Case BriefsForeign Courts

Supreme Court of The United States: In a landmark decision affecting the immigrants in the United States of America, the 9 Judge Bench of the Court headed by John G. Roberts, CJ., with a ratio of 5:4 held that, the Department of Homeland Security’s decision to rescind the immigration relief program known as Deferred Action for Childhood Arrivals (hereinafter DACA) can be judicially reviewed under the Administrative Procedure Act by the Supreme Court.

The Court further held that the DHS’ decision to rescind DACA is arbitrary and capricious. The majority included John Roberts, CJ., Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor, JJ.

In 2012, the DHS introduced a memorandum announcing the DACA, an immigration relief program which allowed certain unauthorized aliens who arrived in the United States as children to apply for a two-year forbearance of removal. Those granted such relief become eligible for work authorization and various federal benefits. Some 700,000 aliens have availed this relief. However, during the early presidential years of Donald Trump (current President of the USA); the DACA was rescinded citing legal flaws. In 2017 the DHS clarified that it would no longer accept new applications, but existing DACA recipients whose benefits were set to expire within six months could apply for a two-year renewal. For all other DACA recipients, previously issued grants of relief would expire on their own terms, with no prospect for renewal. The rescission was challenged on the grounds of arbitrariness; violation of Administrative Procedure Act and infringement of the guarantee of equal protection under the Fifth Amendment’s Due Process Clause. The Government contended that DACA Memorandum is a general non-enforcement policy; hence the rescission of the same will not be reviewable under the Administrative Procedure Act (APA). 

Scrutinizing various legal aspects surrounding the issue, the majority observed that the DACA did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. Additionally, by virtue of DACA, 700,000 recipients may request work authorization and are eligible for Social Security and Medicare. Access to such benefits is an interest for which courts often are called to protect; therefore the rescission is subject to review under the APA.

It was further observed that when the Attorney General determined that the DACA is illegal, it was the DHS’ responsibility to best address the determination which involved important policy choices and providing sufficient explanation for the decision to rescind DACA. However, the Attorney General’s conclusion regarding the illegality of DACA was seen as sufficient reason to rescind both benefits and forbearance, without explanation. Thus, absence of a ‘reasoned analysis’ itself renders the rescission as arbitrary. Moreover, the Government failed to adhere to the principle of ‘legitimate reliance’ on the DACA Memorandum. It was observed that, “DHS has flexibility in addressing any reliance interests and could have considered various accommodations. It was required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns. Its failure to do so was arbitrary and capricious”.

Samuel Alito, Brett Kavanaugh, Clarence Thomas and Neil Gorsuch, JJ., delivered the dissenting opinion. They observed that the majority opinion is an effort to avoid a politically controversial but legally correct Government decision. [Department of Homeland Security v. Regents of the University of California, 591 US (2020), decided on 18-06-2020]

OP. ED.

Articles 10[1] and 11[2] of the Constitution of India permits Parliament to make provisions in the matters of citizenship. Using this power Parliament had enacted the Citizenship Act, 1955 and a special law for Assam titled the Immigrants (Expulsion from Assam) Act, 1950.

There was a massive influx of illegal immigrants from Bangladesh (formerly East Pakistan) into the State of Assam. This lead to social and political conflict in the border State of Assam. In 1985, Assam Accord was signed between the Government and leaders of Assam agitation. It brought the first amendment of the Citizenship Act[3] and thereby Section 6-A was inserted in the Act.

Section 6-A divided the illegal immigrants of Indian origin (i.e. those whose parents or grand-parents were born in undivided India) into three groups:

  1. Those who entered into the State before 1966 were deemed to be the citizen of India.
  2. Those who entered into the State between 1966 to 25-3-1971 (official date of announcement of the Bangladesh war) were deemed to be citizens but their names were deleted from the electoral rolls. This was done because the political parties in order to increase their vote bank were giving citizenship arbitrarily to every immigrant without NRC (National Register of Citizens).
  3. Those who entered into the State after 1971 were to be detected and deported in accordance with the law.

