Section 6A of the Citizenship Act — why it fails Assam

‘The mechanism of Section 6A, designed to identify and process migrants from the 1966-71 period, is fundamentally flawed’
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The 4:1 majority ruling by a Constitution Bench of the Supreme Court of India, in October 2024, that upheld the constitutional validity of Section 6A of the Citizenship Act, 1955 is significant. This provision establishes a distinct framework for migrants from the former East Pakistan (Bangladesh) who settled in Assam, allowing them to acquire Indian citizenship if they arrived before March 25, 1971. It is worth analysing the judgment for constitutional violations that were overlooked by the majority decision, and also discussing the potential negative implications of the ruling.

The judgment seems to suffer from arbitrary reasoning. The then Chief Justice of India, D.Y Chandrachud, while justifying the test of Article 14, i.e., taking out of Assam against other States, said, “Though other states such as West Bengal (2216.7 km), Meghalaya (443 km), Tripura (856 km) and Mizoram (318 km) share a larger border with Bangladesh as compared to Assam (263 km), the magnitude of influx to Assam and its impact on the cultural and political rights of the Assamese and Tribal populations is higher…The impact of forty lakh migrants in Assam may conceivably be greater than the impact of fifty seven lakh migrants in West Bengal because of Assam’s lesser population and land area compared to West Bengal. Thus, the singling out of Assam is based on rational considerations.” However, while testing the law against Article 29, the Court held that the influx of the people did not affect the language, script, or culture of the Assamese people nor did it affect their ability to protect the same. A simple examination of the contradictory reasoning indicates that the judgment was crafted to support the provision rather than to evaluate it against constitutional principles.

The background

Section 6A of the Citizenship Act was introduced in 1985 following the Assam Accord, an agreement reached between the Government of India and the leaders of the Assam Movement. The movement arose in response to the migration from East Pakistan (now Bangladesh) into Assam, sparking concerns about the preservation of the local culture, economic strain, and political imbalance. The Assam Accord sought to resolve these issues by setting specific cut-off dates for granting citizenship to migrants: before January 1, 1966 – all Indians who migrated to Assam were declared Indian citizens; between January 1, 1966, and March 25, 1971 – citizenship can be granted to the people after 10 years of residence in Assam; after March 25, 1971 – all these people were declared illegal migrants and were liable to detection and deportation.

Gaps in the reasoning

There are constitutional pitfalls in Section 6A of the Citizenship Act. There is a violation of Article 29 of the Constitution — cultural and linguistic displacement. Article 29 of the Constitution guarantees the protection of distinct cultural and linguistic identities within India. In its ruling, the Court held that Section 6A was not violative of Article 29(1), stating that the mere presence of different ethnic groups in a State does not automatically infringe upon the cultural rights guaranteed by the Constitution. It said Article 29(1) confers the right to “conserve” culture, which it interpreted as allowing a section of citizens to take positive steps to protect their language, script, or culture, and that the law must not prevent such efforts. The Court emphasised that the petitioners failed to prove that the influx of migrants, facilitated by Section 6A, directly hindered the Assamese people’s ability to take steps to conserve their culture.

Editorial | Culture and society: On upholding Section 6A of the Citizenship Act

However, this reasoning is completely flawed. While the Court laid emphasis on the abstract right to “conserve” culture, it overlooked the fact that the provision creates hindrances to the people in meaningfully preserving their cultural identity. It failed to observe that mere formal recognition of the right to conserve culture is insufficient if the State allows circumstances to unfold which erode the very culture it seeks to protect. Research by Dinesh Bhugra and Matthew A. Becker found out that during the acculturation process, both the immigrant and host cultures may change. Changes in attitudes, family values, generational status and social affiliations can occur in both the majority and minority cultures as the two interact. Further, the Court also took note of the research paper titled “The Change of Religion and Language Composition in the State of Assam in Northeast India: A Statistical Analysis Since 1951 to 2001”, which indicates that between 1951 and 2001, the percentage of the Bengali-speaking population in Assam had increased by 29.7%, from 21.2% to 27.5%, while the proportion of Assamese-speaking people had declined by 12.26%, from 69.3% to 60.8%. Further, as per the submissions of the petitioners recorded by the Court, from 1951 to 2011, the percentage of the Bengali-speaking population in Assam had increased by 36.36% (from 21.2% to 28.91% of the total population of Assam), while the proportion of Assamese speaking people in the State had declined by 30.18%, i.e., from 69.3% to 48.38% of the total population of Assam. This demographic shift is not a mere coexistence of ethnic groups but represents a cultural and linguistic displacement that has severely undermined the distinct identity of the Assamese people.

One of the most striking constitutional flaws of Section 6A is its temporal unreasonableness, a concept under the doctrine of manifest arbitrariness. Laws that are constitutional at the time of enactment can become unreasonable over time due to changing circumstances, and Section 6A is a clear example of this.

The law lacks any temporal limitation on its operation, allowing individuals from this stream to apply for citizenship indefinitely. More than 40 years after the cut-off date, the law still remains in force, which has rendered it ineffective in addressing the original problem it was designed to solve.

Faulty mechanism, its impact

The mechanism for identifying and processing these migrants under Section 6A(3) is flawed because it places the burden of initiating proceedings on the state, without providing a means for voluntary self-identification by migrants. This means that suspected illegal immigrants must be referred to a foreigners’ tribunal, which then determines their status. However, the absence of any deadline for making such referrals allows the law to remain operational indefinitely, perpetuating a system that no longer serves its intended purpose.

Further, the foreigners’ tribunal, which is responsible for determining the citizenship status of individuals referred under Section 6A, has become bogged down by the sheer volume of cases. Even individuals who do not qualify under Section 6A can claim to fall within its purview, slowing down the entire process and leading to widespread confusion.

It seems the Court wrote the judgment to merely justify the enactment of Section 6A. The ruling fails to address key constitutional concerns, particularly those regarding the cultural and demographic impact on Assam’s indigenous population. The judgment overlooked how unchecked migration has eroded the linguistic and cultural identity of the Assamese people, in violation of Article 29’s protective intent. Moreover, the Court’s neglect of the provision’s temporal unreasonableness perpetuates arbitrary and outdated policies.

Ravi Singh Chhikara is an advocate at the Supreme Court of India and also the Delhi High Court. Arnav Roy is a third-year student at the National Law University, Delhi