(3) of the Citizenship Act was never to permit the immigrants of the 1966-71 stream to vote for an indefinite period of time without first having been deleted from the electoral rolls for a period of ten years or without having been conferred de-jure citizenship in the first place.

160. One another way of looking at the aforesaid is by the use of ‘time triggers.’ In the case of an immigrant of the pre-1966 stream, the date of coming into effect of Section 6A acts as the terminative time trigger with respect to the status of that person as an ‘illegal immigrant’ and at the same time, it also acts as the allocative time trigger with respect to that person’s status as a citizen of India. That is, on the date of commencement of the Citizenship (Amendment) Act, 1985, such a person ceases to be an illegal immigrant and becomes a citizen in the eyes of the law as per the deeming fiction provided in Section 6A sub-section (2).

161. However, in the case of an immigrant belonging to the 1966-71 stream, the situation is much more complicated. Even after the commencement of the Citizenship (Amendment) Act, 1985, an immigrant belonging to this class continues to be an illegal immigrant till the date of his or her detection as a foreigner. This date of detection then becomes the allocative trigger, conferring upon such person a right to register. Subsequent and subject to registration, the immigrant then enjoys all the rights similar to that of a citizen except voting rights for a period of ten years from the date of detection as a foreigner. On expiry of the period of ten years from the date of detection, an allocative time trigger confers the status of de-jure citizenship on that person on the day the ten-year period comes to an end.

162. The consequence of devising a complex and deceptive mechanism under Section 6A(3) by the legislature is brought to daylight by virtue of the aforesaid analysis. While the object of Section 6A(3), as discussed elaborately in the preceding paragraphs, was to make conferment of citizenship a stricter affair as compared to Section 6A(2) and to facilitate the deletion of immigrants of the 1966-71 stream from the electoral rolls through the exercise of detection, however, the shifting of onus of detection on the state coupled with the absence of any temporal limit ensures that such an immigrant continues to stay on the electoral rolls and enjoy the rights of being a de-facto citizen till the time detection takes place, if it ever takes place.

163. Another corollary of the aforesaid is that in the absence of a temporal limit to the exercise of detection, the condition – ‘has been ordinarily resident in Assam since the date of entry’ stipulated under Section 6A of the Citizenship Act, tethers the immigrants of the 1966-71 stream and incentivises them to continue to stay in Assam and not move out of Assam to any other place in or outside India, since that would potentially jeopardize their claim to citizenship under Section 6A. To illustrate, if an immigrant had entered into Assam from Bangladesh in the year 1970, but hasn’t been detected to be a foreigner till date, such a person would be incentivised to continue to stay in Assam indefinitely, pending his detection as a foreigner. I say so because an immigrant belonging to the 1966-71 stream becomes eligible for the conferment of citizenship only if, on the date of his detection as a foreigner, he is able to establish that he ‘has been ordinarily resident in Assam since the date of entry’. To further add to the absurdity of the provision, the requirement of ‘ordinarily resident’ also doesn’t have a prescribed temporal limit, meaning thereby an immigrant of the 1966-71 stream is left with no choice but to continue to reside in Assam till he or she happens to get detected as a foreigner.

164. Thus, the submission of the learned Attorney General that an immigrant once granted citizenship is free to move and settle in any part of the country doesn’t hold true for the immigrants falling under Section 6A(3). I say so because the date of conferment of citizenship is dependent on the date of ‘detection as a foreigner’ and the condition of ‘ordinarily resident in Assam’ both of which are mandatory in nature. Thus, an immigrant of the 1966-71 stream is left with no choice but to continue to reside in Assam till the detection exercise takes place.

165. In my considered opinion, the open-ended nature of Section 6A has, with the passage time, become more prone to abuse due to the advent of forged documents to establish, inter-alia, wrong date of entry into Assam, inaccurate lineage, falsified government records created by corrupt officials, dishonest corroboration of the date of entry by other relatives so as to aid illegal immigrants who are otherwise not eligible under Section 6A by virtue of having entered into Assam after 24.03.1971.

