Authored by Albina Jordy, who is currently pursuing an LLM in International Migration and Refugee Law and Policy at the National University of Galway, Ireland.
Introduction
The Citizenship Act, 1955, is one of the key legislations in India that guides in governing the citizenship and nationality of individuals within the territory. After the Assam Accord of 1985, Section 6A was inserted into the Citizenship Act to help in dealing with the loss of citizenship due to the large number of illegal migrations from East Pakistan, now known as Bangladesh, into the northeastern state of Assam. While Section 6A, overcame the particular regional demographic and security challenges, it has also come under criticism for various claims of violations of rights with questions of citizenship, statelessness, and equality before the law. In some ways, this section has the lurking potential of dissociation from international human rights law obligations of India, and thus called into question how national security and demographic concerns are pitted against basic human rights.
The article critically analyses Section 6A of the Indian Citizenship act, highlighting the tension between national sovereignty and international human rights obligations. It argues that while Section 6A was introduced to address demographic concerns in Assam following large-scale migration from Bangladesh, its implementation- particularly through the National Register of Citizens and Foreign Tribunals has led to significant human rights violations. This article aims to highlight the legal and humanitarian dilemmas posed by Section 6A and calls for a fairer, more transparent approach to citizenship determination in Assam.
Historical Context and Genesis of Section 6A
Section 6A inherits its legacy from the Assam Movement 1979-1985-a period of six years of civil turmoil spearheaded by a section of the Assamese people, who felt large-scale migration into Assam from Bangladesh, would be a threat to their demography, economy, and culture of the region. This movement finally resulted in the Assam Accord between the Indian government and leaders of the movement. It also tried to narrow down citizenship to when one entered Assam.[1]
Section 6A, that was added later into the Indian Citizenship Act in 1985, made a framework for differentiating between legal residents and illegal immigrants in Assam. Section 6A of the Citizenship Act, inserted by this agreement, stipulated that all those who entered Assam prior to January 1, 1966, would be treated as citizens; those who entered between January 1, 1966, and March 25, 1971, were to get citizenship after a decade; and those coming after the cut-off date of March 25, 1971, would be treated as illegal immigrants.
Implementation and Monitoring of Section 6A
The implementation of Section 6A has raised serious human rights concerns largely because of the updating of the National Register of Citizens. The NRC was supposed to be an exercise to list every legal resident of Assam; its final 2019 list left out nearly two million people, many of whom had lived in Assam for decades.[2] The NRC based its methodology on the need for documentary evidence-a factor that disproportionately affects the poor, socially, and economically marginalized, such as women, indigenous populations, and rural peoples[3].
Exclusion from the NRC is generally appealed to the Foreigners Tribunals, quasi-judicial bodies entrusted with making a determination of citizenship status. The tribunals have recently come under attack for operating in an opaque way, passing arbitrary orders, and not following a semblance of legal safeguards further precarious for those whose citizenship has been cast into doubt[4].
Section 6A and International Human Rights Law
The use of Section 6A in India is hinged on its commitments under international human rights laws. India has committed to adhere to certain standards of human rights by being a State party to some of the important international treaties, such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
- Right to Nationality and Non-Discrimination
Article 15 of the Universal Declaration of Human Rights[5] declares, “Everyone has the right to a nationality”. Section 6A has specifically, through the manner in which it has been implemented by means of the NRC process currently under way, placed this right of millions of individuals in Assam at risk. Most remarkably, the exclusion of nearly two million persons from the NRC brings into question India’s commitment to adherence to this fundamental right[6].
Article 26 of the ICCPR[7] also provides for the right to equality before the law, and freedom from discrimination. The NRC process is so positioned as to further violate this principle in view of its disproportionate effect upon the most marginalized sections of society-the women, the indigenous population, religious minorities, among others. This heavy reliance on documentary evidence is most of all working against women and rural populations whose lack of formal education or access to legal services has left them especially exposed to exclusion.
- Due Process and Fair Trial
Article 14 of the ICCPR [8]provides for the right to a fair hearing and due process. However, with many declared foreigners receiving either no or inadequate legal representation and an absence of appeal within the functioning of Foreigners Tribunals, serious questions have been raised regarding violation of due process rights under both Indian and international laws.
- Liberty and Security of Person
Article 3 of the ICCPR [9]provides that the state parties to the covenant undertake to ensure the equal rights of men and women to the enjoyment of all civil and political rights set forth in the present covenant. Likewise, Article 9 of the ICCPR [10]has provisions for liberty and security, whereby every person is inviolable, hence protection against arbitrary arrest or detention is accorded. Detention in Assam detention camps has also very often been without any prospect for release or any form of legal redress that may amount to a possible violation of this fundamental right. The poor conditions in these detention camps have raised concerns also regarding the right to humane treatment as protected both under Indian law and international standards on human rights[11].
