[This is a guest post by Rudraksh Lakra and Nidhi Jha.]
Introduction
On 17 October 2024, the Indian Supreme Court (“Indian SC”), in a 4:1 majority, upheld the constitutionality of Section 6A of the Citizenship Act. This provision was created following the signing of the Assam Accord in 1985 and grants citizenship (subject to certain conditions) to migrants from Bangladesh who entered Assam before March 25, 1971. In this piece, we analyze the judgment with a focus specifically on how the Court constructs the image of an immigrant. We seek to explore the progressive elements of this construction as well as its limitations.
Progressive aspect of the Section 6A judgment
The Indian SC decision on the constitutionality of Section 6A strikes a positive and inclusive tone in the discourse on immigration in Assam. The petitioners claimed that Assam has a right to protect its culture and that Section 6A, which enables foreign immigration, infringes upon this right. The Court adopted a progressive interpretation of fraternity, with Justice Chandrachud’s concurrence noting that the provision must be “read in light of the multicultural and plural nation that India is.” Justice Kant writing for the majority emphasized that demographic change does not inherently violate cultural rights. Both opinions held that the petitioners failed to provide adequate evidence of how they were unable to protect their culture or language due to Section 6A. Regarding claims related to the right to life and liberty, Justice Kant stated that the petitioners did not demonstrate how immigration had a detrimental effect on indigenous communities’ ability to govern themselves politically and economically. He asserted that “a nation can accommodate immigrants and refugees while simultaneously prioritizing sustainable development and equitable allocation of resources.” The Court’s approach is a rejection of a narrow cultural protectionist view based on ethno-nationalism, often promoted by Assamese majority political groups. It presents an image of immigration rooted in (1) the idea of interconnectedness and potential for social belonging among diverse groups, and (2) collective political and economic self-determination.
Shortcomings in the Court’s reasoning
As Mohsin Alam Bhat notes, despite its incomplete framing, what the judgment “leaves out” is the voices of the migrants themselves. The Court frames this as a balancing act between the government trying to manage the costs of migration and its humanitarian concerns. However, the refugees, the stateless, and the multigenerational immigrants who are affected by this are missing from the issues. The Court did not consider whether the state has an obligation to protect the rights of refugees and stateless persons.
Further, the progressive tone in the majority opinion discussed in the preceding section is limited to “lawful” immigrants, rather than “illegal” or undocumented immigrants – those arriving post March 25, 1971. Justice Kant, in the context of the petitioners’ arguments regarding immigration as aggression, distinguished between ‘incessant’ flow of illegal migrants—which could constitute ‘external aggression’ and lawful immigration, which was ‘controlled’ and ‘regulated,’ thus falling short of it. In the operative part of the judgment, Justice Kant noted that while the “statutory scheme of Section 6A is constitutionally valid, there is inadequate enforcement of the same—leading to the possibility of widespread injustice” and thus there was need to give effect to the “directions issued in Sarbananda Sonowal for the illegal immigrants.”
Legacy of exclusionary imagery
The majority’s endorsement of Sarbananda Sonowal vs. Union of India (2005) (“Sonowal I”) judgment is concerning as it articulates a negative and exclusionary view of illegal immigrants Assam. In Sonowal I, Justice Mathur, writing for the majority, portrayed immigrants as threats to job opportunities, natural resources, economic challenges and societal stability, linking them to criminal activities, terrorism, and Islamic fundamentalism. This negative and exclusionary portrayal reflects a colonial mindset regarding immigration from the “Orient” and aligns with an ethno-nationalist perspective that sets the tone for the Court’s ruling. He dismissed the argument for the right to life in a single line, stating that the right not to be deprived of life or liberty without due process can have no application here for the “obvious” reason that this is a matter of identification of a foreigner and his deportation. Further, the Court declared the Illegal Migrants (Determination by Tribunals) Act unconstitutional primarily because it was perceived to be ineffective in deporting sufficient numbers of illegal migrants. In essence, the deportation law’s objective, in this view, was not to offer due process safeguards, but only the removal of as many illegal migrants as possible. This judgment created a form of legal exceptionalism, when it came to the deportation and citizenship determination of alleged illegal immigrants in Assam. As Mohsin Alam Bhat has observed, “cases like Sonowal I and others in Assam’s High Court have used the language of security to remove citizenship determination from the protection of fundamental rights” (exceptionalism).
In this light, Justice Kant, writing for the majority, could have refrained from commenting on the implementation of Section 6A—including its requirement for the deportation of illegal immigrants—and instead focused solely on its constitutionality (which was actually what the case was about). Given the precarious legal situation for individuals in Assam—especially those affected by the National Register of Citizens and Foreigners Tribunals—the Court should have called for a more progressive and rights-based approach to citizenship adjudication.
It is important to highlight that Justice Chandrachud’s concurring opinion is somewhat more progressive than the majority’s, as it does not endorse Sonowal I and avoids commenting on the implementation of Section 6A, focusing solely on its constitutionality. Further, he rejected the applicability of the argument that immigration constitutes a form of external aggression, which was asserted based on Article 355 of the Constitution (endorsed by Sonowal I and Justice Kant). Justice Chandrachud held that a legislative enactment cannot be challenged for contravening Article 355.
Conclusion
The Indian SC Section 6A judgment presents a mixed legacy. While it advances certain progressive principles by rejecting ethno-nationalist arguments and embracing a broader notion of fraternity for legal immigrants, it ultimately falls short by neglecting to amplify migrant voices. This oversight leaves critical gaps in protecting their rights and perpetuates a legacy of legal exceptionalism concerning unauthorized immigration.