In Re : Section 6a of the Citizenship Act 1955 vs -

10 years after they were detected – Immigrants migrated between 01.01.1966 and 24.03.1971, who were detected as foreigners but did not register on time to lose eligibility for citizenship benefits – Immigrants whose applications and appeals pending to be governed by s.6A(3) – After the said judgment, no illegal immigrants in Assam to benefit from s.6A – Constitution of India – Arts. 6, 7, 9, 14, 21, 29, 326, or 355. [Paras 217, 218]

Ethos of s.6A, aligned with fraternity

Constitution of India – Fraternity – Preambular notion of fraternity – Meaning of ‘fraternity’ – Ethos of s.6A, if aligned with fraternity – Preambular value of fraternity, if applicable to the immigrants entering into the State of Assam under the aegis of s.6A:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Ethos underlying s.6A, align with the concept of fraternity – In the Indian constitutional context, fraternity assumes a dynamic and inclusive role, aligning with the broader goals of social justice, equality, and upliftment – 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 – Essence of fraternity, is fundamentally geared towards fostering interconnectedness among Indians and was envisaged to be a principle for uplifting marginalised sections of society – Petitioners approach to interpret fraternity in a highly restrictive manner, which allows them to choose their neighbours, cannot be accepted since it runs contrary to the very idea and ethos of fraternity envisaged by the Constituent Assembly and interpreted by this Court – Fraternity requires people of different backgrounds and social circumstances to ‘live and let live’ – 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 s.6A. [Paras 106, 114, 115, 117, 118] Part II and s.6A

Citizenship Act, 1955 – s.6A – Special provisions as to citizenship of persons covered by the Assam Accord – Constitution of India – Part II – Arts. 6, 6A, 7 and 11 – s.6A, if ultra vires the Part II – s.6A, if violative of Arts 6, 7 and 11 – Parliament, if had the power to enact s.6A – s.6A, if contradicts s. 5 of the Citizenship Act, which requires every citizen to take an oath of allegiance – s.6A enabling dual citizenship, if unconstitutional for violating Art. 9 – Parliament, if had the competence to specify different conditions u/Art. 11. Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) s.6A aligns with the fundamental purpose of Arts. 6 and 7, which was to extend citizenship rights to those affected by the country’s partition and is not contrary to them – Art.

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, are also present in s.6A(3) – While s.6A(2) grants deemed citizenship without these conditions, the competence of Parliament to prescribe different conditions is well embedded in Art. 11 – Art.7 prohibits citizenship to people who remigrated to India, this is only a sub-class of people who have been granted citizenship by s.6A – Since s.6A grants citizenship even to people who migrated for the first time, the class of re-migrants is severable from this provision – Art. 11 confers overriding powers upon the Parliament to make laws even when they are against other provisions of Part II and that it grants the Parliament the power to make ‘any’ provision regarding citizenship and that this authority is not restricted by the provisions of Part II – Concept of dual citizenship means one has citizenship of two countries simultaneously – In India, such citizenship is restricted by Art. 9, and s. 9 of the Citizenship Act, and operate in different time spheres and in different fields – Even if it is assumed that s.6A grants dual citizenship, it does not run counter to Art. 9 which restricts a person possessing foreign citizenship from acquiring citizenship u/Arts. 5, 6, and 8 – However, s.6A does not grant citizenship under these provisions and is rather a separate method enacted by Parliament by virtue of its power u/Art.11 – Conflict between Art. 9 and s.6A, thus, does not arise at all – Further, s.6A also does not conflict with s. 9 because s.6A does not override the scheme of s. 9 and must be read complementarily thereto – However, s.6A, presumes the renunciation of previous citizenship – Furthermore, explicit lack of an oath of allegiance before the conferral of citizenship by s.6A does not absolve the immigrants covered under this provision from following the laws of the country, just as any other citizen of India – s.6A cannot be run down on the premise that it does not mandate an oath of allegiance. [Paras 132, 134, 135, 137, 141, 142, 144-146, 148, 149, 158, 159] – Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (Concurring) s.6A not violative of Arts. 6 and 7, which prescribe cut-off date for conferring citizenship for migrants from East and West Pakistan at the commencement of the Constitution-26.01.1950 – s.6A confers citizenship from 01.01.1966 for those who migrated before that date – Those who migrated between 01.01.1966 and 24.03.1971, are conferred citizenship upon the completion of ten years from the date of detection as a foreigner – s.6A confers citizenship from a later date to those who are not covered by Arts. 6 and 7, thus, does not have the effect of amending Arts. 6 and 7 – Art. 11 is not a non-obstante clause – Legislative competence of Parliament to enact laws related to citizenship is traceable to Entry 17 List I and not Art. 11 – Provisions in Part II do not impact or limit the legislative competence of Parliament. [Paras 38, 42, 125] – Held: (per Pardiwala, J.) (Dissenting): s.6A is not similar in form and identical in spirit with Arts. 6 and 7 – Perusal of s.6A vis-à-vis Arts

