SARBANANDA SONOWAL v. UNION OF INDIA AND ANR

Citation: [2005] SUPP. 1 S.C.R. 472

Court: Supreme Court of India

Bench: R.C. LAHOTI, G.P. MATHUR, P.K. BALASUBRAMANYAN

Case summary

SARBANANDA SONOWAL v. UNION OF INDIA AND ANR.pdf

Judgment text

SARBANANDA SONOWAL v. UNION OF INDIA AND ANR. JULY I2, 2005 I [R. C. LAHOTI, CJ. , G. P. MATHUR AND P. K. BALASUBRAMANYAN, JJ. ] Jllegal Migrants (Determination by Tribunals) Act, 1_983: Jllegal Migrants (Determination by Tribunals) Rules, 1984: Constitution of India, 1950-Articles 14 and 355: Act and Rules made applicable only to the State of Assam with overriding effect over Foreigners Act-For the purpose ofeffective delection D . and deportation of il!

egal migrants-Jn the rest of the Country Foreigners Act and Rules thereunder applicable-Constitutional validity pfthe Act and the Rules challenged-Held: the Act and the Rules are ultra vires the Constitution-Procedure under Foreigners Act was far more effective in detection and deportation ofillegal migrants than the impugned Act-Rather it is so made as to give advantage to the illegal migrants and not for achieving the real objective of the enactment-The provisions negate the constitutional mandate under Article 355-Applicability of the Act to the State of Assam alone, having no rational nexus with the policy and object ofthe Act, is violative ofArticle 14-The Act has stripped Central Government of its power to remove illegal migrants provided under Foreigners Act, Immigrants (Expulsion from Assam) Act, Passport (Entry into India) Ac/- Tribunals constituted under the Act will cease to function and the cases pending before it would be transferred to Tribunals constituted under Foreigners Act-Passport (entry Into India) Act, 1920-Foreigners Act, 1946-Foreigners (Tribunals) Orders, 1964-Immigrants (Expulsion from Assam) Act, 1950-Passport Act, 1967-Citizenship Act, 1955-Section 6A- Evidence Act, 1872-Section 106.

Words and Phrases: 'Aggression '-Meaning of in the context of Constitution of India. SARBANANDA SONOWAL v. U. 0. 1. 473 Illegal Migrants (Determination by Tribunals) Act, 1983 and Illegal Migrants (Determination by Tribunals) Rules, 1984 were made applicable to the State ofAssam with the professed aim of making detection and deportation of illegal migrants residing in the State of Assam. Writ Petition u/A 32 of the Constitution of India was filed by way of Public Interest Litigation seeking declaration ofcertain provisions of the Act as ultra vires the Constitution of India and declaration of Rules, as ultra vires the Constitution and also u/s 28 of the Act and also sought declaration that Foreigners Act, 1946 and Rules made thereunder shall apply to the State of Assam. Allowing the Petition, the Court HELD: I. I. The provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) are ultra vires the Constitution of India.

The Illegal Migrants (Determination by Tribunals) Rules, 1984 are also ultra vires and are struck down. (542-C; 543-A) 1. 2. The procedure under the Foreigners Act and also under the Fortigners (Tribunals) Order, 1964 is far more effective in identification and deportation of foreigners as compared to the procedure under the IMDT Act and the Rules made thereunder. There being no corresponding provision like Section 9 of the Foreigners Act which places the burden of proof upon the person concerned who claims to be an Indian citizen, which is absolutely essential in relation to the nature of inquiry being conducted regarding determination ofa person's citizenship (where the facts on the basis of which an opinion is to be formed and a decision is taken are entirely within the knowledge of the said person) has made the task of the law enforcement agencies of the State not only difficult but virtually impossible.

The IMDT Act has been so enacted and the Rules thereunder have been so made that innumerable . and unsurmountable difficulties are created in the matter of identification and deportation ofillegal migrants. The application ofthe IMDT Act and the Rules made thereunder in the State of Assam has created the biggest hurdle and is the main impediment or barrier in identification and deportation of illegal migrants. On the contrary, it is coming to the advantage ofsuch illegal migrants as any proceedings initiated against them under the said provision which almost entirely ends in their favour, enables them to have a ~ocument having official sanctity to the effect that t~y are not mega\ migrants. (529-A-F) · 1. 3. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen ofa particular country.