166. In a report submitted to the Indian Council for Social Science Research, 2016 titled “Cross Border Migration in Assam During 1951-2011: Process, Magnitude, and Socio-Economic Consequences” by Dr. Nandita Saikia & Dr. William Joe[95], the problem of fake documents and corrupt officials was highlighted, and it was observed that many illegal immigrants were using forged documents to secure citizenship. The relevant observations are reproduced below: –

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167. Thus, Section 6A without any end date of application, promotes further immigration into Assam – immigrants come hoping with forged documents[96] to set up the defence of belonging to pre-1966 or the 1966-71 stream upon identification as a foreigner and reference to the tribunal.

168. While the object that was sought to be achieved long back with the aid of the enactment of Section 6A of the Citizenship Act remained a distant dream, its misuse has only continued to increase with the efflux of time. I say so because with the passage of time, the government records would get damaged and perish making it increasingly difficult to cross-check the false claims that may be made by the immigrants of the post-1971 stream trying to misuse the benefits conferred exclusively to the immigrants of the pre-1971 stream.

169. It could be argued that the principle of temporal unreasonableness cannot be made applicable to a situation where the classification still remains relevant to the object sought to be achieved by the provision. However, as discussed in the foregoing paragraphs, the underlying object behind the creation of two distinct categories of immigrants under Section 6A of the Citizenship Act could have been achieved only if the exercise of detection of the immigrants of the 1966-71 stream and their deletion from the electoral rolls was conducted in an en-masse and time-bound manner. However, the same having not been achieved as intended, I find no justification to hold that the classification made between the immigrants of the pre-1966 and 1966-71 stream still remains relevant to the object of Section 6A. To allow Section 6A to continue indefinitely for all times to come would tantamount to taking a reductive and one-sided view of the historical context in which Section 6A came to be enacted, more particularly, that Section 6A sought to achieve a delicate balance between two competing interests.

F. Manifest Arbitrariness vis-a-vis Temporal Unreasonableness

170. Having discussed in detail the working mechanism and the object sought to be achieved by the enactment of Section 6A of the Citizenship Act, I shall now examine if the said section suffers from manifest arbitrariness.

171. It is settled law that even if a statutory provision fulfils the two-pronged test of reasonable classification and rational nexus with the object of enactment, it can still suffer from the vice of manifest arbitrariness and be violative of Article 14 if the provision may lead to differential application on similarly situated persons.

172. The test for manifest arbitrariness was laid down in Shayara Bano v. Union of India reported in (2017) 9 SCC 1, wherein it was held as follows:

173. In Cellular Operators Assn. of India v. Telecom Regulatory Authority of India reported in (2016) 7 SCC 703, it was held by this Court that in order to pass the scrutiny of Article 14, the provision under challenge must be shown to have been drafted as a result of intelligent care and deliberation.

174. From a perusal of the scheme of Section 6A sub-section (3), it is evident that the procedure prescribed therein leaves the possibility of differential application on similarly situated persons wide open. From any view of the matter, the way in which the provision is worded doesn’t effectively serve either the purpose of granting citizenship to the immigrants belonging to the 1966-71 category, nor does it effectively serve the object of the expeditious deletion of the same category of immigrants from the electoral rolls. On the contrary, as discussed in the foregoing paragraphs, Section 6A, in the absence of any temporal limit to its application, with the efflux of time is rather counter-serving the object with which it was enacted.

175. The mechanism doesn’t permit an immigrant of the 1966-71 stream to voluntarily seek citizenship and such an immigrant has to wait, indefinitely, for a reference to be made to the foreigners tribunal.

176. Similarly, in the absence of any specified date for availing the benefit of citizenship under Section 6A sub-section (3), the object of expeditious deletion of immigrants from the electoral roll is not met.

177. Manifest arbitrariness also encompasses the aspect of temporal unreasonableness that a statute may acquire with the efflux of time. As was held by this Court in Joseph Shine v. Union of India reported in (2019) 3 SCC 39, the arbitrariness present in the mechanism devised under Section 6A has evidently been brought to light with efflux of time, and the provision can no longer serve the purpose with which it was enacted. The very objective of having a category of immigrants who are to be deleted from the electoral rolls for a period of ten years has disappeared with more than 40 years having passed since the enactment of the provision. The relevant observations read as under: –

178. In my considered opinion, the aforesaid departure of the scheme of Section 6A from the Constitutional and statutory framework and the prevalent international practice coupled with the absence of any temporal limits on the applicability of Section 6A has the effect of rendering it manifestly arbitrary and constitutionally invalid.

