Section 6A of the Citizenship Act Upheld; Article 355 Not a Standalone Ground; Refined Article 14 Tests and a Significant Dissent on Temporal Unreasonableness — Commentary on In Re: Section 6A of the Citizenship Act, 1955 (2024 INSC 789)

Court: Supreme Court of India | Bench: Dr D.Y. Chandrachud, CJI (separate concurring opinion); Surya Kant, J. (for himself, M.M. Sundresh, J. and Manoj Misra, J.); J.B. Pardiwala, J. (separate opinion, prospective invalidation) | Date: 17 October 2024 | Citation: 2024 INSC 789

Key holdings at a glance

Section 6A is constitutional: The majority (Surya Kant, J.; Sundresh, J.; Misra, J.), with a separate concurring opinion by the CJI, upheld the validity of Section 6A of the Citizenship Act, 1955 that implements the Assam Accord by conferring citizenship on certain migrants from erstwhile East Pakistan (Bangladesh) to Assam up to 24 March 1971.
Article 11 clarified: Article 11 of the Constitution does not operate as a non-obstante clause but preserves Parliament’s plenary competence under Entry 17 (List I) to legislate on citizenship, without being “derogated” by Articles 5–10; Section 6A does not amend or conflict with Articles 6–7, which were transitional and pegged to the commencement of the Constitution.
Article 14 refined: Targeted Assam-specific classification and the two cut-off dates (1 January 1966 and 25 March 1971) are reasonable and bear rational nexus to the legislative objective; the section is neither under-inclusive nor manifestly arbitrary; “ordinarily resident” is not vague.
Article 29(1): No violation; the right to “conserve” culture protects positive steps to preserve identity but does not authorize exclusion of other groups; presence of migrants per se is not proof of cultural impairment.
Article 355: Not a standalone ground to strike down a statute; the duty clause justifies State action and is relevant to assess legitimate aims but cannot be used directly to invalidate legislation.
Electoral rights (Article 326) and Article 21: No constitutional infringement shown.
Implementation directions: Post-25 March 1971 entrants are “illegal immigrants” and subject to detection and deportation; the Immigrants (Expulsion from Assam) Act, 1950 (IEAA) is to be read with Section 6A and the Foreigners Act; present tribunal capacity is inadequate; a monitoring bench is to be constituted.
Important dissent: Pardiwala, J. would prospectively invalidate Section 6A as manifestly arbitrary due to lack of temporal limits and the onus on the State for detection—while saving all past grants and pending detections/registrations.

Introduction

The case arose from a long-standing constitutional challenge to Section 6A of the Citizenship Act, 1955—enacted in 1985 to give legislative effect to Clause 5 of the Assam Accord—by which certain classes of persons of Indian origin who migrated from (then) East Pakistan to Assam prior to 1 January 1966 were deemed citizens, and those migrating between 1 January 1966 and 24 March 1971 could obtain citizenship upon detection as foreigners, registration, and after a ten-year interregnum without electoral franchise.

The petitions—some dating back to 2009—questioned Section 6A’s compatibility with Articles 6–7 (citizenship at commencement), Article 11 (Parliament’s power), Article 14 (equality), Article 29(1) (cultural conservation), Article 21 (life and personal liberty), Article 326 (universal adult suffrage), and Article 355 (Union’s duty to protect States against external aggression and internal disturbance). They also hinted at the federal and democratic stakes—from demographic change to political representation—and the overall workability of the Assam-specific regime within India’s multi-tier citizenship and foreigners’ laws.

While the challenge was framed widely, the Constitution Bench eventually crystallised the central question: does Section 6A suffer any constitutional infirmity? The Bench delivered three opinions: a reasoned majority opinion (Surya Kant, J.) joined by Sundresh, J. and Misra, J.; a concurring opinion by the CJI, and a separate opinion by Pardiwala, J. advocating prospective invalidation.

Summary of the Judgment

Majority (Surya Kant, J.; Sundresh, J.; Misra, J.)

