In Re Section 6A Of The Citizenship Act ... vs Item No.1501 Court No.1 Section Pil-W

ITEM NO.1501 COURT NO.1 SECTION PIL-W

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Writ Petition(s)(Civil) No(s).274/2009

IN RE: SECTION 6A OF THE CITIZENSHIP ACT 1955

WITH W.P.(C) No. 916/2014 (PIL-W)

W.P.(C) No. 470/2018 (X)

W.P.(C) No. 1047/2018 (X)

W.P.(C) No. 68/2016 (PIL-W)

W.P.(C) No. 876/2014 (X)

W.P.(C) No. 449/2015 (X)

W.P.(C) No. 450/2015 (X)

W.P.(C) No. 562/2012 (X)

Date : 17-10-2024 These petitions were called on for pronouncement of judgment today.

For Petitioner(s) Mr. Vijay Hansaria, Sr. Adv. Mr. Shyam Divan, Sr. Adv. Mr. Somiran Sharma, AOR Mr. Udayaditya Banerjee, Adv. Ms. Kavya Jhawar, Adv. Mr. Sudipto Sircar, Adv. Mr. Dhrubajit Saikia, Adv. Mr. Suryanusen Gupta, Adv. Ms. Anshula Laroiya, Adv. Mr. Adith Deshmukh, Adv. Mr. Arpit Jacob Varaprasad, Adv. Ms. Shristi Borthakur, Adv. Ms. Aadya Malik, Adv.

Mr. K N Choudhury, Sr. Adv. Signature Not Verified Mr. Manish Goswami, Sr. Adv. Digitally signed by Sanjay Kumar Date: 2024.10.17 Mr. Rongon Choudhury, Adv. 17:08:00 IST Reason: Mr. Fayaz, Adv.

1 Mr. Priyank Adharyu, Adv. Mr. Priyonkoo Gogoi, Adv. Mr. Rameshwar Prasad Goyal, AOR

Mr. Sunil Murarka, Adv. Mr. Partha Sil, AOR Mr. Tavish Bhushan Prasad, Adv. Ms. Sayani Bhattacharya, Adv. Mr. Srijit Datta, Adv.

Mr. Mukul Kumar, AOR Mr. Anish Roy, Adv. Mr. Girish Agarwal, Adv.

Mr. Fuzail Ahmad Ayyubi, AOR

Mr. Somesh Chandra Jha, AOR Mr. Anjani Kumar Mishra, AOR

For Respondent(s) Mr. R Venkataramani, Attorney General for India

Mr. Tushar Mehta, Solicitor General Mr. K M Nataraj, A.S.G. Mr. Kanu Agrawal, Adv.

Mrs. Shraddha Deshmukh, Adv. Ms. Rekha Pandey, Adv.

Mrs. Ruchi Kohli, Adv.

Mr. Ankur Talwar, Adv.

Mr. Shuvodeep Roy, Adv. Mrs. Diksha Rai, Adv.

Mrs. Ruchi Gour Narula, Adv. Ms. Ruchi Gaur Narula, Adv. Mrs. Sneha Kalita, Adv. Mr. Anandh Venkataramani, Adv. Mrs. Vijayalakshmi Venkataramani, Adv. Mr. Vinayak Mehrotra, Adv. Mr. Kartikay Aggarwal, Adv. Mr. Abhishek Kumar Pandy, Adv. Ms. Mansi Sood, Adv.

Mr. Gaurang Bhushan, Adv. Mr. Chitvan Singhal, Adv. Mr. Mukesh Kumar Maroria, Adv. Ms. Sonali Jain, Adv.

Mr. Abhishek Kumar Pandey, Adv. Mrs. Mrinal Elkar Mazumdar, Adv. Mr. Raman Yadav, Adv.

Mr. Anil Hooda, Adv.

Mr. Rajesh Singh Chauhan, Adv.

2 Mr. Arvind Kumar Sharma, AOR

Mr. Tushar Mehta, Solicitor General Mr. Devajit Saikia, Adv. Gen.Assam/Sr. Adv. Mr. Shuvodeep Roy, AOR Mr. Diksha Rai, Adv.

Mr. Deepayan Dutta, Adv. Mr. Saurabh Tripathi, Adv. Mr. Kanu Agrawal, Adv.

Mr. P Nayak, Adv.

Mr. Madhav Sinha, Adv.