179. While the test of manifest arbitrariness entails a two-prong test which requires that first, there is a reasonable classification based on an intelligible differentia; and second that such classification has a rational nexus with the object sought to be achieved by such classification. The test of temporal unreasonableness, on the other hand, would involve a further examination into whether the aforesaid two prongs have continued to remain relevant with the passage of time.

180. Thus, the test of temporal unreasonableness would require examining the provision in two different time frames – first, when the provision was enacted, and second when such provision comes to be challenged on the ground of temporal unreasonableness. Even if a provision passes the two-prong test in the first time-frame, it may still fail the test in the subsequent time-frame if the efflux of time renders either the classification, or the object sought to be achieved by such classification, or both as arbitrary and thus violative of Article 14 of the Constitution. This could be said to be the third prong in the test of manifest arbitrariness under Article 14 as envisaged by the doctrine of temporal unreasonableness.

G. Damage Caused by the Scheme of Section 6A

181. From the discussion above, it can be seen that the mechanism by which the implementation of Section 6A is to take place is riddled by two serious problems – absence of a temporal limit as to the period of application, and shifting of the onus of identification and detection of an immigrant as a foreigner on the state.

182. In my view, the absurd and faulty mechanism that has been prescribed under Section 6A of the Citizenship Act, constitutes the genesis of the controversy before us. The legislature, instead of providing for a one-time process to avail the benefits of Section 6A to all those who are eligible has instead provided a process where each immigrant of the 1966-71 category has to be first identified and then referred to the foreigners tribunal. The tribunal is then required to determine in each individual case whether the person referred is an illegal migrant, his date of entry in Assam, whether he is entitled to any benefits under Section 6A, etc.

183. The determination by the foreigners tribunal in each individual case introduces judicial-element in the process of determination of nationality of suspected persons. However, I emphasize that the infirmity of Section 6A lies not in the judicial determination of the status of each immigrant individually, but in the steps preceding such determination, that is, identifying suspected immigrants and referring them to the foreigners tribunal. The onus of referring suspected immigrants to the tribunal lying solely on the state; absence of any provision for self-declaration or registration by the immigrant; and absence of any time-limit during which the benefit of Section 6A may be availed – collectively have the effect of making the provision constitutionally invalid when subjected to the three-prong test of temporal unreasonableness as elucidated above.

184. The result of the aforesaid infirmity has been that, to this date, the benefit of Section 6A can be availed if an immigrant shows that he or she falls within Section 6A sub-sections (2) and (3). This has added another layer of complexity in the very detection process of illegal migrants, who have mingled amongst those who have legitimately availed the benefit under Section 6A.

185. Even a person who is otherwise not eligible under Section 6A can put-up a false claim that he or she is covered under Section 6A, and the foreigners tribunal would have to examine the legitimacy of the such a claim, thereby slowing down the entire process of detection and deportation in Assam.

186. We find substance in the submission of the petitioners that the stipulation of the condition ‘ordinarily resident in Assam’ created a vortex that attracted other illegal immigrants located in West Bengal or other bordering states also to come into Assam in the hope of securing citizenship, all because of the faulty mechanism coupled with poor implementation of conferring the benefit under Section 6A.

187. It is also pertinent to observe that the regime under the Citizenship Act has been made more stringent over the years by a slew of amendments. Significantly, the Citizenship (Amendment) Act, 2003 introduced the definition of an ‘illegal immigrant’. The Statement of objects and reasons accompanying the Citizenship (Amendment) Bill, 2003, reads as under: –

188. A perusal of the above would show that one of the objects of the 2003 amendment to the Citizenship Act was to exclude illegal immigrants from the benefit of citizenship. Thus, while on the one hand the legislature has gradually moved towards a regime which bars illegal immigrant from the benefit of Indian citizenship, Section 6A, on the other hand, continues to be present on the statute book endlessly, and owing to its abuse-prone and temporally unlimited mechanism, goes against the present-day statutory position and policy with regard to the illegal immigrants.

189. More than 38 years having elapsed since Section 6A came into effect, with the benefit of retrospect, we find force in the submission of the petitioners that Section 6A, which was meant to dispel and discourage incoming illegal immigrants, turned out to be a beacon for the illegal immigrants from Bangladesh to come into Assam, by taking advantage of the poor mechanism which is prone to open abuse. There can be no denying that the provision has far exceeded the time-limit within which it should have been made applicable, and has become vulnerable to misuse owing to the inherent arbitrariness, as pointed above.