Maintainability & Judicial Review: Though filed with delay, the petitions involved large public questions and constitutional scrutiny of a statute; laches not a bar.
Part II & Article 11: Articles 6–7 fixed transitional citizenship for a closed period linked to the Constitution’s commencement. Article 11’s “shall not derogate” phrase clarifies that Parliament’s power to legislate on citizenship is not curtailed by Articles 5–10. Section 6A does not alter Articles 6–7; it addresses a later period (1966–1971) to implement the Assam Accord and is within legislative competence.
Article 14: (i) Assam’s singling out is justified by history, scale of migration and unique political context; (ii) the cut-off dates are rational: 1 January 1966 relates to electoral rolls and administrative reasons; 25 March 1971 reflects Bangladesh’s war of liberation (Operation Searchlight began 25 March 1971); (iii) Section 6A is neither under-inclusive nor manifestly arbitrary; bright-line cut-offs are permissible policy choices; (iv) “ordinarily resident” is a settled term, not vague.
Fraternity & Article 29(1): Fraternity cannot be weaponised to create exclusionary enclaves; Article 29(1) protects communities’ positive efforts to conserve culture but does not prohibit the presence of other groups; no causal proof of cultural impairment attributable to Section 6A was shown; statutory and constitutional safeguards exist for Assam’s tribal and linguistic groups.
Article 355 & Sarbananda Sonowal: Article 355 is a justification clause for Union action and indicates a legitimate aim; it is not a freestanding ground to strike down statutes. Sarbananda Sonowal (2005) invalidated the IMDT Act on Article 14 grounds by comparison with the Foreigners Act and did not establish Article 355 as a sword against legislation.
Articles 21 & 326: No violation demonstrated; Article 326 enfranchises citizens and prescribes statutory routes for electoral roll purification; Section 6A does not dilute citizens’ right to vote.
Implementation Directions: Persons entering Assam on or after 25 March 1971 are illegal immigrants; immediate steps for detection, deletion, and deportation must ensue; the IEAA 1950 is to be read with Section 6A and the Foreigners Act; Foreigners’ Tribunal infrastructure is inadequate and must be augmented; the matter is to be placed before the CJI for constituting a bench to monitor implementation.

Concurring (Dr D.Y. Chandrachud, CJI)

Article 11 & Part II: Clarifies the semantic and structural role of “shall not derogate”—not a non-obstante clause, but a de-linking clause that preserves Parliament’s competence even where Part II provisions govern transitional citizenship at commencement; Section 6A does not retrospectively amend Articles 6–7; both operate in distinct time-spheres.
Article 14: Proposes a nuanced framework for under-inclusion: courts assess objective and means, and the State may prioritise degrees of harm; heightened deference is appropriate in economic regulation; higher scrutiny attaches where core rights or identity are implicated; Section 6A meets the refined rational-basis inquiry.
Article 355: Not a substantive limit on legislative power nor a stand-alone basis for invalidation; relevant to legitimate object analysis but not a constitutional sword.
Section 6A(3): Not temporally unreasonable; detection-linked registration is a considered institutional design within the broader foreigners’ regime (Foreigners Act/Tribunals, Citizenship Rules, NRC processes).

Separate opinion (J.B. Pardiwala, J.) — Prospective invalidation

Temporal unreasonableness & manifest arbitrariness: Over nearly four decades, open-ended detection and the exclusive onus on the State have produced perverse incentives and undermined Section 6A’s own design (e.g., prolonged electoral participation of 1966–71 entrants pending detection, tethering them to Assam to satisfy “ordinarily resident,” susceptibility to forgery); the provision has become manifestly arbitrary and temporally unreasonable.
Prospective ruling: Section 6A should be declared unconstitutional prospectively, with a comprehensive saving regime:
- Pre-1 January 1966 deemed citizens remain unaffected.
- 1966–71 entrants already granted citizenship remain unaffected.
- 1966–71 entrants detected and registered: citizenship matures per statute (after the 10-year period).
- 1966–71 entrants detected but not registered within time: no longer eligible.
- Pending detection/appeals: continue under Section 6A(3) as it stood.
- From judgment date, no fresh benefits under Section 6A for any immigrant.