Mr. Gaurang Bhushan, Adv. Mr. Kritagya Kait, Adv. Mr. Tanmay Mehta, Adv.

Mr. Rohit Khare, Adv.

Mr. Akshay Nain, Adv.

Mr. Tushar Mehta, Solicitor General Mr. Devajit Saikia, Sr. A.A.G. Ms. Diksha Rai, AOR Mr. Kanu Agrawal, Adv.

Mr. P. Nayak, Adv.

Mr. Madhav Sinhal, Adv. Mr. Gaurang Bhushan, Adv. Mr. Kritagya Kait, Adv. Mr. Tanmay Mehta, Adv.

Mr. Rohit Khare, Adv.

Mr. Akshay Nainn, Adv.

Mr. Deepayan Dutta, Adv. Mr. Sorabh Tripathi, Adv. Mr. Arijit Dey, Adv.

Ms. Atiga Singh, Adv.

Ms. Apurva Sachdev, Adv.

Mr. Gaurav Dhingra, AOR

Ms. Sneha Kalita, AOR

M/S. Corporate Law Group, AOR

Mr. Pradeep Misra, AOR

Mr. B. Krishna Prasad, AOR

Mr. Chanchal Kumar Ganguli, AOR

Ms. Sushma Suri, AOR

3 Mr. Debojit Borkakati, AOR

Mr. Mohit D. Ram, AOR

Mr. Sahil Tagotra, AOR Mr. Sidhant Kumar, Adv. Ms. Manyaa Chandok, Adv. Mr. Sujay Jain, Adv.

Mr. Rakesh Talukdar, Adv.

Ms. Astha Sharma, AOR Mr. Srisatya Mohanty, Adv. Ms. Anju Thomas, Adv.

Mr. Sanjeev Kaushik, Adv. Ms. Mantika Haryani, Adv. Mr. Shreyas Awasthi, Adv. Mr. Himanshu Chakravarty, Adv. Ms. Ripul Swati Kumari, Adv. Mr. Bhanu Mishra, Adv.

Ms. Muskan Surana, Adv.

Ms. G. Indira, AOR

Ms. Malvika Trivedi, Sr. Adv. Mr. Ankit Yadav, AOR Ms. Prakriti Rastogi, Adv. Ms. Sujal Gupta, Adv.

Mr. Shailendra Slaria, Adv. Ms. Shaoni Das, Adv.

Mr. T. Mahipal, AOR Mr. Fuzail Ahmad Ayyubi, AOR

Mr. Guntur Pramod Kumar, AOR Ms. Prerna Singh, Adv.

Mr. Dhruv Yadav, Adv.

Mr. Ashok Kumar Singh, AOR Mr. Sumeer Sodhi, AOR Mr. V. K. Sidharthan, AOR Mr. D. S. Mahra, AOR Mr. Gopal Singh, AOR Mr. Merusagar Samantaray, AOR Ms. Hemantika Wahi, AOR

Ms. Deepanwita Priyanka, AOR

4 Mr. Anuvrat Sharma, AOR

Mr. Manan Verma, AOR Ms. Ayushi Hatwal, Adv.

Mr. Anando Mukherjee, AOR

Mr. Saurabh Mishra, Sr. Adv. Mr. Sarad Kumar Singhania, AOR Ms. Rashmi Singhania, Adv. Mr. Yash Singhania, Adv.

Mr. C. K. Sasi, AOR Ms. Meena K Pouiose, Adv.

Mr. Manish Kumar, AOR Mr. Divyansh Mishra, Adv.

Mr. Shantanu Sagar, AOR Mr. Prabhat Ranjan Raj, Adv. Mr. Anil Kumar, Adv.

Mr. Gunjesh Ranjan, Adv. Mrs. Divya Mishra, Adv. Mr. Keshav Khandelwal, Adv. Mr. Manoneet Dwivedi, Adv.

Mr. Sunny Choudhary, AOR

Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv.

Mr. Aditya Krishna, Adv. Ms. Preet S. Phanse, Adv. Mr. Adarsh Dubey, Adv.

M/S. K J John And Co, AOR

Mr. Pukhrambam Ramesh Kumar, AOR Mr. Karun Sharma, Adv.

Ms. Anupama Ngangom, Adv.

Mr. Amit Kumar, Advocate General, Sr. Adv. Mr. Avijit Mani Tripathi, AOR Mr. T.k. Nayak, Adv.