190. Assam Accord was a one-time political settlement, arrived at in the specific context of widespread violence and agitation in Assam. The extraordinary conditions existing in the years 1979-85 cannot provide a permanent and perennial ground for continuation of a manifestly arbitrary provision, which is uncertain and indeterminable owing to its sui-generis mechanism.

191. I shall now refer to the decision of a three-Judge Bench of this Court in Sarbananda Sonowal (supra), by which the IMDT Act was struck down. One of the primary reasons for which the IMDT Act was struck down was that this Court was of the view that instead of achieving the avowed object of the legislation, the IMDT Act was defeating the very purpose for which it was enacted. Relevant portions of the said decision are reproduced hereinbelow: –

192. There have been various judgments of this Court wherein directions were issued for reconsideration of the impugned provision on the ground that with the passage of time, the provision had become temporally unreasonable and rather than fulfilling the object with which it was enacted, the same was proving to be counter-productive.

193. In Narottam Kishore Deb Varman v. Union of India, reported in (1964) 7 SCR 55, a five-Judge Bench of this Court was called upon to decide a batch of petitions challenging the validity of Section 87B of the Code of Civil Procedure, 1908. The said section required that before a suit could be filed against a former ruler of a Princely State, prior sanction of the Union Government had to be obtained. This Court, relying upon its previous decision, stopped short from holding the provision as unconstitutional. However, it called upon the Government to examine if the provision was to be allowed to continue for all times. It further noted that Section 87B being a result of a political settlement reached between the Government and former rulers, its continuance forever was something that the Government ought to reconsider. The relevant observations read as under:

194. In H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu Religious and Charitable Endowments Deptt., reported in (1979) 4 SCC 642, a five-Judge Bench of this Court was called upon to determine the constitutionality of applicability of the Madras Hindu Religious Charitable Endowments Act to the South Kanara district. The South Kanara district, which was formerly a part of the State of Madras, became a part of the State of Mysore as a result of the reorganisation of states on 01.11.1956 and by reason of Section 119 of the States Reorganisation Act, the Madras Hindu Religious and Charitable Endowments Act continued to apply to South Kanara notwithstanding the fact that it was no longer a part of the State of Madras. The appellants urged that the application of the Madras Act to only one district of the State of Karnataka offended Article 14. The Court held that even after passage of 23 years, no serious attempts were made to remove the inequality between the South Kanara district and other districts of the State of Karnataka. The relevant observations read as under:

195. This Court, has on many occasions, struck down provisions for having become temporally unreasonable, that is, for having become obsolete and discriminatory with the passage of time.

196. In Motor General Traders v. State of A.P., reported in (1984) 1 SCC 222, a two-Judge Bench of this Court was examining the validity of Section 32(b) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. The impugned provision exempted all buildings constructed after 26.08.1957 from the application of the said Act. This Court held that a temporary exemption having nexus with the object of the Act to promote new builders had become obsolete with the passage of time, and was acting in the form of a permanent bonanza without any rational basis. The Bench proceeded to strike down the impugned provision. The relevant observations read as under:

197. In Satyawati Sharma (supra) a two-Judge Bench of this Court was examining the constitutional validity of Section 14(1)(e) of the Delhi Rent Control Act, 1958. This Court partly read down the provision on the ground that the blanket protection from eviction given to tenants of non-residential buildings, with the passage of time, had become unreasonable and was liable to be taken away. The relevant observations read as under: –

H. Doctrine of Prospective Overruling

198. The doctrine of prospective overruling was originally developed by American jurists. This doctrine was first applied in an Indian context in I.C. Golak Nath v. State of Punjab reported in AIR 1967 Sc 1643. It was decided by this Court therein that the power of amendment under Article 368 of the Constitution did not allow the Parliament to abridge the fundamental rights contained in the Part III of the Constitution. However, while holding thus, this Court made the decision operative with prospective effect.

199. The decision was given prospective effect in recognition of the fact that from the coming into force of the Constitution upto the date of the decision in Golak Nath (supra), the Parliament had in fact exercised the power of amendment in a way which, as per the decision in Golak Nath (supra), was void. This Court observed that if retrospectivity were to be given to the decision, it would introduce chaos and unsettled conditions in the country. On the other hand, this Court also recognized that such a possibility of chaos might be preferable to the alternative of a totalitarian rule. This Court, therefore, sought to evolve a reasonable principle to meet the extraordinary situation. The reasonable principle which was evolved was the doctrine of prospective overruling.