Analysis

A. Precedents and their doctrinal use

Izhar Ahmed Khan v. Union of India (1962): Read to delineate the time-spheres of Articles 9 and Section 9 of the Citizenship Act and to emphasize Parliament’s sovereign competence over citizenship notwithstanding Part II’s transitional design.
Sarbananda Sonowal v. Union of India (2005): Struck down the IMDT Act primarily on Article 14 grounds by comparing it with the Foreigners Act regime; “external aggression” under Article 355 was discussed but not applied as a stand-alone invalidating standard; distinguished in this case.
Naga People’s Movement of Human Rights v. Union of India (1998): Article 355 used as a justification for conferral of powers to the Union but not as a freestanding litigable right.
Shayara Bano (2017), Navtej Johar (2018), Joseph Shine (2019): Transpose the “manifest arbitrariness” standard into legislative review, requiring an “adequate determining principle” and consonance with constitutional values; the majority applies this standard to uphold Section 6A; Pardiwala, J. uses the framework to reach a different conclusion due to temporal factors.
Motor General Traders (1984), Rattan Arya (1986), Satyawati Sharma (2008): Doctrines of temporal unreasonableness and reading down; relied upon by Pardiwala, J. to argue that a scheme valid initially may become unconstitutional over time as circumstances fundamentally change.

B. Legal reasoning distilled

1) Article 11’s architecture and Part II’s temporality

The Court carefully parses Article 11’s “shall not derogate” language. Unlike a non-obstante clause, it clarifies that the transitional provisions in Part II (Articles 5–10) neither limit Parliament’s subject-matter competence (which lies in Entry 17, List I) nor exhaust the field. Articles 6–7 address citizenship at the commencement of the Constitution and for a narrow period around 1947–50. Section 6A, in contrast, operates prospectively for a later historical contingency (1966–71) and is thus not an amendment to the constitutional text but a legislative policy implementing the Assam Accord.

2) Article 14 retooled: under-inclusion, bright-line cut-offs, and the “means” test

Assam-specific classification: The Court accepts a historically contextualised classification; asymmetric federal arrangements, political compromises (like the Assam Accord), and varied regional needs can justify State-focused legislation.
Cut-off dates’ rationality: 1 January 1966 aligns with electoral roll regularisation/administrative convenience; 25 March 1971 tracks the outbreak of the Bangladesh Liberation War—administratively and normatively sound bright-line thresholds.
Under-inclusiveness: The Court clarifies that legislative latitude to identify degrees of harm is preserved; comparisons are drawn between classes (Assam v. “rest of India” at a class level), not between edge cases (e.g., particular districts in West Bengal); no infirmity found.
Manifest arbitrariness: The majority emphasises that Section 6A is coherently designed within the foreigners/citizenship framework (detection → registration → rights without franchise for 10 years → citizenship), and “ordinarily resident” is a familiar, judicially construed expression.

3) Article 29(1), fraternity, and multiculturalism

The Court underscores that Article 29(1) secures the right to conserve a distinct language, script, or culture. The right is both negative (against State interference with conservation efforts) and positive (State must create conditions for conservation). But the mere presence of diverse ethnicities is not an actionable constitutional harm. Fraternity—imported into Indian constitutional culture—promotes integration, not the creation of insulated enclaves. No evidence demonstrated that Section 6A obstructed Assamese communities from conserving their culture.

4) Article 355’s place in the rights framework

Article 355 figures in the rights analysis only to test the legitimacy of objectives in proportionality/equality reviews; it is not a source of enforceable rights against legislation. In validating Section 6A, the Court disentangles Article 355’s justification function (e.g., to authorize Union protective measures) from its use as a litmus test to annul statutes. Sarbananda Sonowal is read as an Article 14 decision.

5) The dissent’s governance critique (Pardiwala, J.)

Open-ended detection & incentive distortion: With detection as a temporal trigger for disenfranchisement and eventual citizenship, migrants of the 1966–71 stream may remain on electoral rolls for decades pending detection; the absence of a fixed endpoint and total reliance on the State to initiate detection is a structural flaw.
“Ordinarily resident” tethers: The requirement encourages eligible migrants to remain in Assam indefinitely to preserve their claim; this defeats the intertemporal logic and confers de facto benefits without a bounded process.
Prospective overruling: Invoking Indian and comparative jurisprudence, the dissent crafts a saving regime to protect settled rights but halts fresh accruals under Section 6A.

