What does the recent Supreme Court judgment on Assam migrants mean for dual citizenship in India? Part 2

Part 2 of the four-part series revisiting the question of dual citizenship in India in view of the Supreme Court judgment on Assam migrants.

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Read Part 1 here.

THE Supreme Court confirmed on October 17, 2024 the constitutionality of Section 6A of the India Citizenship Act 1955 (hereafter Assam Citizenship Case). The Section granted citizenship to a certain class of migrants from Bangladesh to Assam.

The majority in the judgment clearly sided with the Parliament, which would suggest confirmation of the broad powers of the Parliament in matters of citizenship.

However, close examination shows the judgment circumscribed the powers of the Parliament, which could open the door to dual citizenship under Indian laws.

In Part 1, we established what is and is not dual citizenship and the conventional understanding of the Constitution supporting the bar on dual citizenship. Here we unpack how the propositions thus arrived at were further examined in the recent Assam case.

The ratio in the Assam Citizenship Case

The Assam Citizenship Case had three separate judgments by:

1. The Chief Justice of India (CJI) Dr D.Y. Chandrachud.
2. Justice Surya Kant (on behalf of himself, Justice M.M. Sundresh and Justice Manoj Misra)
3. Justice J.B. Pardiwala's dissenting judgment primarily focused on the constitutionality of Section 6A(3) of the Citizenship Act, and is not very pertinent to the discussion of dual citizenship here.

Most significantly, there was unanimity that Articles 5–9 were applicable only at the commencement of the Constitution. Thus, the explicit non-inclusion of citizens who have acquired citizenship of a foreign country voluntarily by operation of Article 9 can be deemed to have been clearly affirmed as not operating to bar dual citizenship anymore.

Similarly, the court was unanimous in pointing out that Article 5 was also applicable only at the commencement of the Constitution. The case further examines the powers of the Parliament under Article 11, which has been traditionally viewed as empowering the Parliament.

Also read: "Protect constitutional culture and morality, not notoriously vague 'culture'," Indira Jaising on Day 3 of Section 6A hearings

The significance of sourcing powers from Part II has been that any citizenship-related laws passed by the Parliament would presumptively carry more weight than restrictions (e.g., due to the fundamental rights granted in Part III) under later Parts of the Constitution. To clarify, the provisions of the Constitution that are present earlier presumptively have more weight/ importance than those that come later.

Thus, the (potential) position of the government was that any laws made with the power of Part II were not subject to the various fundamental rights conferred to citizens under Part III of the Constitution.

The first opinion authored by CJI Chandrachud provides a significant clarification on the source of power for the Parliament in making laws in citizenship matters:

"Article 246 read with the Seventh Schedule delimits the legislative competence of the Parliament and the legislature of the states. The inference that can be drawn from the inclusion of Entry 17 in List I of the Seventh Schedule is that the Parliament (and not state legislatures) has the legislative competence to enact laws with respect to citizenship.

"The legislative subject to enact laws on citizenship is thus traceable to Entry 17. Provisions of Part II (Articles 10 and 11, in particular) do not confer the Parliament the power to enact laws relating to citizenship. The provisions operate in a different sphere. The provisions clarify the scope of the legislative power.

"Thus, the use of the phrases 'notwithstanding' and 'shall not derogate from' produce different effects. Article 11, when interpreted on the basis of the above analysis produces the following meaning:

• The legislative competence of the Parliament to enact laws related to citizenship is traceable to Entry 17 of List I and not Article 11; and

• The provisions in Part II do not impact or limit the legislative competence of Parliament." 

Thus, the first opinion, after a detailed analysis, has clarified that the source of the parliamentary power in enacting laws on citizenship matters is Entry 17, and not Article 11.

In contrast, courts in the past have made mere passing reference to Article 246 read with Entry 17 of List I of the Seventh Schedule as also being a source of power for the Parliament, but it was viewed as merely complementary or confirmatory of broader powers.