200. The decision in Golak Nath (supra) was overruled by subsequent decision in Kesavananda Bharati v. State of Kerala reported in (1973) 4 SCC 225.

However, the observations of this Court regarding the evolution of the doctrine of prospective overruling, which hold to this day, are as follows:

xxx xxx xxx

xxx xxx xxx

201. Although the doctrine of “prospective overruling” has been drawn from American jurisprudence, yet this Court, through its decisions, has imbued it with indigenous characteristics. The parameters of the power concerned were sought to be laid down in Golak Nath (supra) itself wherein it was observed: –

202. This doctrine was also applied by this Court in the case of Synthetics and Chemicals Ltd. v. State of UP (supra). In the said case originally, this Court in State of UP v. Synthetics and Chemicals Ltd. reported in (1980) 2 SCC 441, had upheld the validity of the State legislature to impose tax on industrial alcohol.

203. Subsequently, this matter was referred to a Seven-Judge Bench, by the 2nd Synthetics Case, and this Court struck down the validity of the provisions of the said Act, permitting levy of excise duty in the form of vend fee, prospectively.

204. The significance of the prospective overruling was dealt with by a five-Judge Bench of this Court in Somaiya Organics (India) Ltd. & Anr. v. State of U.P. & Anr. (supra). This Court had elaborated upon the term “prospective overruling” as follows: –

xxx xxx xxx

205. Taking a clue from the above referred decisions, it could be said that this Court has been endowed with the power to mould the relief so as to do complete justice in a given situation, and to avoid the possibility of chaos and confusion that may be caused in the society at large. In the present case, a number of immigrants who came into the State of Assam from Bangladesh, have already been conferred with citizenship under Section 6A of the Citizenship Act. Further, as discussed, the unconstitutionality of Section 6A is attributable to the efflux of time.

206. Section 6A being manifestly arbitrary, temporally unreasonable and, demonstrably unconstitutional cannot be allowed to continue for all times to come. Hence, in my opinion it would be appropriate to declare Section 6A as unconstitutional with prospective effect. This would ensure that the benefit which has already been derived by the immigrants in Assam is not taken away, more particularly when the challenge to Section 6A has been made after a considerable delay.

VI. CONCLUSION

207. The distinction drawn between the State of Assam and other states for the grant of citizenship to immigrants was on the basis of special circumstances prevailing in Assam at the time of enactment of Section 6A. Section 6A was a statutory codification of a political settlement reached between the Government and the people of Assam and thus was not violative of the equality clause enshrined under Article 14 at the time of its enactment in 1985.

208. However, 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.

209. The prescribed mechanism also shifts the burden of detection of a foreigner solely on the State, thus, counter-serving the very purpose for which the provision was enacted, that is, the expedient detection of immigrants belonging to the 1966-71 stream, their deletion from the electoral rolls, and conferment of de-jure citizenship only upon the expiry of ten-years.

210. Justice Surya Kant has said in so many words that although Section 6A might not have been constitutionally invalid from its inception, yet the possibility of the provision incurring such invalidity anytime in future should not be ruled out. In light of the discussion in the foregoing paragraphs, I am of the clear view that Section 6A suffers from the vice of manifest arbitrariness on account of the “systematic failure of the legislative vision”, if I may put it in the very words of my learned brother.211. Justice Surya Kant has also acknowledged the fact that despite the enactment of Section 6A, the influx of illegal immigrants into the State of Assam did not abate after 1985. He has relied upon the report published by the then Governor of Assam in 1998, to underscore that there are hordes of immigrants who have illegally entered Assam and are residing there. However, the ultimate view taken by him is that such illegal immigration cannot be attributed to Section 6A which is limited in its ambit and does not by itself create unabated immigration. As discussed earlier, Section 6A owing to its inherent problems of absence of temporal limit and the sole onus of detection upon the State, has indeed resulted in the influx and continued presence of illegal immigrants into the State of Assam, to this date.

