Section 6A Citizenship Act Acquired Unconstitutionality By Efflux Of Time: Justice JB Pardiwala Invokes 'Temporal Unreasonableness Test' In His Dissenting Opinion

While dissenting from the Supreme Court judgment that upheld the constitutional validity of Section 6A of the Citizenship Act, 1955, Justice JB Pardiwala observed that Section 6A which grants citizenship to immigrants covered under the Assam Accord, "acquired unconstitutionality with the efflux of time".

Section 6A, introduced in 1985, allows people who entered Assam between January 1, 1966, and March 25, 1971, to register as Indian citizens. The other judges of the bench viz. Chief Justice DY Chandrachud, Justice Surya Kant, Justice MM Sundresh, and Justice Manoj Misra upheld the constitutional validity of Section 6A.

Justice Pardiwala based his dissent on three main points: the absence of a temporal limit in Section 6A, the burden placed on the State to detect and deport illegal immigrants, and the provision's inconsistency with Articles 6 and 7 of the Constitution, which deal with the rights of citizenship for those migrating to and from Pakistan. He emphasized that under Article 6, the onus of registration lies with the individual, while under Section 6A, the burden is shifted to the State.

"Section 6A has acquired unconstitutionality with the efflux of time. No temporal limit for its applicability also weighs in, and all the burden on the State to detect and deport also adds to it... It has solely contributed to the influx of illegal immigrants into Assam," Justice Pardiwala remarked.

Test of Temporal Unreasonableness

Justice Pardiwala introduced the concept of "temporal unreasonableness" in his dissent. He reasoned that while Section 6A may have been valid at the time of enactment, it has since become unreasonable due to changing circumstances and the lack of a specified time limit for its application. He said that the law has failed to achieve its objective of providing a streamlined process for the registration of immigrants and has instead contributed to long delays and confusion.

"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," Justice Pardiwala held.

Issues with Sub-Section 3 of Section 6A

Justice Pardiwala also criticized Section 6A(3), which requires immigrants who arrived between 1966 and 1971 to register as citizens only after being detected as foreigners. He said that this mechanism is "illogically unique" and contrary to the intent of the law, as no individual would voluntarily seek to be detected as a foreigner in order to secure citizenship rights.

"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," he observed.

Justice Pardiwala emphasized that Section 6A was enacted as a result of a political settlement (the Assam Accord) and that its interpretation must align with the intentions of the parties involved. He noted that citizenship was conferred in two ways under the provision: automatic citizenship for those entering before January 1, 1966, and conditional citizenship for those entering between January 1, 1966, and March 25, 1971.

He said, "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."

"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," Justice Pardiwala added.

Justice Pardiwala opined, "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. Thus, Section 6A without any end date of application, promotes further immigration into Assam – immigrants come hoping with forged documents96 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."

Additionally, he said, "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 pre1971 stream."

Cause Title: In Re Section 6A of the Citizenship Act 1955 [Neutral Citation No. 2024 INSC789]

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