That entry confers the Parliament the power to make laws with respect to "citizenship, naturalisation and aliens".

Also read: Transformations in Indian citizenship: Tryst with arbitrariness

This is the first known instance where a court has opined that the source of power for the Parliament is not Part II of the Constitution. However, the second opinion authored by Justice Surya Kant takes a different view on the interpretation of Article 11.

"The second important aspect of Article 11, which lends support to this conclusion, is that it grants the Parliament the power to make 'any' provision regarding citizenship. A critical amendment to the text of the draft Article 11 further fortifies this conclusion. Initially, the draft Article granted Parliament the power to make 'further provisions'.

"However, during a session of the Constituent Assembly on April 29, 1947, the President of the assembly argued that the word 'further' might imply that the Parliament should only make provisions in continuation of other Articles in Part II. Consequently, the word 'further' was replaced with 'any'. This amendment highlights the framers' intention to afford the Parliament nearly unrestricted flexibility in crafting laws pertaining to citizenship."

Thus, the second opinion refers to the history of amendments to Article 11 to find that the source of power to make Citizenship laws is the Article, and on that basis concludes that the Parliament has 'nearly unrestricted flexibility' in crafting laws pertaining to citizenship. In other words, the second opinion confers broader powers to the Parliament than the first opinion.

It is worth noting that the first opinion acknowledges the above amendments in coming to a different conclusion. However, the judgment is unanimous in applying the scrutiny of Part III of the Constitution as against Section 6A of the Citizenship Act.

Therefore, when examining the constitutionality of Section 9(1) of the Citizenship Act (barring dual citizenship), it has to withstand the scrutiny of the provisions of Part III. For example, Article 13 makes 'void' any laws made to the extent of inconsistency with the rights conferred under Part III.

Clearly, Section 9, by divesting an Indian of his citizenship of the country (merely upon voluntary acquisition of foreign citizenship), both takes away and abridges the rights conferred under Part III of the Constitution. Assuming the application of Section 9 is made void at least against born citizens, that would be the precise nature of dual citizenship that is being sought.

Also read: "Free immigration and a welfare state cannot coexist," Vijay Hansaria on Day 2 of Section 6A hearings

Section 9 needs to withstand scrutiny of various other provisions of Part III. For example, State interest would be examined closely in removing Indian citizenship (in the modern era of mobility) merely by someone acquiring citizenship of foreign countries (without significantly more criminal conduct) not hostile to India.

This question will be scrutinised given the fact that citizenship protections are important only for those that engage actively with India (as is evidently happening now with diaspora), while the State is given significant leeway in formulating and enforcing laws against highly undesirable conduct (whether within or outside of India).

The second opinion further lays down the important point on what citizenship is at an elemental level:

"The trans-national comparison examined above aids us by providing three definite conclusions. First, globally, citizenship can be conceptualised as the right to be a member of society.

"In that sense, citizenship is essential to one's identity since it determines whether that person would be perceived as an alien or as 'one of us'. This is particularly true given the historical context of the partition and subsequent relations among the nations and people in our subcontinent.

"In addition to such identification by fellow members of society, citizenship is also a key determinant in enabling an individual to achieve their aims and objectives; since citizenship grants access to certain exclusive rights in society. Additionally, citizenship provides a sense of belongingness and esteem, apart from furthering the self-actualisation needs of individuals.

"Collectively, citizenship provides an 'identity' to individuals, which has a significant impact on the quality of their lives and their individual psyche."

In other words, Section 9(1) of the Citizenship Act will need to be examined from the perspective of terminating the right of an Indian to be a member of Indian society (merely upon acquiring foreign citizenship). Similarly, Section 9(1) will need to be examined from the perspective of removal of Indian identity and also of the diaspora members for a non-criminal (even if voluntary) act.

In the next part, we will examine in further detail whether Article 9 somehow empowers the Parliament to divest an Indian or their citizenship merely upon acquisition of foreign citizenship.