6 and 7 respectively would reveal that despite a few similarities between the two, the crucial difference lies in the fact that in Art. 6, the onus of registration for a person seeking citizenship lies on that person and not on the State – All those persons who migrated to India from Pakistan after 19.07.1948, had to make an application before the commencement of the Constitution – Permit system which was introduced as per Art. 7 was also brought to an end in 1952 – Both these conditions-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 s.6A – This glaring absence renders the scheme of s.6A arbitrary and as a result unconstitutional. [Para 212]

s.6A vis-à-vis Art. 14

Citizenship Act, 1955 – s.6A – Special provisions as to citizenship of persons covered by the Assam Accord – Constitution of India – Art.14 – s.6A vis-à-vis Art. 14 – s.6A, if creates an unreasonable classification which violates Art.14 – Plea that s.6A falls foul of Art.14 as it treats equals unequally; and that the selective application of s.6A solely to the State of Assam exhibits hostility against it in comparison to other states:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Since s.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-à-vis other States – s.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, s.6A’s objective did not extend to allowing such citizenship in these other States, thus, classification between the State of Assam and other States had a direct nexus with the object of the statute and classification was not ex-facie arbitrary – Striking down s.6A on the grounds of non-inclusion only of West Bengal would amount to allowing an under-inclusivity challenge in disguise, which, is not generally permitted – Thus, classification u/s.6A, not violative of Art.14 simply because it is applicable to the State of Assam alone – Thus, s.6A not ultra vires Art. 14. [Paras 189, 198, 203-205] – Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (Concurring) Undocumented migrants could be registered as citizens u/s.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 s.6A is unconstitutional because instead of preventing migration to Assam, it incentivizes migrants in other states to come to Assam to secure citizenship through s.6A, is erroneous – s.6A confers citizenship to migrants from Bangladesh to Assam before 25 March 1971 – s.6A satisfies the two-pronged reasonable classification test - Legislative objective of s.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 – Two yardsticks employed in s.6A-migration to Assam and 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 – Cut-off date of 25 March 1971 is reasonable because the Pakistani Army launched Operation Search light to curb the Bangladeshi nationalist movement in East Pakistan on 26 March 1971 – Migrants before the operation were considered migrants of Indian partition – Both the yardsticks have a rational nexus with the object of s.6A – Also s.6A is neither under-inclusive nor over-inclusive. [Paras 75, 125]

Constitution of India – Art. 14 – Right to equality – Reasonableness of classification – Yardsticks to check the reasonableness of classification – Qualifications regarding the yardsticks:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Art. 14 requires the legislature to treat equals equally, but it also allows for differential treatment if the characteristics of the classes differ – Art. 14 permits the legislature to classify individuals into different groups and apply distinct norms accordingly, and such classification must be reasonable – Yardsticks to check the reasonableness of classification is that the classification should not be based on arbitrary criteria and must instead be based on a logic which distinguishes individuals with similar characteristics – Thus, 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 – Qualifications regarding the yardsticks is that 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, and 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. [Paras 168-170, 177, 179, 180] – Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (Concurring) Classification is constitutionally permissible, when two prong test that there must be an intelligible differentia between those forming a group and those left out; and the differentia must have a reasonable nexus with the object sought to be achieved, is satisfied – Court now, within the traditional two prong test has advocated for a more substantial inquiry that subsumes the following prongs which is the objective and the means – Determination of the yardstick for classification will help in the assessment of whether a provision is under-inclusive or over-inclusive – Yardstick must have a nexus with the object and must be in consonance with constitutional principles. [Paras 59, 68(c)]