C. Impact and implications

Section 6A remains on the statute book: The binding ratio is that Section 6A is constitutional; Assam continues with a bespoke citizenship regime for up to 1971 migrants of Indian origin subject to detection and registration.
Robust enforcement is mandated: A clear call has been made to:
- treat post-25 March 1971 entrants as illegal immigrants;
- expedite detection, deletion, and deportation;
- scale up Foreigners’ Tribunal capacity and administrative machinery;
- harmonise and concurrently apply the IEAA 1950, Foreigners Act/Orders, Passport Act, and Registration of Foreigners regime.
Article 14 doctrinal development: The decision sharpens the tests for under-inclusion and manifest arbitrariness; it recognizes legitimate bright-line policy choices and articulates context-sensitive deference.
Article 355’s justiciability boundaries are settled: It is not a free-standing invalidation ground; its role is justificatory and contextual.
Temporal unreasonableness flagged for the future: While not adopted by the majority, the dissent will influence future scrutiny of open-ended legislative designs, particularly where processes hinge on State-initiated triggers and span decades.
Administrative to-do list: Expect a Court-monitored regime in Assam; data systems (NRC/Population Register interfaces), tribunal staffing, border fencing, and inter-agency coordination must be fortified.

Complex concepts simplified

1) “Shall not derogate” vs “Notwithstanding”

“Notwithstanding” creates an override; it says “apply me even if another provision says otherwise.”
“Shall not derogate” clarifies that one set of provisions (here, Part II) does not reduce or cut down another constitutional power (here, Parliament’s power to legislate on citizenship). It de-links, rather than overrides.

2) Under-inclusion and over-inclusion

A law is under-inclusive if it covers some, but not all, of the problem it aims to tackle; over-inclusive if it sweeps in those not part of the problem. Courts tolerate some degree of both, especially with bright-line policy choices and administrative necessities.

3) Bright-line cut-off dates

A clear date (e.g., 25 March 1971) may appear arbitrary at the margins, but courts accept it when it is tied to a real-world watershed (Bangladesh war) and simplifies administration.

4) “Ordinarily resident”

A settled legal phrase used across Indian statutes; it means residence with some degree of regularity and stability—without every single day’s presence—and is ultimately context-specific.

5) Manifest arbitrariness

A law falls for manifest arbitrariness where it’s capricious, irrational, lacks an “adequate determining principle,” or is excessive and disproportionate. The majority found Section 6A structured and coherent; the dissent found its time-unbounded design irrational in 2024 conditions.

6) Temporal unreasonableness & prospective overruling

Some laws can become unreasonable over time because the reasons justifying them disappear; courts have occasionally struck down such laws or limited remedies prospectively to preserve settled rights and avoid chaos.

Practical consequences and compliance pointers

For the Union and Assam:
- Constitute additional Foreigners’ Tribunals; build digital workflows; ensure reasoned, time-bound disposal (the Tribunal Order already guides timelines).
- Apply IEAA 1950 (expulsion), Foreigners Act/Orders, Passport Acts in tandem; track detection, registration, disenfranchisement cycles for 1966–71 migrants under Section 6A(3); deport post-1971 entrants.
- Align NRC/Population Register processes with detection; create audit trails; protect due process for suspected foreigners.
- Implement cultural and constitutional safeguards already in place (Sixth Schedule institutions, Official Language Act, etc.).
For ECI and electoral authorities: The 10-year disenfranchisement runs from the date of “detection as foreigner”; maintain accurate roll revision logs; interlock with tribunal outcomes.
For litigants: Challenges to voter inclusion must use the statutory RPA mechanisms; Article 326 is not a direct exclusionary tool.

Conclusion

This Constitution Bench judgment settles two big questions. First, Section 6A—controversial but historically specific—passes constitutional muster. Parliament’s power under Article 11 is intact, and the Assam-specific classification with its twin cut-off dates is reasonable and coherent. Second, Article 355 cannot be brandished to fell statutes; it guides legitimate State action but is not a litigation sword.

At the same time, the Court has crafted a demanding implementation agenda: those entering on or after 25 March 1971 are “illegal immigrants” whose detection, deletion, and deportation must be accelerated using the Foreigners Act/Orders, IEAA 1950, and allied frameworks. A monitoring bench will maintain oversight. The dissent cautions that temporally unbounded designs like Section 6A can ossify into arbitrariness, urging legislatures to build in closure points.

Going forward, the doctrinal refinements to Article 14—on under-inclusion and manifest arbitrariness in the face of bright-line cut-offs—will influence equality review across domains. The case also deepens our understanding of fraternity and Article 29(1) in a plural republic: conservation of identity thrives not on exclusion, but on enabling communities to take positive steps to preserve language and culture, amidst diversity.

Ultimately, the Court has chosen continuity with clarity—upholding Section 6A while insisting on robust, rights-compliant enforcement and signalling, through a thoughtful dissent, the constitutional costs of leaving time-bound policies open-ended.