To detect the illegal immigrants in the State of Assam, Parliament passed the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), two years before the Assam Accord. Under the Act the Government framed the Illegal Migrants (Determination by Tribunals) Rules, 1984 (IMDT Rules). The Act and the Rules taken together, made some departure from the procedure under Foreigners Act, 1946 and Foreigners (Tribunals) Order, 1964 which was applicable for whole India.

IMDT Act and Rules were challenged before the Supreme Court in Sarbananda Sonowal v. Union of India[4] and the Court held the Act and the Rules to be unconstitutional. Thereafter, the Tribunals under IMDT Act ceased to function and statutory regime reverted to Section 6-A of the Citizenship Act, the Foreigners Act and the Foreigners (Tribunals) Order.

Section 6-A of the Citizenship Act was challenged before the Supreme Court in Assam Sanmilita Mahasangha v. Union of India[5]. A two-Judge Bench of the Supreme Court (Justice Ranjan Gogoi and Justice R.F. Nariman) framed 13 questions of law and passed it to Constitution Bench under a referral order under Article 145(3)[6]. The first issue raised in the referral order is:

Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6-A of the Citizenship Act inasmuch as Section 6-A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4(2) read with Article 368(1)?

Under Article 6 of the Constitution, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India if he, or either of his parents or any of his grandparents, was born in undivided India and in addition, has fulfilled either of the following two conditions:

  1. in case he migrated to India before 19-7-1948[7], he had been ordinarily resident in India since the date of his migration; or
  2. in case he migrated on or after 19-7-1948, he had been registered as a citizen of India.

A person could be so registered only if he had been resident in India for at least 6 months preceding the date of application for registration.

The migration envisaged in Article 6 only means coming to India from outside and it must have taken place before, and not after the commencement of the Constitution.

Section 6-A of the Citizenship Act provides cut-off date for the entry into the State of Assam different from that provided in Article 6 of the Constitution. Thus, there posed a conflict between Article 6 and Section 6-A as Section 6-A is said to be contradictory to Article 6.

The main point to be considered is that whether Articles 10 and 11 of the Constitution empowers Parliament to make provisions contrary to the provision of the Constitution without an amendment to the constitution itself.

Section 6-A was inserted by an amendment to the Citizenship Act but there was no amendment of the Constitution w.r.t. variation of Article 6 for the enforcement of Section 6-A.

Articles 2 and 3 of the Constitution states about the territory. If we go by literal interpretation of the word “territory” it means the geographical area under the jurisdiction of a sovereign State. State includes both territory as well as population. Any law made for a territory is directly related to the people residing over the territory. There can be no existence of a territory without the existence of living flesh in that territory. Thus, it may be said that territory does not only include the land but it consists of all living creatures residing in the territory.

A territory is a combination of both land and living creatures residing over there. Article 6 provides for rights of the citizenships of certain persons who have migrated to the territory of India from the territory now included in Pakistan. Articles 2 and 3 talks about territory w.r.t. land. As territory includes both land as well as living creatures, it can be said that Article 6 stands on the same footing as Articles 2 and 3.

Since Articles 2 and 3 are immunised from the constitutional amendment under Article 368(1)[8] by virtue of Article 4(2) then Article 6 shall also come under the scope of Article 4(2) and shall be immunised from the amendment under Article 368(1) of the Constitution. If this interpretation is true it may be said that Article 6 of the Constitution need not to be amended and no such law made thereunder shall be deemed to be an amendment of the Constitution.

Section 6-A of the Citizenship Act may be said to be an expansion of the Article 6 of the Constitution considering the socio-economic conditions of the country. And in enforcement of Section 6-A there is no requirement of the amendment of the Constitution.

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*Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1.

Ekta Rai is a first year student at National University of Study and Research in Law, Ranchi.

[1]  Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.

[2]  Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to acquisition and termination of citizenship and all other matters relating to citizenship.

[3]  Citizenship (Amendment) Act, 1986.

[4]  (2005) 5 SCC 665.

[5]  (2015) 3 SCC 1.

[6] The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.

[7]  On this date, the influx from Pakistan (Control) Ordinance introduced a permit system to control the admission into India of persons from West Pakistan.

[8]  Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.