By Aditya Vikram Sen

Abstract: 

Last year, the Supreme Court, In re: Section 6A of the Citizenship Act, 1955, upheld the constitutionality of Section 6A of the Citizenship Act, 1955 by a 4:1 majority. The dissenting opinion rendered by Justice Pardiwala deployed the doctrine of temporal unreasonableness to argue that the provision has outlived its purpose and thereby ought to be rendered unconstitutional, consequently stressing the need for legislation to evolve in light of the changing socio-political realities. This Article critically analyses the usage of this doctrine and its conflation with the doctrine of manifest arbitrariness by tracing the jurisprudence of the latter in Indian Constitutional Law. Further, the dissent fails to take into account the historical and geopolitical circumstances in which the provision was enacted, which is a long-term solution to deal with the large influx of immigrants from East Pakistan to Assam. Finally, this article contends that the application of the doctrine of temporal unreasonableness is questionable given that the classification under Section 6A is still relevant to its legislative object. 

Introduction:

Section 6A of the Citizenship Act, 1955 came into effect in 1985 to implement the Assam Accord, the agreement between the Union government and protesting organisations calling for the expulsion of illegal migrants. The decision has been lauded as a landmark ruling for various reasons. For the first time, the court undertook an in-depth analysis of the constitutional definition of citizenship. This is the first examination of the right to culture as outlined in Article 29 of the Constitution, which was pitted against the interpretation of fraternity. This is also the first examination of the interrelationship between the right to vote and citizenship in considerable depth. Lastly, as stated by Shadan Farasat, this is the first time in the recent past that the doctrine of temporal unreasonableness has been deployed, albeit a ‘a sharply reasoned dissent’ rendered by Justice Pardiwala to strike down the impugned provision. This Article seeks to analyse Pardwiala J’s implementation of temporal unreasonableness vis a vis manifest arbitrariness to argue the questionable nature of application in this case.

A Brief Overview of the Dissent

According to Justice Paridwala, the doctrine of temporal unreasonableness emanates from the Latin maxim “Cessante ratione legis cessat ipsa lex,” which means that when that reason is the soul of the law and when the reason of any particular law ceases, so does the law itself. The essence of the dissent is premised on the principle of ‘temporal triggers’ to argue that a law or practice was viable and consented to at a particular point does not bar the court from subsequently declaring it arbitrary or unconstitutional. The court, while using different phraseologies, has applied this principle in multiple cases in the past. For instance, the court in  John Vallamattom v Union of India (2003) struck down Section 118 of the Indian Succession Act, which prohibited Christians from bequeathing their property for religious purposes. In Anuj Garg v Hotel Association of India (2007), the Supreme Court struck down a pre-Constitution law that barred women from being employed in settings where liquor was consumed. Most recently, this principle was used by Chandrachud CJ while analysing the legislative intent behind Article 370, calling it to be ‘an interim arrangement’ based on ‘the special conditions in the state.’  Paridwala’s dissent emphasizes the need for accommodating temporal limits to the objective of the law. One of the primary rationales of the dissent is that the phraseology of the provision is counterproductive to its object, which is speedy and effective identification of foreigners of the 1966-71 stream, their deletion from the electoral rolls, registration with the registering authority, and conferring of regular citizenship. Further, the object of Section 6A (3) of the Citizenship Act was never meant to maintain the status quo regarding the immigrants of the 1966-71 stream but en-masse deletion of this category of immigrants from the electoral rolls, following which they were to be granted de-jure citizenship after a ten-year cooling period. Further, temporal limitations on the applicability period are an objective inherent in the framework of Section 6A, Foreigners Act, 1946, and other related provisions. For instance, Paragraph 3(14) of the Foreigners (Tribunal) Order, 1964, mandates the disposal of cases referred to it within 60 days. Additionally, a closer reading of Section 6A indicates that at all stages save the initial detection phase, the execution mechanism of Section 6A is constrained by defined time boundaries. This is a consequentialist line of reasoning wherein the law is affected by evolving socio-political circumstances. Justice Pardiwala argues that the classification of immigrants pre-1966 and during the 1966-71 period cannot be said to be relevant to the object of Section 6A, and allowing it to operate would amount to taking a ‘one-sided’ and isolated viewpoint on the historical circumstances around the enactment of Section 6A. The judgment not only refers to the absence of temporal limits as arbitrary but also opposes its indefinite application. In this regard, the dissent relies on Independent Thought v. Union of India, emphasizing that “if times and situations change, so must views, traditions, and conventions” (para 132). The dissent also highlights the phraseology of Section 6A (3) to show the creation of a differential application to similarly placed individuals, thereby neither serving the purpose of providing citizenship to the immigrants belonging to the 1966-71 category nor their removal from the electoral rolls.

