The judgment of the Supreme Court in In Re: Section 6A Citizenship Act 1955 delivered yesterday by a five-judge Constitution Bench has many firsts. It is the first time that the SC has carried out an in-depth examination of the meaning of citizenship under the Constitution and the first time it has examined the content of the right to culture under Article 29 of the Constitution.
It is also the first time the intersection between the right to vote and citizenship has been examined in some detail. And, finally, it is the first time that the principle of temporal unreasonableness has been espoused in the recent past to strike down a statutory provision, albeit by a dissenting judge.
Section 6A of the Citizenship Act was introduced on December 9, 1985, and was meant to legally crystallise the understanding of the Assam Accord 1985 between the Congress government of Rajiv Gandhi and the protesting student groups of Assam. The Accord was a compromise, which sought to legalise those migrants from Bangladesh who came to Assam on or before March 25, 1971.
At the same time, partly agreeing with the demands of the protesting groups, the Accord envisaged that all those who entered Assam post the cut-off date would be treated as foreigners and deported in accordance with law. Section 6A legally entrenched both these aspects of the Accord through a deeming fiction. The case before the SC arose from a challenge by certain Assamese indigenous groups, who, somewhat belatedly, in 2009, sought to challenge that part of Section 6A which sought to grant Indian citizenship to all those who arrived in Assam on or before the cut-off date. The Court, by a majority of 4:1, repelled this challenge.
The opinion of the Court was authored by Justice Surya Kant, speaking for himself and Justices M M Sundresh and Manoj Mishra. In what is quite a beautifully written judgment, the Court begins by addressing the meaning of citizenship under the Constitution. Citizenship defines who is an insider and who is an outsider. Thus, the approach on what citizenship means under the Constitution is also determinative of the kind of country we imagine ourselves to be.
By pegging the concept of citizenship under our Constitution to the concept of fraternity, which is respect for and engagement with fellow beings, irrespective of the various differences between the groups of people that inhabit this country, the Court has quite emphatically accepted a liberal and broad-based view of the meaning of citizenship. The majority opinion, even without stating so, adopts a Tagorian worldview, and rejects an idea of citizenship based on “narrow domestic walls”. At the same time, recognising that uncontrolled illegal migration will lead to eventual loss of the very purpose of citizenship, it draws a balance by seeking action in terms of the law for those who entered Assam post the cut-off date.
One of the main grounds of the challenge before the SC was that the presence of Section 6A violates the right to conserve the culture of the indigenous people of Assam and is, therefore, unconstitutional. The majority rejects this argument by adopting a multi-cultural and pluralist interpretation of Article 29 and rejecting an interpretation that could be used to entrench cultural exclusivity. It notes that the Article aims to “conserve” the culture of any group of citizens, but does not prevent the simultaneous existence of any other culture.
The Court also notes that Article 29(1) is primarily a limited — and not absolute — right against intervention by the state with respect to cultural practices of any section of citizens. Based on this analysis, it concludes that the existence of Section 6A, insofar as it grants citizenship to those who entered Assam before the cut-off date, does not prevent the indigenous Assamese people from conserving their distinct culture. The majority opinion, in fact, concludes that it is the non-implementation of the other leg of Section 6A — which is the removal of those who migrated to Assam post the cut-off date — that is the potential cause for the grievances of the indigenous Assamese groups.
Crucially, the petitioners had also pegged their challenge to Section 6A on the violation of Article 326 of the Constitution that provides that elections to the Lok Sabha and Legislative Assemblies should take place on the basis of adult suffrage. The argument was that the accommodation of additional citizens pursuant to Section 6A diluted the right of the original inhabitants to exercise their adult franchise. Rejecting this argument, the majority held that Article 326 does not provide for any group of citizens to seek exclusion of another group from the right to vote.
The precise details of who is granted the right to vote is an exercise carried out on the basis of statutory provisions passed by Parliament and state legislatures — and not directly controlled by Article 326. In effect, Article 326 does not allow any section of the population to maintain an electoral majority by excluding others.
Justice Pardiwala, in a sharply reasoned dissent, has applied the doctrine of temporal unreasonableness to strike down Section 6A as unconstitutional. This doctrine, which has been rarely used in the Indian context, envisages that a provision that was reasonable at the time of its passage may become unreasonable with time. The dissent holds that Section 6A(3), having failed to achieve its primary objective of preventing illegal migration, has become unreasonable with time.
According to the dissent, this is because there is no sunset clause on the application of Section 6A, and the benefit of Section 6A can be claimed by anyone even today and in the future, as when (s)he is detected to be a foreigner. This makes the provision unreasonable, and he has accordingly set aside the provision with prospective effect. Chief Justice D Y Chandrachud wrestles with Justice Pardiwala on application of this doctrine to Section 6A in his separate opinion concurring with the majority. Quite apart from this case, adjudication based on temporal reasonableness adds another test for examining the validity of legal provisions.
It can possibly be applied in many different circumstances of constitutional adjudication in the future, with a real potential to enrich and deepen our constitutional law.
Overall, all the judgments, majority, minority and concurring, are an important first comment on various aspects of citizenship in India, and open up important debates and perspectives that are likely to be fleshed out, contested and expanded in future decisions on the issue of citizenship, including the constitutionality of the Citizenship Amendment Act 2019, which is pending before the SC.
The author is a Senior Advocate, Supreme Court of India. He argued before the Constitution Bench in support of constitutionality of Section 6A of the Citizenship Act, 1955. Views are personal.