Citizenship Act, 1955 – s.6A – Over-inclusiveness and under-inclusiveness – Determination – s.6A, under-inclusive or over-inclusive :

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Classification u/s.6A, not violative of Art. 14 simply because it is applicable to the State of Assam alone – In adjudicating the validity of a statute, the concept of under-inclusiveness arises when classification within the law fails to encompass all individuals similarly situated with respect to the law’s intended purpose – Even if there are States that could share similar characteristics with Assam, 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, unique political situation created in Assam by the influx of immigrants, 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 s.6A unconstitutional – Striking down s.6A on the grounds of non-inclusion only of West Bengal would amount to allowing an under-inclusivity challenge in disguise, which, is not generally permitted. [Paras 180, 203, 204] – Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (Concurring) s.6A is neither under-inclusive nor over-inclusive – 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 – Determination cannot be made with reference to the objective without reference to the yardstick – Doing so would limit the ability of the Legislature to identify the degrees of harm – Yardstick can be challenged where another yardstick affects or is related to the objective in a comparable manner – 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 – Provision would be over-inclusive only when those who are not similarly situated with respect to these two parameters are included. [Paras 75, 76] – Held: (per Pardiwala, J.) (Concurring) s.6A cannot be said to be violative of Art. 14 for being under-inclusive – 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 s.6A – s.6A was a statutory codification of a political settlement reached between the Government and the people of Assam and thus, not violative of the equality clause enshrined u/Art.14 at the time of its enactment in 1985. [Paras 15, 207] Constitution of India – Art. 14 – Writ petition challenging constitutionality of s.6A – Maintainability u/Art. 14: Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Art. 14 indicates that it confers individuals with equality before the law and is not restricted to mere equality for the benefits provided under law – Petitioner’s case that s.6A has singled out the State of Assam alone vis-à-vis other Indian States situated alongside the Bangladesh border and has curtailed the rights of only its original inhabitants – Petitioners’ assertion founded upon Art. 14 cannot be invalidated at a preliminary stage merely because they are seeking equality in regard to a restriction as opposed to a benefit – Thus, the objection regarding the maintainability of the petitioners’ claim u/Art. 14 rejected. [Paras 163, 164, 166]

s.6A, if manifestly arbitrary

Citizenship Act, 1955 – s.6A – Special provisions as to citizenship of persons covered by the Assam Accord – Constitution of India – Art. 14 – Manifest Arbitrariness – s.6A, if manifestly arbitrary – Plea that there is no rationale for the cut-off dates-01.01.1966 and 25.03.1971, thus, manifestly arbitrary; that the process envisaged u/s.6A and the Citizenship Rules, 2009 for the migrants unreasonable and suffers from the vice of ‘manifest arbitrariness’; that s.6A offends Part II of the Constitution; and that the term ‘ordinarily resident’ in s.6A undefined and vague:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) s.6A does not suffer from manifest arbitrariness because there is application of mind behind the incorporation of the cut-off dates; the process u/s.6A is not arbitrary; s.6A does not violate Part II of the Constitution; and the term ‘ordinary residence’ is not vague enough to be void – Cutoff dates in s.6A not incorporated in a vacuous manner but were result of considerable deliberation and discussion, and also backed by well-considered rationale which does not militates against any constitutional values or the concept of constitutional morality – Instead, s.6A acknowledged the political and social realities of that period along with the impracticability of reversing the changes that had occurred – There are legibly delineated conditions and reasonable process envisaged u/s.6A and the Citizenship Rules, 2009 for migrants who came before 01.01.1966, as well as those who came on or after 01.01.1966 and before 25.03.1971 – s.6A conferred citizenship only upon certain immigrants who met certain specified conditions up to a particular cut-off date – 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. [Paras 232, 234, 238, 243, 245, 273] – Held: (per Pardiwala, J.) (Dissenting) s.6A suffers from the vice of manifest arbitrariness on account of the “systematic failure of the legislative vision – s.6A has acquired unconstitutionality subsequent to its enactment in 1985 by efflux of time and has thus become violative of Art. 14 for being temporally unreasonable – Efflux of time has brought to light the element of manifest arbitrariness in the scheme of s.6A(3) which fails to provide a temporal limit to its applicability. [Paras 15, 208, 210]