- Economic, Social, and Cultural Rights
The ICESCR protects a range of economic, social, and cultural rights, including such rights as education, healthcare, and work[12]. People excluded from the NRC are bound to face massive obstacles in their way toward finding jobs, health services, and other social amenities. That would amount to the denial of basic rights for these already marginalised people, hence directly contravening India’s commitments under the ICESCR.
- Women’s Rights and Gender Equality
The very purpose of CEDAW is to eradicate discrimination against women in whatever form it takes and ensure equality of genders in the political, economic, social, and cultural spheres.[13] The execution of Section 6A has affected women-mostly rural and uneducated-who are unable to produce the needed documents as proof of their citizenship. In too many cases, the female status of citizenship is attributed to their fathers or husbands, therefore placing them in a dependent position that too often proves to be a disadvantage when male relatives are not around or deceased.
Article 9 of CEDAW[14] binds states to accord women equal rights with men regarding nationality and citizenship. The disproportionately gendered exclusions that women have faced in Section 6A and the processes of NRC may also be seen as a violation of India’s obligations under CEDAW. The lack of legal safeguards, coupled with women unable to navigate through complex bureaucratic channels, further entrenches gender inequality and reinforces their disenfranchisement.
- Statelessness and Non-Refoulement
Though India is not a signatory to the 1951 Refugee Convention, the principle of non-refoulement which is a prohibition on expulsion to a country where a person might be persecuted-is considered to be a principle of customary international law. Section 6A does address indirectly issues related to non-refoulement in determining the status of migrants from Bangladesh. However, the process under Section 6A is most likely to fail in guaranteeing protection for individuals from forced repatriation. The risk of statelessness arising from the enforcement of Section 6A is also a great human rights concern. Failure by Section 6A to address the issue of statelessness has compounded human rights violations resulting from this law, especially with regard to individuals who cannot prove their citizenship yet have no links to Bangladesh[15].
Legal Challenges and Supreme Court Verdict
Section 6A has also been challenged on constitutional grounds before the Indian Supreme Court, arguing that this section is discriminatory under Article 14 of the Indian Constitution. The arbitrary manner in which an Assamese resident was differently treated from other residents of Indian states called into question the serious issues of fairness in the law, as well as its selective application.
The Supreme Court of India, while giving the judgment through a 4:1 majority verdict on October 17, 2024, upheld the constitutionality of Section 6A of the Citizenship Act[16]. The Court held that Parliament had the legislative competence to enact the provision and further went on to state that Section 6A was enacted to balance the humanitarian concern with the need to protect the local population.
The majority opinion explained that Assam would be treated differently from the rest of the states with larger borders with Bangladesh because of the very large percentage of immigrants in Assam’s population. The Court also maintained that the cut-off date of March 25, 1971, was rational because it coincides with the end of the Bangladesh liberation war. The Chief Justice of India, Dr. D Y Chandrachud observed that the mere existence of several ethnic groups within a state does not imply that the basic right to conserve the language and culture of a section of citizens under Article 29 of the Constitution of India has been violated. The petitioners must show that one group cannot preserve its language and culture because of the existence of the other ethnic group.
Balancing National Sovereignty and International Obligations
The judgment of the Supreme Court brought out the sensitivity inherent in the balancing of national sovereignty with international human rights commitments. While upholding the constitutional validity of Section 6A, it showed that any humanitarian consideration to immigrants had to be balanced with the protection of the local population. The stance adopted by the Indian courts is thus an application of the principle of proportionality under international human rights law whereby interference with the rights has to be necessary and proportionate to the aim sought to be achieved.
However, Section 6A implemented through the NRC process and Foreigners Tribunals still raises concerns over international standards of human rights. The disproportionate effects it has on the marginalized communities, statelessness resulting thereof, and violation of due process of law are issues that still have tension between national security imperatives and human rights obligations. Section 6A of the Indian Citizenship Act is indeed an elaborated balancing of illegitimate immigration versus national security concerns with human rights obligations. Having said that, the Supreme Court has already upheld the constitutionality of the said provision. Yet this statutory provision continues to generate serious human rights concerns, especially if looked at from the perspective of the State being a party to international human rights treaties[17].
International Human Rights Law and National Implementation
The position of Section 6A in relation to international human rights law illustrates wider challenges in the application of human rights treaties at the national level. In “Texts and Materials on International Human Rights,” Rhona K.M. Smith[18] comments that while the signing of an international treaty might prove an important first step toward the protection of human rights, before protection can properly be sought, states must actually implement treaty provisions into domestic law.
