NEW DELHI: In ploughing a lone furrow to invalidate Section 6A of the Citizenship Act prospectively, Justice J B Pardiwala in his dissent fundamentally differed with the opinion of the four judges of the Supreme Court who upheld the validity of the provision, which was enacted in 1985 to curb illegal migration from Bangladesh after March 24, 1971.
Though CJI D Y Chandrachud in a separate opinion agreed with Justice Surya Kant, who wrote the majority opinion on behalf of himself and Justices M M Sundresh and Manoj Misra, to validate Section 6A, Justice Pardiwala focused only on Justice Kant’s opinion and mentioned his name 36 times in his 127-page opinion, which was conspicuous in its absence of any reference to the CJI.
Justice Pardiwala did not fault the enactment of Section 6A in 1985 following the Assam Accord but said the provision has “acquired unconstitutionality with the efflux of time”.
“The efflux of time has brought to light the element of manifest arbitrariness in the scheme of Section 6A(3) which fails to provide a temporal limit to its applicability. The prescribed mechanism also shifts the burden of detection of a foreigner solely on the state, thus, counter-serving the very purpose for which the provision was enacted, that is, the expedient detection of immigrants belonging to the 1966-71 stream, their deletion from the electoral rolls, and conferment of de-jure citizenship only upon the expiry of 10 years,” he said.
“I am of the clear view that Section 6A suffers from the vice of manifest arbitrariness on account of the ‘systematic failure of the legislative vision’, if I may put it in the very words of Justice Kant,” he said, adding that continuance of Section 6A had resulted in the influx and continued presence of illegal immigrants into Assam till date.
“Inadequate implementation of Section 6A(3) of the Act is inextricably linked to the fallacious mechanism (for detection and deportation of illegal migrants) that has been prescribed under it,” he added.
Justice Pardiwala was, however, one with his peers and predecessors who wrote the Sonowal verdict in underlining the failure to stem the flood of illegal migrants from Bangladesh. Criticising successive govts since 1985 for doing precious little to detect and deport illegal migrants, Justice Pardiwala said, “In my view, although the mandate of timely detection and deportation of illegal immigrants was the fundamental premise on which the Assam Accord was signed, yet, this intention recorded in the Accord was never translated statutorily, due to a faulty mechanism prescribed under Section 6A(3), either due to inadvertence or advertence of the legislature.”
Though CJI D Y Chandrachud in a separate opinion agreed with Justice Surya Kant, who wrote the majority opinion on behalf of himself and Justices M M Sundresh and Manoj Misra, to validate Section 6A, Justice Pardiwala focused only on Justice Kant’s opinion and mentioned his name 36 times in his 127-page opinion, which was conspicuous in its absence of any reference to the CJI.
Justice Pardiwala did not fault the enactment of Section 6A in 1985 following the Assam Accord but said the provision has “acquired unconstitutionality with the efflux of time”.
“The efflux of time has brought to light the element of manifest arbitrariness in the scheme of Section 6A(3) which fails to provide a temporal limit to its applicability. The prescribed mechanism also shifts the burden of detection of a foreigner solely on the state, thus, counter-serving the very purpose for which the provision was enacted, that is, the expedient detection of immigrants belonging to the 1966-71 stream, their deletion from the electoral rolls, and conferment of de-jure citizenship only upon the expiry of 10 years,” he said.
“I am of the clear view that Section 6A suffers from the vice of manifest arbitrariness on account of the ‘systematic failure of the legislative vision’, if I may put it in the very words of Justice Kant,” he said, adding that continuance of Section 6A had resulted in the influx and continued presence of illegal immigrants into Assam till date.
“Inadequate implementation of Section 6A(3) of the Act is inextricably linked to the fallacious mechanism (for detection and deportation of illegal migrants) that has been prescribed under it,” he added.
Justice Pardiwala was, however, one with his peers and predecessors who wrote the Sonowal verdict in underlining the failure to stem the flood of illegal migrants from Bangladesh. Criticising successive govts since 1985 for doing precious little to detect and deport illegal migrants, Justice Pardiwala said, “In my view, although the mandate of timely detection and deportation of illegal immigrants was the fundamental premise on which the Assam Accord was signed, yet, this intention recorded in the Accord was never translated statutorily, due to a faulty mechanism prescribed under Section 6A(3), either due to inadvertence or advertence of the legislature.”
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