Constitution of India – Art. 14 – Manifest Arbitrariness – Relation between Art. 14 and arbitrariness – Constituents of manifest arbitrariness – Facets of the test of manifest arbitrariness – Extent of review under manifest arbitrariness – Elucidated. (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) [Paras 206-226] – (per Dr Dhananjaya Y Chandrachud, CJI.) (Concurring) [Para 59] – (per Pardiwala, J.) (Dissenting) [Paras 171, 177, 179, 180]

Vagueness in law

Citizenship Act 1955 – s.6A – Term ‘ordinarily resident’ in s.6A, if vague – s.6A, if void for being vague : Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Term ‘ordinarily residence’ is not vague enough to be void. [Paras 267-273]

Words and phrases – Vagueness in law – Meaning and explanation – Test for void-for-vagueness – Extent of review for the test of ‘void for vagueness’ –

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Vagueness is an inherent feature of language – 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 – Most standards in law have some degree of open texture, and inevitably harbor some vagueness or multiple meanings – 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 – Vagueness needs to be viewed from the perspective of the authorities applying the impugned law; and the persons being regulated by the impugned law – Statute or its provision can be struck down for vagueness – 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. [Paras 249, 251, 255, 263, 264] Citizenship Act, 1955 – s.6A – Phrase ‘ordinary resident in Assam’ under – Meaning – Discussed. (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) [Paras 268-273]

s.6A vis-à-vis Art. 29

Citizenship Act, 1955 – s.6A – Special provisions as to citizenship of persons covered by the Assam Accord – Constitution of India – Art. 29 – s.6A vis-à-vis Art. 29 – s.6A, if violative of the rights provided to 'indigenous' communities u/Art. 29:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) s.6A cannot be held to be violative of Art. 29 – Petitioners’ failed to show either an actionable impact on Assamese culture, or trace the cause of it to s.6A – On the contrary, s.6A mandates timely detection and deportation of illegal immigrants, a large portion of whom entered Assam post-1971 – It is the non-implementation of the statutory regime which is the cause of the petitioners’ concerns; their attack on the constitutionality of s.6A is misplaced – Also, s.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 Art. 19(1)(e) rights like any other citizen of India. [Paras 298, 304] – Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (Concurring) s.6A does not violate Art. 29(1) – Cultural and linguistic interests of the citizens of Assam are protected by constitutional and statutory provisions – Mere presence of different ethnic groups in a State not sufficient to infringe the right guaranteed by Art. 29(1) – Also the petitioners are unable to prove that the ability of the Assamese people to take steps to protect their culture, violated by the provisions of s.6A. [Paras 100-102, 125] – Held (per Pardiwala, J.) (Dissenting) By virtue of Art. 19(1)(e), s.6A does not compel pre-1971 immigrants to keep residing in the territory of Assam once they have obtained citizenship thereunder, said 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 s.6A itself, the same does not hold true for the immigrants belonging to the 1966-71 category – 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. [Para 214] Substance of Art. 29(1)

Constitution of India – Art. 29(1) – Protection of interest of minorities – Substance of Art. 29(1):

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Rights conferred by Art. 29(1) require that the State not to 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 – Right u/Art.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. [Para 295]