Section 6A, in the backdrop of commitments made by India under international human rights treaties such as the ICCPR, ICESCR, and CEDAW discussed here, stand in direct contrast with the existing practice under the citizenship laws. Denial of due process and threat of statelessness on top of exclusion of the marginalized communities is a sure case that commitments under these international human rights have not yet been digested into the Citizenship framework in India. Matters are made worse by things like state sovereignty and political will, in which international bodies have no powers of enforcement to compel the states to fulfill their obligations relative to human rights.
Conclusion
While Section 6A has grave historical roots and regional imperatives, it has created serious problems under international human rights law. Implementation with the NRC and Foreigners Tribunals brings up issues related to the right to nationality, nondiscrimination, due process, and prohibition of statelessness. While the constitutional validity of Section 6A of the Citizenship Act was already upheld by the Indian Supreme Court, this law nevertheless continues to create human rights issues, especially regarding India’s obligations under the respective international treaties.
Any reform intended to bring Section 6A in line with international human rights standards must ensure that procedures for the conduct of an NRC process and Foreigners Tribunals be established in a manner which is transparent, nondiscriminatory, and fair. Protection from violation of rights of most vulnerable groups, prevention of statelessness, and grant of due process are bare minimum requirements for bringing national laws on citizenship in line with commitments under international human rights. It is a challenge, however, to balance this with protection for basic human rights, and that requires continued dialogue between the Government of India, Indian civil society, and international human rights bodies.
[1] Advay Vora, Section 6A of Citizenship Act| Five- judge bench uphold constitutionality in a 4:1 majority (Supreme Court Observer, 17th October 2024) < https://www.scobserver.in/reports/supreme-court-upholds-constitutionality-of- section-6a-of-the-citizenship-act-judgement-pronouncement-constitution-bench-in-re-section-6a-of-citizenship-act/> accessed on 17th October 2024.
[2] https://www.dw.com/en/india-citizenship-lists-nearly-2-million-face-statelessness/a-50237607#:~:text=An%20effort%20by%20the%20state,the%20list%20discriminates%20against%20Muslims accessed on 18-03-2025, accessed on 18th March 2025.
[3] ibid.
[4] Bikash Singh, Those left out of NRC will know reasons next month (The Economic Times, 21st October 2019) < https://economictimes.indiatimes.com/news/politics-and-nation/those-left-out-of-nrc-will-know-reasons-next- month/articleshow/71681116.cms?from=mdr> accessed on 14 October 2024.
[5] UNDHR, < https://www.un.org/en/about-us/universal-declaration-of-human-rights#:~:text=Article%2015,right%20to%20change%20his%20nationality> accessed on 18 March 2025.
[6] Bikash Singh (n 4).
[7] ICCPR, <https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights> accessed on 18 March, 2025.
[8] ibid.
[9] ibid.
[10] ibid.
[11] UNGA, “Report of the Secretary- General on Human Rights and arbitrary deprivation of nationality”, (19 December 2013) UN Doc A/HRC/25/28.
[12] ICESCR, < https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights> accessed on 18 March 2025.
[13] Frances Raday, Gender and Democratic Citizenship: Impact of CEDAW, International Journal of Constitutional Law (2012) <https://www.academia.edu/86241442/Gender_and_democratic_citizenship_the_impact_of_CEDAW> accessed on18 March 2025.
[14] CEDAW, < https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-elimination-all-forms-discrimination-against-women#:~:text=of%20international%20organizations.-,Article%209,change%20or%20retain%20their%20nationality.> accessed on 18 March 2025.
[15] UNHCR, “UN experts: Risk of statelessness for millions and instability in Assam, India”, Ahmed Shaheed and other (2019)< https://www.ohchr.org/en/press-releases/2019/07/un-experts-risk-statelessness-millions-and-instability-assam- india#:~:text=“We%20are%20seriously%20concerned%20over,detention%2C”%20the%20experts%20said> accessed on 15 October 2024.
[16] Apoorva, Supreme Court Upholds validity of Section 6A of Citizenship Act in landmark 4:1 ruling (SCC Online, 17th October 2024) < https://www.scconline.com/blog/post/2024/10/17/supreme-court-upholds-validity-section-6a- citizenship-act-landmark-4-1-ruling/ > accessed on 19 October 2024.
[17] Amnesty International, Designed to exclude: How India’s courts are allowing foreigners tribunals to render people stateless in Assam (Amnesty International, 2019) < https://www.amnesty.be/IMG/pdf/rapport_inde.pdf > accessed on 18 October 2024.
[18] ibid, at page 190-197 and 250.