212. One another issue on which I would like to respectfully disagree with Justice Surya Kant pertains to the fundamental premise that Section 6A aligns with the fundamental purpose of Articles 6 and 7 respectively of the Constitution – that is, Section 6A also confers citizenship rights on those affected by the partition of India. However, a careful perusal of Section 6A vis-a-vis Articles 6 and 7 respectively would reveal that despite a few similarities between the two, the crucial difference lies in the fact that in Article 6, the onus of registration for a person seeking citizenship lies on that person and not on the State. Additionally, all those persons who migrated to India from Pakistan after 19.07.1948, had to make an application before the commencement of the Constitution. The permit system which was introduced as per Article 7 was also brought to an end in 1952 as discussed in the foregoing paragraphs. However, as discussed, both these conditions i.e., the onus of registration as well as the specification of a cut-off date till which such applications could have been made are absent from the very scheme of Section 6A. Seen in the context of temporal unreasonableness, this glaring absence renders the scheme of Section 6A arbitrary and as a result unconstitutional.

213. Justice Surya Kant has emphasized on the importance of distinguishing between the prescribed mechanism under the provisions of Section 6A and its actual implementation. After examining the mechanism prescribed under Section 6A, he has held that when Section 6A is read with the complimentary statutes more particularly, the Foreigners Act, 1946, Passport Act, 1967, IEAA, 1950 and the Foreigners (Tribunals Order), 1964, the same is adequate and sufficient to address the issue of illegal immigration into Assam. However, the ultimate conclusion drawn by him is that despite of there being sufficient measures, the problem of illegal immigration has persisted in Assam till this date because of the inadequacies in Section 6A and its faulty implementation. I am of the view, that the inadequate implementation of Section 6A(3) of the Act is inextricably linked to the fallacious mechanism that has been prescribed under it.

214. Justice Surya Kant in paragraph 298 of his judgment, has observed that by virtue of Article 19(1)(e), Section 6A does not compel pre-1971 immigrants to keep residing in the territory of Assam once they have obtained citizenship thereunder. While the aforesaid may be true for the immigrants belonging to the pre-1966 stream who were conferred citizenship automatically, and thus became citizens of India for all purposes from the date of commencement of Section 6A itself, the same does not hold true for the immigrants belonging to the 1966-71 category. I say so, because, in the absence of any temporal limit, within which all immigrants belonging to the 1966-71 category are to be detected, deleted and registered as citizens, the immigrants of this category are tethered to the territory of Assam, so as to satisfy the criteria of “ordinarily resident in Assam” on the date when they eventually happen to get detected.

215. Lastly, Justice Surya Kant, in paragraph 304, has observed that Section 6A when read along with the larger statutory regime surrounding citizenship and immigration, has mandated timely detection and deportation of illegal immigrants. In my view, although the mandate of timely detection and deportation of illegal immigrants was the fundamental premise on which the Assam Accord was signed, yet, this intention recorded in the Accord, was never translated statutorily, due to a faulty mechanism prescribed under Section 6A(3), either due to inadvertence or advertence of the legislature.

216. Before, I proceed to draw my final conclusion, I must refer to R.W.M. Dias’s “Jurisprudence” Fifth Edition Chapter 15. Dias says that one of the tasks in the achievement of justice is adapting to change. Just as consonance with accepted ideas is an inducement to obey, so also when these change, tensions arise between the law on the one hand, and needs and outlook on the other, and there is then an inducement to ignore the law or to disobey. Failure to use power to adapt to change is, in its own way, an abuse of power. The issue is thus not one of change or no change, but of the direction and speed of change. According to Dias, no society is static. Changes develop gradually over the years in practically every sphere brought about by evolution in environmental, economic and political circumstances, national and global, as well as in religious and moral ideas. In the words of Dias “… They may occur slowly or rapidly; they may be ephemeral as with passing fashions, or permanent. What happens is that practices evolve which influence the ways in which laws actually operate, e.g. trade practices. When the behaviour of people has moved away from the law with a sufficient degree of permanence, tensions arise with varying results. The law itself may be stretched to take account of the development, or it may be ignored until it becomes a dead letter, or it may be repealed and a new law substituted. In these ways evolution gives direction to future development.”

217. For all the foregoing reasons, I have reached to the conclusion that Section 6A of the Citizenship Act deserves to be declared invalid with prospective effect and the same is accordingly declared so.

218. I summarize my final conclusions as follows: –

219. The petitions are disposed of in the aforesaid terms.

220. Pending application(s), if any, also stand disposed of.