Art. 21 and s.6A

Citizenship Act, 1955 – s.6A – Special provisions as to citizenship of persons covered by the Assam Accord – Constitution of India – Art. 21 – s.6A, if ultra vires Art. 21 – Plea that s.6A infringes upon the rights of the ‘indigenous’ Assamese community; that immigration led to the marginalization and disruption of their socio-economic aspirations; relying on Art.1 of ICCPR, their right of self-governance is being violated by s.6A; and inclusion of unidentified migrant population burdens country’s natural resources, hindering sustainable development:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) s.6A non-violative of Art. 21 – Petitioners not able to establish both a deleterious effect of s.6A on their indigenous communities as well as trace the cause of such effect to s.6A – As regards plea of self-governance, perceived right u/Art.1 of the ICCPR not enforceable through writ jurisdiction – More so, India’s explicit reservation is against its application in India, and it generally is applicable only to people under foreign domination – Assertion that immigration has impacted the self-governance of the original inhabitants of Assam, cannot be accepted – Furthermore, petitioners have not demonstrated how s.6A affects their right to govern themselves democratically – Mere fact that sub-class of immigrants whose status has been legitimised by s.6A also has access to these resources does not automatically imply a disruption of ecological balance or violation of the original inhabitants’ rights to resource usage – This conflates the idea of “unfair usage” with “more usage”- premise that cannot be accepted – Nation can accommodate immigrants and refugees, while simultaneously prioritizing sustainable development and equitable allocation of resources. [Paras 308-321]

Aim of Art. 326

Constitution of India – Art. 326 – Aim and objective of Art. 326: Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Objective of Art. 326 is to enfranchise people as opposed to disenfranchising them – Evident purpose of its inclusion was to bestow upon every individual citizen the right to exercise their vote and choose their elected representatives. [Para 335] Right of exclusion and Art. 326

Constitution of India – Art. 326 – Right of exclusion – Right u/Art. 326, if can be invoked to exclude certain individuals – s.6A, if violates the political rights of Indian citizens in Assam u/Art.326:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Art. 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 – It cannot be said that the influx of immigrants in the State of Assam has affected the right of the Assamese people to vote – Once deemed citizens by operation of s.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 – There has been no violation of the right of the petitioners u/Art. 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 – Citizenship Act, 1955 – s.6A. [Paras 341-344]

Elections – Adult suffrage – Background and evolution of – Stated. [Paras 325-330]

s.6A vis-à-vis Art. 355

Citizenship Act, 1955 – s.6A – Special provisions as to citizenship of persons covered by the Assam Accord – Constitution of India – Art. 355 – s.6A vis-a-vis Art. 355 – Operation of s.6A, if causes ‘external aggression’ and ‘internal disturbance’, culminating in the invocation of Art. 355: Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) s.6A not contrary to Art. 355 – s.6A is limited in its ambit and does not by itself create unabated migration or legitimize its continuance – In fact, s.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 – Migrants also need to satisfy certain conditions for invoking s.6A, apart from being persons of Indian origin and ordinary residents in India – s.6A addresses controlled and regulated form of immigration that would fall short of ‘external aggression’ – Migration legitimized by s.6A also does not constitute internal disturbance – s.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 – Thus, s.6A does not cause ‘internal disturbance’. [Paras 364-367] – Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (Concurring) Constitutional validity of a legislation cannot be tested for violation of Art. 355 – Art.355 was included in the Constitution as a justification for the exercise of emergency powers by the Union over States – Art. 355 as an independent ground for judicial review of legislative action is beyond the scope of the provision – An interpretation that a legislative enactment can be challenged for contravention of Art.

355 would lead to disastrous consequences – Reading the duty in Art. 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 Constitution and would subjugate the constitutional status of States. [Paras 89, 90, 125]

Sarbananda Sonowal’s case

Citizenship – Illegal immigrants – Sarbananda Sonowal v. Union of India’s case on detection and deportation of illegal immigrants – Explanation:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Holding in Sarbananda Sonowal’s case that the term aggression in Art. 355 is of a wide import and can include unabated migration if it poses a threat to the security of the state, is concurred with – Thus, 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. [Paras 356-361]

Constitution of India – Art. 355 – Intention behind the inclusion of Art. 355 – Explained. [Paras 351-355] (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Citizenship Act vis-à-vis the IEAA

