Even the Chief Justice turned against Bangladeshis in Assam! Look at the arguments of Justice Pardiwala

New Delhi: The Supreme Court gave an important decision on the legality of the special provision giving citizenship to Bangladeshis who had entered Assam as per the Assam Accord of August 15, 1985. A five-judge constitutional bench headed by Chief Justice DY Chandrachud (Justice Dhananjay Yashwant Chandrachud) in a 4:1 verdict upheld Section 6A of the Citizenship Act, 1955 as valid. One judge, Justice JB Pardiwala (Justice Jamshed Burjor Pardiwala), dissented from the majority, calling Section 6A arbitrary, temporally unreasonable and clearly unconstitutional.

Main reasons given for opposition to Justice Pardiwala

Justice Pardiwala gave two main arguments in favor of his/her decision. he/she said that there is a problem in the implementation of Section 6A due to two serious problems, firstly, there is no last date for applying for citizenship, and secondly, the entire burden of proving a person is a foreigner is on the state. Meaning, if a Bangladeshi has come to Assam, the entire responsibility is on the state to prove him/her as an infiltrator.

The only trouble the infiltrator has to take is to cross the India-Bangladesh border and enter Assam by any means possible. he/she does not need to prove that he/she is not an infiltrator but a citizen of India. Justice Pardiwala also said that there should be one opportunity to avail the exemption given in Section 6A and not countless. Instead, a law was made that the migrants who came between 1966 and 1971 had to be first identified and then sent to the Foreigners Tribunal. For what reasons Justice Pardiwala declared Section 6A of the Citizenship Act irrelevant and unconstitutional, know in five points…

1. Not having a time limit is wrong

Justice Pardiwala emphasized that Section 6A(3) does not impose any time limit for tracing foreigners. Because of this, the state government is hesitant in identifying, detecting and removing the names of infiltrators from the voter list because it is not under pressure to do so within the stipulated time. Also, it allows migrants of 1966-71 to remain in the voter list indefinitely. Unless the Foreigners Tribunal finds that he/she is a foreigner, he/she is not under any pressure to apply for citizenship. This is contrary to the purpose of Section 6A which provides for speedy identification, removal from electoral rolls and grant of regular citizenship.

2. The entire burden is on the state, help to infiltrators

Justice Pardiwala argued that the mechanism of Section 6A(3) places the entire burden on the State to identify the foreigners and produce them before the tribunal. This provision does not give any time limit to foreigners (in this case Bangladeshis) to identify themselves or get themselves registered. This is unjust and unconstitutional.

3. Ignoring the concerns of the people of Assam

he/she said the purpose of Section 6A was not only to benefit the migrants but also to address the concerns of the people of Assam. Since there is no time limit for removing migrants from the voter list, Section 6A does not serve the purpose of protecting the people of Assam. This is complete bias.

4. It’s irrelevant 6A

Justice Pardiwala said that Section 6A of the Citizenship Act has become manifestly arbitrary and unreasonable over time. Citing several earlier decisions of the Supreme Court, he/she said that any law can become irrelevant with time. he/she said that a law that was fair initially may become unjust and irrelevant over time. For this reason, the Supreme Court made amendments in many laws from time to time. Justice Pardiwala said that Section 6A has also become irrelevant now, hence its continued implementation for a long time is unconstitutional.

5. Against the spirit of the Constitution

he/she said the law is clearly arbitrary and unconstitutional due to the lack of time limit in Section 6A of the Citizenship Act, 1955 and placing the burden of detection on the state. This violates Article 14 (right to equality) of the Constitution as no such provision is made for any other foreigners.