Minority verdict: Section 6A arbitrary, didn’t curb illegal immigration

Justice JB Pardiwala, who dissented while the five-judge Constitution bench upheld Section 6A of the Citizenship Act, said the provision is unconstitutional, citing its failure to curb illegal immigration into Assam.
In his separate opinion, Justice JB Pardiwala stated that Section 6A has become counter-productive to the intended purpose of restricting citizenship to select persons of Indian origin who came from Bangladesh prior to March 25, 1971.
The controversial law, enacted in 1985 as part of the Assam Accord, aimed to address the influx of immigrants from Bangladesh. However, Justice Pardiwala argued that it has instead encouraged further illegal immigration.
“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,” Justice Pardiwala wrote in his judgement.
The judge concurred with the majority view that the law’s initial purpose was constitutional. However, he contended that over time, the faulty mechanism prescribed by the law made it susceptible to abuse.
Justice Pardiwala noted that the law has inadvertently allowed migrants from Bangladesh to enter Assam via other states and claim citizenship benefits. He described Section 6A as “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”.
One of the key issues highlighted by the court was the lack of a time limit for applications under Section 6A. The dissenting judgement pointed out that even today, a person who entered India from Bangladesh between 1966 and March 25, 1971 could apply for citizenship under this scheme.
The judge expressed concern that this absence of time-bound detection and conferment of citizenship has led to a continued influx of immigrants into Assam. While Section 6A does not confer citizenship benefits to those who arrived after March 25, 1971, the court did not dismiss the possibility of illegal immigrants obtaining undue benefits through fraudulent means.
Justice Pardiwala criticised the law’s reliance on voluntary registration, stating: “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”.
The judge declared Section 6A “manifestly arbitrary, temporally unreasonable, and demonstrably unconstitutional”, striking it down with prospective effect. This decision ensures that benefits already derived by immigrants in Assam are not revoked, particularly given the considerable delay in challenging the law.
The judgement acknowledged that Section 6A was initially a statutory codification of a political settlement between the government and the people of Assam. However, it argued that the law “has acquired unconstitutionality with the efflux of time”.
Justice Pardiwala also questioned the justification for separately classifying immigrants from the pre-1966 and 1966-71 periods. He suggested that this classification was primarily intended “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 Assam due to the inclusion of a large number of immigrants”.
The judge noted that the 1983 elections in Assam were a constitutional requirement following a year of President’s Rule. Government figures revealed that between 1966 and March 24, 1971, more than 500,000 immigrants entered Assam, with 234,000 of them appearing on electoral rolls.
More recent data presented to the court in December 2023 showed that as of October that year, only 32,381 individuals had been identified as foreigners by the Foreigners Tribunal, with 17,861 of them granted citizenship.
Highlighting this disparity, Justice Pardiwala remarked, “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”.
The judge concluded by warning that the indefinite continuation of the detection process without temporal limitations encourages immigrants to remain in Assam. Moreover, it potentially motivates immigrants in neighbouring states to enter Assam “in the hope of never being detected as a foreigner”.