Citizenship Act, 1955 – s.6A – Special provisions as to citizenship of persons covered by the Assam Accord – Citizenship Act vis-à-vis the Immigrants (Expulsion from Assam Act), 1950-IEAA – IEAA, if applicable to the immigrants in Assam, to the exclusion of the Foreigners Act, 1946 – IEAA, if in conflict with the intent and aim of s.6A – Harmonious interpretation of two legislations:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) s.6A is not in conflict with a differently situated statute-IEAA – Instead, IEAA and s.6A can be read harmoniously along with other statutes – IEAA and Foreigners Act, 1946, seek to regulate the residence and departure of foreigners in India – To that extent, no conflict between the Statutes and both of them supplement and complement each other within the framework of s.6A – s.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, no reason as to why such statutory detection shall also not be given effect to, for the purposes of deportation – Provisions of IEAA shall also be read into s.6A and be applied along with the Foreigners Act, 1946 for the purpose of detection and deportation of foreigners – Immigrants (Expulsion from Assam Act), 1950 – Foreigners Act, 1946. [Paras 376-382] Interface with International Law

Citizenship Act, 1955 – s.6A – Special provisions as to citizenship of persons covered by the Assam Accord – s.6A, if violative of international laws – Plea that since s.6A impacts the culture of original inhabitants, thus, violates Art. 27 of the ICCPR:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Art. 27 of the ICCPR restricts intervention in one’s culture – s.6A per se does not intervene in culture of Assamese people – Furthermore International law cannot trump domestic law – Thus, s.6A cannot be assailed on the ground of the perceived violation of Art. 27 of the ICCPR as well – Constitution of India – Art. 29 – International Covenant on Civil and Political Rights. [Para 386]

Temporal Unreasonableness

Citizenship Act, 1955 – s.6A(3) – Temporal Unreasonableness – Absence of temporal limit on the applicability of s.6A(3), if renders the said provision manifestly arbitrary and thus violative of Art. 14 – Efflux of time, if has rendered s.6A temporally unreasonable and thus liable to be struck down in consequence of violation of Art. 14 – Placing temporal limitations on the period of applicability, if an objective implicit in the scheme of s.6A – s.6A, if suffers from manifest arbitrariness:

Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (Concurring) Principle of temporal unreasonableness cannot be applied to a situation where the classification is still relevant to the objective of the provision – 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. [Para 120] – Held: (per Pardiwala, J.) (Dissenting) Absence of any temporal limits on the applicability of s.6A has the effect of rendering it manifestly arbitrary and constitutionally invalid – 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 u/s.6A(3), either due to inadvertence or advertence of the legislature – s.6A has acquired unconstitutionality with the efflux of time – Efflux of time has brought to light the element of manifest arbitrariness in the scheme of s.6A(3) which fails to provide a temporal limit to its applicability – Neither s.6A nor the rules made thereunder prescribe any outer time-limit for the completion of detection of all such persons who belong to the 1966-71 stream and are eligible to avail the benefits of s.6A (3) – Absence of any prescribed time-limit for detection of foreigners of the 1966-71 stream has two-fold adverse consequences-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, and 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 u/s.6A once detected by a competent tribunal – Thus, 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 – Working mechanism of s.6A(3) goes against its avowed objective – Mechanism prescribed for giving effect to s.6A is imbued with the idea of temporal limitations and in the absence of temporal limits on the period during which s.6A is made applicable, the provision counter serves the object it was enacted with – To allow s.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 s.6A came to be enacted, more particularly, that s.6A sought to achieve a delicate balance between two competing interests. [Paras 139, 140, 142, 143, 178, 208, 213, 215]

Constitution of India – Art. 14 – Manifest arbitrariness vis-a-vis temporal unreasonableness – Explanation: Held: (per Pardiwala, J.) (Dissenting) 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 Art. 14 if the provision may lead to differential application on similarly situated persons – Manifest arbitrariness also encompasses the aspect of temporal unreasonableness that a statute may acquire with the efflux of time – 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 – Test of temporal unreasonableness, on the other hand, would involve a further examination into whether the said two prongs have continued to remain relevant with the passage of time – 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 Art. 14 – This could be said to be the third prong in the test of manifest arbitrariness u/Art. 14 as envisaged by the doctrine of temporal unreasonableness. [Paras 171, 177, 179, 180] Words and phrases – Term temporal Unreasonableness – Meaning of. (per Pardiwala, J.) [Paras 129-130] Doctrines/Principles – Doctrine of temporal Unreasonableness – Meaning. (per Pardiwala, J.) [Para 130]