Analysing The Doctrine of Temporal Unreasonableness vis a vis Manifest Arbitrariness

One of the primary issues with the dissent is its argument of accommodating temporality within manifest arbitrariness by referencing Joseph Shine v. Union of India to assert that a provision is manifestly arbitrary, “outlives its purpose,” and doesn’t “square with today’s constitutional morality.” Notably, the context wherein the test was applied in Joseph Shine is very different from that of Section 6A. The impugned provision in Joseph Shine criminalising adultery, i.e., Section 497 IPC, was a relic of the colonial era, and its ostensible object is contrary to the tenets of equality embedded in the Constitution, which was subsequently enacted and struck down in light of the evolving societal morality. However, Section 6A was a ‘legislative compromise’ having a short-term objective, as discussed in the judgment, that was brought into force post the colonial era in a vastly different social and geopolitical scenario of refugee influx and protests calling for the expulsion of illegal migrants.

Further, in Navtej Singh Johar v. Union of India, the court differentiated between constitutional morality and societal morality, wherein it stated that the latter is based on “popular perceptions existent in society,” whereas the former implies that rights conferred by a statute ought to be based on the “text and spirit of the Constitution,” and is static as opposed to societal morality which is changing and may evolve with time. Thus, any archaic law, such as those which are products of colonial and patriarchal thought, is liable to be struck down on the grounds of unreasonableness if not in consonance with constitutional morality.

Further, the dissent suggests the doctrine of temporal unreasonableness as the third prong in the test of manifest arbitrariness under Article 14. This is contrary to the Electoral Bonds judgment, wherein the court streamlined the broad scope of the test of manifest arbitrariness by enunciating a two-pronged test: (i) to see if the provision lacks an adequate determining principle and is not in consonance with constitutional values and (ii) if the provision does not make a classification recognising the varying degrees of severity/harm.

Conclusion: Challenges in the Applicability of the Doctrine of Temporal Unreasonableness in The Current Context

As noted by Chief Justice Chandrachud, the object of Section 6A (3) was not just to deal with immigrants in the 1966-71 period but to provide a “long-term solution” to deal with the large influx of immigrants from East Pakistan to Assam. The object of the provision ought to be construed in relation to the circumstances of the Indian policy on migration post-independence and the Assam Movement. The dissent also fails to note that the detection process, as discussed by the majority is complex and necessitates the State to establish infrastructure and manpower for its execution. Thus, the object of Section 6A (3) cannot be regarded to be only the timely detection of the migrants of the 1966-71 stream. Consequently, as noted by Chandrachud CJ, given that the process of identification and conferring citizenship is a lengthy procedure spanning decades, invalidating the impugned provision would disregard the purpose and context of the provision. Therefore, it may be concluded that the doctrine of temporal unreasonableness cannot be argued to be applicable wherein the classification continues to be apposite to the object of the provision.

Author’s Bio: Aditya Vikram Sen is a third-year law student currently pursuing B.A LL. B (Hons.) from Jindal Global Law School, Sonipat. His interests lie in exploring the intersectionality in Constitutional and Criminal Law. 

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