Ms. Rekha Bakshi, Adv.

Ms. Marbiang Khongwir, Adv.

5 Mr. Sandeep Kumar Jha, AOR Mr. Shiv Mangal Sharma, A.A.G.

Mr. V. N. Raghupathy, AOR Mr. Raghavendra M. Kulkarni, Adv. Mr. Vishwanath P. Allannavar, Adv. Ms. Mythili S, Adv.

Mr. K N Balgopal, Adv. Gen Nagaland/Sr. Adv. Ms. K. Enatoli Sema, AOR Ms. Limayinla Jamir, Adv. Mr. Amit Kumar Singh, Adv. Ms. Chubalemla Chang, Adv. Mr. Prang Newmai, Adv.

Ms. Nitya Nambiar, Adv.

Ms. Swati Ghildiyal, AOR Ms. Devyani Bhatt, Adv.

Mr. Shiv Mangal Sharma, A.A.G. Mr. Milind Kumar, AOR

Mr. Ajay Pal, AOR Ms. Ranjeeta Rohatgi, AOR Mr. Kuldip Singh, AOR

Mr. Sameer Abhyankar, AOR Mr. Rahul Kumar, Adv.

Mr. Aakash Thakur, Adv. Mr. Amish Tandon, Adv.

Mrs. Ayushi Bansal, Adv. Mr. Sarthak Dora, Adv.

Mr. Aryan Srivastava, Adv. Mrs. Ria Dhawan, Adv.

Ms. Ayushi Bansal, Adv.

Mr. Amit Anand Tiwari, A.A.G. Mr. Sabarish Subramanian, AOR Ms. Devyani Gupta, Adv. Mr. Vishnu Unnikrishnan, Adv. Mr. C Kranthi Kumar, Adv. Mr. Danish Saifi, Adv.

Ms. Tanvi Anand, Adv.

Mr. Sravan Kumar Karanam, AOR Ms. Shireesh Tyagi, Adv.

6 Mr. Aniket Singh, Adv.

Mr. Abhishek Atrey, AOR Mr. Parijat Sinha, AOR Mr. Mansoor Ali, AOR

Ms. Malvika Trivedi, Sr. Adv. Mr. Ankit Yadav, AOR Ms. Prakriti Rastogi, Adv. Ms. Sujal Gupta, Adv.

Mr. Shailendra Slaria, Adv. Ms. Shaoni Das, Adv.

Mr. K N Choudhury, Sr. Adv. Mr. Manish Goswami, Sr. Adv. Mr. Rongon Choudhury, Adv. Mr. Rameshwar Prasad Goyal, AOR

Mr. Sunny Choudhary, AOR Mr. Krishna Dev Jagarlamudi, AOR Mr. Praveen Swarup, AOR

Mr. Sandeep Kumar Jha, AOR Mr. Shiv Mangal Sharma, A.A.G.

Mr. Mansoor Ali, AOR Mr. G. N. Reddy, AOR Mr. Partha Sil, AOR Mr. Abhishek, AOR Mr. Fuzail Ahmad Ayyubi, AOR

Ms. Aparna Bhat, AOR Mr. Chander Uday Singh, Sr. Adv. Ms. Aparna Bhat, Sr. Adv. Mr. Gautam Bhatia, Adv. Ms. Bidya Mohanty, Adv. Ms. Karishma Maria, Adv. Mr. Mrinmoy Dutta, Adv.

Mr. Somesh Chandra Jha, AOR Mr. Mahfooz Ahsan Nazki, AOR Mr. Mohan Pandey, AOR Mr. Mohit Chaudhary, AOR

Mr. Satish Kumar, AOR Mr. Syed Ali Ahmad, Adv. Mr. Syed Tanweer Ahmad, Adv.

7 Mr. S S Bandyopadhyay, Adv. Mr. Syed Miran Ahmad, Adv. Mr. S Kundu, Adv.

Mr. Abhaya Nath Das, Adv. Mr. B C Bhatt, Adv.

Ms. Monica Goel, Adv.

Mr. Shibashish Misra, AOR

Ms. Sneha Kalita, AOR

Mr. P V Surendranath, Sr. Adv. Mr. Biju P Raman, AOR Mr. Subhash Chandran K R, Adv. Mr. John Thomas Arakal, Adv. Ms. Krishna L R, Adv.