Scope of Judicial Review u/Art. 14

Judicial Review – Scope of, u/Art. 14 – Grounds of unreasonable classification and arbitrariness – Two-prong test – Scope of judicial review of under-inclusive provisions – Elucidated. (per Dr Dhananjaya Y Chandrachud, CJI.) [Paras 58-68] Limits to judicial review

Judicial review – Concept of – Limits to judicial review – Judicial review of government policies – Validity of s.6A, hovering around foreign policy, if excluded from the purview of judicial review:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) 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 – Focus of judicial scrutiny is limited to legality of the policy, excluding any evaluation of its wisdom or soundness – 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 – Court can check the constitutional validity of a policy, particularly so when it is elevated as an act of the Legislature – Challenge as regards the validity of s.6A, cannot be dismissed at the threshold, on the ground of judicial review – Citizenship Act, 1955 – s.6A. [Paras 53-55]– (per Pardiwala, J.) (Concurring) [Para 8] Applicability of doctrine of laches

Doctrines/Principles – Doctrine of laches – Applicability, to writ petitions raising substantial questions – Writ petitions as regards constitutionality of s.6A raising significant public policy issues that involve ramifications for the original inhabitants of Assam, the rights of immigrants, and the security of the country – Writ petitions challenging the provisions introduced in 1985, filed after 27 years – Maintainability: Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) While there has been a considerable delay in filing the instant writ petitions, the doctrine of laches cannot be applied strictly to disbar the petitioner’s claim at the threshold since the instant proceedings raise substantial questions that affect the public at large and the constitutional validity of a statutory provision – If decided otherwise, it would be creating an artificial deadline for important constitutional issues giving rise to an unfair principle of law in the realm of constitutional adjudication – Citizenship Act, 1955 – s.6A [Paras 75-76] – (per Pardiwala, J.) (Concurring) [Para 8]

Limitation period for writs

Constitution of India – Art. 32 – Writs under – Limitation period – Applicability of doctrine of laches:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Limitation Act, 1963, as also Supreme Court Rules, 2013 do not specify the limitation period for filing a writ – Though period is not specified, writ petition filed belatedly after a considerable delay is barred by the operation of the doctrine of laches – Doctrine of laches is not an inviolable legal rule but a rule of practice that must be supplemented with sound exercise of judicial discretion – Doctrine of delay and laches is not to be ipso facto excluded where a breach of fundamental rights is alleged – Doctrine is not applicable when the claim affects the public at large as also in matters where the vires of a statute are challenged vis-à-vis the Constitution, else, 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 – Limitation Act, 1963 – Supreme Court Rules, 2013. [Paras 59, 60, 63-67]

Legislative objective of s.6A

Citizenship Act, 1955 – s.6A – Legislative objective of s.6A: Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (Concurring) Preamble to Citizenship (Amendment) Act 1985 by which s.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 – Provisions of s.6A are traceable to the Assam Accord – s.6A was included with the objective of reducing the influx of migrants to India and dealing with those who had already migrated – Assam Accord was a political solution to the issue of growing migration from Bangladesh to Assam and s.6A was a legislative solution – s.6A must not be read detached from the previous legislation enacted by Parliament – s.6A is the legislation that balances the humanitarian needs of migrants of Indian Origin and the impact of such migration on economic and cultural needs of the Indian States. [Paras 69, 71]

Scheme and mechanism of s.6A

Citizenship Act, 1955 – s.6A – Scheme and mechanism of s.6A – Stated. (per Pardiwala, J.) [Paras 91-102] Legislative competence to enact s.6A

Citizenship Act, 1955 – s.6A – Legislative competence to enact s.6A:

Held: (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) Art. 11 gives the Parliament broad powers to enact laws on citizenship, notwithstanding any inconsistencies with any other provision in Part II of the Constitution – It grants the Parliament the power to make ‘any’ provision regarding citizenship – Thus, 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. [Para 140-142] – (per Pardiwala, J.) (Concurring) [Para 11, 15] Object sought to be achieved by the prescription of two separate cut-off dates

Citizenship Act, 1955 – s.6A – Special provisions as to citizenship of persons covered by the Assam Accord – Object sought to be achieved by the prescription of two separate cut-off dates-01.01.1966 and 24.03.1971:

