In Re: Section 6A of The Citizenship Act, 1955, WP (Civil) No. 274 of 2009

Five-Judge Bench of this Court in Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 observed, “Traditions that might have been acceptable at some historical point of time are not cast in stone. If times and situations change, so must views, traditions and conventions.”

It appears to me as illogically unique, a person wanting to avail benefit of citizenship by registration under Section 6A(3) has to await identification as a suspicious immigrant. The clock only starts to tick once detection is made and there is no prescription as to period of time within which exercise of detection is to be completed. It incentivises immigrants belonging to 1966-71 stream to continue to remain on electoral rolls for an indefinite period and only get registered under Section 6A once detected. There is no temporal limit to applicability of Section 6A(3).

Hence, in my opinion it would be appropriate to declare Section 6A as unconstitutional with prospective effect. To be precise, if someone is apprehended as an illegal immigrant after this pronouncement, Section 6A will have no application. Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and who have been detected as foreigners but have not registered themselves within prescribed time limit as per The Citizenship Rules, 2009 will no longer be eligible for benefit of citizenship.

Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and whose applications are pending for adjudication or who have preferred any appeal, which is pending before any Court, will continue to be governed by Section 6A(3) as it stood immediately prior to this pronouncement till their appeals are disposed of.

– Hon’ble Justice J.B. Pardiwala

Due to porous borders and incomplete fencing, unceasing migration imposes a significant challenge. Union of India was unable to provide precise figures due to clandestine nature of such inflows. We hold, while statutory scheme of Section 6A is constitutionally valid, there is inadequate enforcement of same leading to possibility of widespread injustice. The intention of Section 6A, i.e., to restrict illegal immigration post-1971, has also not been given proper effect.

– Hon’ble Justice Surya Kant

Justice Pardiwala refers to Doctrine of Temporal Unreasonableness to hold, Section 6A(3) was has acquired unconstitutionality by efflux of time. Principle of Temporal Unreasonableness cannot be applied to a situation where classification is still relevant to objective. Section 6A(3) cannot be held unconstitutional on Temporal Unreasonableness.

– Hon’ble Chief Justice of India, Hon’ble Justice Dr. D.Y. Chandrachud