Mr. Sawan Kumar Shukla, Adv. Mrs. Lekha Sudhakar, Adv.

Mr. Sanand Ramakrishnan, AOR

Mr. Sanjay R Hegde, Sr. Adv. Mr. Adeel Ahmed, AOR Mr. Abdur Rehman Sikdar, Adv. Mr. Raja Chatterjee, Adv. Mr. Md Sharuk Ali, Adv.

Ms. Taqdees Fatima, Adv. Ms. Sana Parveen, Adv.

Mr. Arshad Ayyub, Adv.

Mr. Ausaf Ayyub, Adv.

Mr. Rajib Ali, Adv.

Mr. Jubair Mohammad, Adv. Mr. Saalik Islam, Adv.

Mr. Anas Tanwir, Adv.

Mr. Piyush Sachdev, Adv. Ms. Anupama Gupta, Adv. Ms. Riya Dutta, Adv.

Mr. Mohd Talha Hasan, Adv. Ms. Bintul Huda, Adv.

Mr. Ankit Tiwari, Adv.

Ms. Rashmi Singhania, AOR

Ms. Bharti Tyagi, AOR Mr. Vikash Kumar, Adv.

Mr. Rahul Pratap, AOR

8 Ms. Rashmi Nandakumar, AOR Mr. Dhawal Uniyal , AOR Mr. Fuzail Ahmad Ayyubi, AOR

Mr. Ashwini Kumar Upadhyay, Adv. Mr. Ashwani Kumar Dubey, AOR

Mr. Avijit Roy, AOR

Mr. Vivek Sharma, AOR Dr. Vijay Kumar Sharma, Adv.

Mr. Harsh Parashar, AOR M/S. Corporate Law Group, AOR

Mr. Colin Gonsalves, Sr. Adv. Mr. Ali Qambar Zaidi, Adv. Mr. Satya Mitra, AOR

Mr. Pashupathi Nath Razdan, AOR

Mr. Anjani Kumar Mishra, AOR Mrs. Hardeep Kaur Mishra, Adv. Mr. Praveen Mishra, Adv. Dr. P.N. Mishra, Adv.

Mr. Harbhajan Singh Sidhu, Adv.

1 Hon’ble Dr Justice Dhananjaya Y Chandrachud, Chief Justice of India, pronounced

the judgment on behalf of himself with the following conclusions:

“a. Articles 6 and 7 of the Constitution prescribe a cut-off

date for conferring citizenship for migrants from East

and West Pakistan at the “commencement of the

Constitution”, that is 26 January 1950. Section 6A of

the Citizenship Act confers citizenship from 1 January

1966 for those who migrated before that date. Those

9 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.

Section 6A confers citizenship from a later date to

those who are not covered by Articles 6 and 7 of the

Constitution. Thus, Section 6A is not violative of

Articles 6 and 7 of the Constitution;

b. Section 6A satisfies the two-pronged reasonable

classification test:

i. The legislative objective of Section 6A was to

balance the humanitarian needs of migrants of

Indian Origin and the impact of the migration on

the economic and cultural needs of Indian

States; and

ii. The two yardsticks employed in Section 6A, that

is migration to Assam and the cut-off date of 24

March 1971 are reasonable. Though other states

share a longer border with Bangladesh, the

impact of migration in Assam in terms of

numbers and resources is greater. Thus, the

yardstick of migration to Assam is reasonable.

The cut-off date of 25 March 1971 is reasonable

because the Pakistani Army launched Operation

10 Search light to curb the Bangladeshi nationalist

movement in East Pakistan on 26 March 1971.

Migrants before the operation were considered

migrants of the Indian partition; and

iii. Both the above yardsticks have a rational nexus

with the object of Section 6A.

c. Undocumented migrants could be registered as

citizens under Section 5(1)(a) of the Citizenship Act

before it was amended by the Citizenship

(Amendment) Act 2003 to exclude ‘illegal immigrants’.

Thus, the claim of the petitioner that Section 6A is

unconstitutional because instead of preventing

migration to Assam, it incentivizes migrants in other

states to come to Assam to secure citizenship through

Section 6A is erroneous.

d. The constitutional validity of a legislation cannot be

tested for violation of Article 355. Article 355 was

included in the Constitution as a justification for the

exercise of emergency powers by the Union over

States;

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

Constitution. Article 29(1) guarantees the right to take

steps to protect the culture, language and script of a

11 section of citizens. The petitioners have been unable

to prove that the ability of the Assamese people to

take steps to protect their culture is violated by the

provisions of Section 6A;

f. Section 6A(3) cannot be held unconstitutional on the

ground of temporal unreasonableness; and

g. Section 6A(2) cannot be held unconstitutional for not

prescribing a procedure for registration.”