Held: (per Pardiwala, J.) (Dissenting) s.6A was enacted to give statutory effect to the political settlement arrived at in the form of Assam Accord – Object sought to be achieved by the prescription of two separate cut-off dates was adopting a humanitarian approach towards the immigrant population in Assam; and on the other, ensuring that large scale immigration does not result into the loss of culture, economy and the political rights of the people of Assam – 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 – Intention of the legislature was to confer citizenship on the immigrants in a graded manner – To say that the sole object sought to be achieved by s.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. [Paras 107-120]

Onus of detection of foreigners of the 1966-71 stream lies on the State

Citizenship Act, 1955 – s.6A – Special provisions as to citizenship of persons covered by the Assam Accord – Onus of detection of foreigners of the 1966-71 stream, if lies on the State:

Held: (per Pardiwala, J.) (Dissenting) 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 u/s.6A (3) – Mechanism of implementation of s.6A is set into motion with the first step of reference of a suspected foreigner to the foreigner’s 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 u/s.6A – It appears as illogically unique that a person wanting to avail the benefit of citizenship by registration u/s.6A(3) has to await identification as a suspicious immigrant and subsequent reference to the tribunal – No plausible reason why it should be impermissible for him or her to set the mechanism of s.6A into motion by voluntarily choosing to get detected as a foreigner of the class specified in s.6A, or to make an application for conferment of citizenship – Statutory scheme of s.6A(3), which does not 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 – Thus, there is no discernible reason why the mechanism prescribed u/s.6A does not require, or at the very least, permit an immigrant to come forward and make an application to avail the benefit. [121-128] Damage caused by the scheme of s.6A

Citizenship Act, 1955 – s.6A – Special provisions as to citizenship of persons covered by the Assam Accord – Damage caused by the scheme of s.6A:

Held: (per Pardiwala, J.) (Dissenting) Absurd and faulty mechanism has been prescribed u/s.6A – s.6A owing to its inherent problems of absence of 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, has indeed resulted in the influx and continued presence of illegal immigrants into the State of Assam, to this date – Legislature instead of providing for a one-time process to avail the benefits of s.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 foreigner’s tribunal – 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 u/s.6A – More than 38 years having elapsed since s.6A came into effect, with the benefit of retrospect, s.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 – 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 – Assam Accord was a one-time political settlement, arrived at in the specific context of widespread violence and agitation in Assam – 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. [Paras 182, 189, 190, 195, 211] Doctrine of Prospective Overruling

Doctrines/Principles – Doctrine of prospective overruling – Application of – s.6A, if unconstitutional with prospective effect: Held: (per Pardiwala, J.) (Dissenting) : 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 instant case, a number of immigrants who came into the State of Assam from Bangladesh, have already been conferred with citizenship u/s.6A – Unconstitutionality of s.6A is attributable to the efflux of time – s.6A being manifestly arbitrary, temporally unreasonable and, demonstrably unconstitutional cannot be allowed to continue for all times to come – Thus, s.6A declared 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 s.6A has been made after a considerable delay. [Paras 205, 206]

Assam accord

Assam accord – Salient features of the Assam Accord – Stated. (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) [Paras 90, 187-189, 200] – (per Dr Dhananjaya Y Chandrachud, CJI.) [Paras 69-71] – (per Pardiwala, J.) [Paras 73-79]

Citizenship

Citizenship – Meaning of – Modes of acquiring citizenship – Indian vis-à-vis foreign jurisdiction – Elucidated. (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) [Paras 3-16]

Citizenship – Legal regime under the Citizenship Act, 1955 governing migrants – Legal regime governing migrants from East and West Pakistan to Assam – Discussed. (per Dr Dhananjaya Y Chandrachud, CJI.) (Concurring) [Paras 45-57] Constitution of India – Arts. 5 to 11 – Citizenship under – Legislative scheme on citizenship – Elucidated. (per Surya Kant, J.) (for himself and for M.M. Sundresh and Manoj Misra, JJ.) [Paras 3-16] (per Dr Dhananjaya Y Chandrachud, CJI.) (Concurring) [Paras 14-19]