2 Hon’ble Mr Justice Surya Kant pronounced the judgment on behalf of himself,

Hon’ble Mr Justice M M Sundresh and Hon’ble Mr Justice Surya Kant with the

following conclusions:

“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

12 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.

13

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:

(a) In view of the conclusion drawn in paragraph 387, it is held that Section 6A of the Citizenship Act, 1955 falls within the bounds of the Constitution and is a valid piece of legislation;

(b) As a necessary corollary thereto, (i) immigrants who entered the State of Assam prior to 1966 are deemed citizens; (ii) immigrants who entered between the cut off dates of 01.01.1966 and 25.03.1971 can seek citizenship subject to the eligibility conditions prescribed in Section 6A (3); and (iii) immigrants who entered the State of Assam on or after 25.03.1971 are not entitled to the protection conferred vide Section 6A and consequently, they are declared to be illegal immigrants. Accordingly, Section 6A has become redundant qua those immigrants who have entered the State of Assam on or after 25.03.1971;

(c) The directions issued in Sarbananda Sonowal (supra) are required to be given effect to for the purpose of deporting the illegal immigrants falling in the category of direction (b) (iii) above;

(d) The provisions of the Immigrants (Expulsion from Assam) Act, 1950 shall also be read into Section 6A and shall be effectively employed for the purpose of identification of illegal immigrants;

14

(e) The statutory machinery and Tribunals tasked with the identification and detection of illegal immigrants or foreigners in Assam are inadequate and not proportionate to the requirement of giving time-bound effect to the legislative object of Section 6A read with the Immigrants (Expulsion from Assam) Act, 1950, the Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, the Passport (Entry into India) Act, 1920 and the Passport Act, 1967; and

(f) The implementation of immigration and citizenship legislations cannot be left to the mere wish and discretion of the authorities, necessitating constant monitoring by this Court.

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.”

3 Hon’ble Mr Justice J B Pardiwala pronounced a separate judgment with the

following conclusions:

“a. Immigrants who migrated before 01.01.1966 and were

conferred deemed citizenship on the date of

commencement of Section 6A(2), subject to fulfilment

of all the conditions mentioned therein, shall remain

unaffected.

b. Immigrants who migrated between 01.01.1966 and

24.03.1971 (both inclusive) and have been granted

citizenship after following the due procedure

15 prescribed under Section 6A(3) shall remain

unaffected.

c. Immigrants who migrated between 01.01.1966 and

24.03.1971 (both inclusive) and who have been

detected as foreigners and have registered

themselves with the registering authority as per the

prescribed rules, shall be deemed to be citizens of

India for all purposes from the date of expiry of a

period of ten years from the date on which they were

detected as foreigners.

d. Immigrants who migrated between 01.01.1966 and

24.03.1971 (both inclusive) and who have been

detected as foreigners but have not registered

themselves with the registering authority within the

prescribed time limit as per the Citizenship Rules,

2009 will no longer be eligible for the benefit of

citizenship.

e. Immigrants who migrated between 01.01.1966 and

24.03.1971 (both inclusive) and whose applications

are pending for adjudication before the Foreigners

Tribunal, or who have preferred any appeal against

any order of such tribunal which is pending before any

court will continue to be governed by Section 6A(3) as

16 it stood immediately prior to the pronouncement of

this judgment, till their appeals are disposed of.

f. From the date of pronouncement of this judgment, all

immigrants in the State of Assam shall be dealt with in

accordance with the applicable laws and no benefit

under Section 6A shall be available to any such

immigrant. To be precise, if someone is apprehended

as an illegal immigrant after the pronouncement of

this judgment, Section 6A of the Citizenship Act will

have no application.”

4 In terms of the majority opinion, the writ petitions are disposed of.

5 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 in the

judgments.

6 Pending application, if any, stands disposed of.

(SANJAY KUMAR-I) (SAROJ KUMARI GAUR) ADDITIONAL REGISTRAR ASSISTANT REGISTRAR (Signed order is placed on the file)

17