In order to establish one's citizenship, normally he may be required to give evidence of(i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Some times the place of birth of his grand parents may also be relevant like under Section 6-A(l)(d) of the Citizenship Act. If the State authorities dispute the clai"! ofcitizenship by a person and assert that he is a foreigner, it will not only be difficult. but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge ofany person, the burden of proving that fact is upon him. Though in a criminal case the general rule is that the burden of proof is on the prosecution but if any fact is especially within the knowledge ofthe accused, he has to lead evidence to prove the said fact. [505-G-H; 506-A-B] Shambhu Nath Mehra v.

The State of Ajmer, ·AIR (1956) SC 404; Collector ofCustoms, Madras v. D. Bhoormull, AlR {1974) SC 859; State of West Bengal v. Meer Mohd. Umar, [2000J 8 SCC382; ~anjai@ Kaka v. State, (NCT ofDelhi), (2001] 3 SCC 190 and Ezhil v. State ofTamil Nadu, AIR (2002) SC 2017, relied on. R.. v. Oliver, [1943] All ER 800 and R. v. Turner (1916) 5 Mand S 206 14 Digest 430; Williams v. Russel (1993) 149 LT 190; referred to. 1. 4. IMDT Act cannot be said to be providing a very fair procedure for determining whether a person is an illegal migrant or not. The Screening Committee does not consist of any judicial member but is manned by the executive. The same is the case with the Competent Authority. But the Screening Committee or the Competent Authority have the power to reject an enquiry at the threshold by not making a reference to the Tribunal. The figures supplied in the affidavits show that more than 85 per cent of the enquiries were rejected in this manner. [520-B, C, DJ 1. 5.

Realising the serious law and order problem created by migration from East Pakistan and the serious situation arising therefrom Immigrants (Expulsion from Assam) Act, 1950 was enacted and conferred very wide powers upon the Central Government to direct removal ofany person outside India. However, on . account of Section 4 of the IMDT Act the 1950 Act has been superseded and the provisions ofthe said Act have ceased to apply to the State of Assam. Thus by enacting the IMDT Act the Parliament has divested the Central Government ofthe power to remove migrants from Bangladesh, whose presence was creating serious law and order problem, which fact had been SARBANANDA SONOWAL v. U. 0. 1. 475 realized by the Central Government as early as in 1950. The IMDT Act instead ofmaintaining peace has only revived internal disturbance. [530-H; 531-A, BJ 1. 6. The provisions ofthe The Passport (Entry into India) Act, 1920 have been superseded by Section 4 of the IMDT Act. It has stripped the Central .

Government of its power of removal of such person from India and also the power ofarrest ofsuch person without warrant possessed by a police officer of the rank ofSub-Inspector or above. (531-C, H; 532-A] 2. 1. Provisions of the IMDT Act and the Rules made thereunder clearly negate the constitutional mand~te contained in Article 355 ofthe Constitution, where a duty has been cast upon the Union of India to protect every State against external aggressiOn and internal disturbance. The IMDT Act which contravenes Article 355 of the Constitution is, therefore, wholly unconstitutional and must be struck down. [532-B] 2. 2. The foremost duty of the Ce~tral Government is to defend the borders of the country, prevent any trespass and make the life of the citizens safe and secure. The Government has also a duty to prevent any internal disturbance and maintain law and order.

Article 355 of the Constitution of India deals with Duty ofthe Union to protect States against external aggressjon and internal disturbance. [522-D] Arthashastra by Kautilya translated by Shri L. N. Rangarajan, referred to. 2. 3. The word "aggression" is a word of very wide import. The word "aggression" is not to be confused only with "war". Though war would be included within the ambit and scope ofthe word "aggression" but it comprises many other acts which cannot be termed as war. "Aggression" is a word of very wide import having complex dimensions and would to a large extent depend upon fact situation and its impact. The word "aggression" is, therefore, an all comprehensive word having very wide meaning. Its meaning cannot be explained by a straight jacket formula but will depend on the fact situation of every case. The framers of the Constitution have consciously used the word "aggression" and not "war" in Article 355. (523-A-B-C] Kawasaki v. Bantahm S. S.

Company, (1938) 3 All ER 80 and Chae Chan Ping v. United States, 130 US 581, referred to. Introduction to International Law by J. G. Starke; Indian Journal of International Law Vol. 11 (1971) p. 724 and Essays on Modern Law of War by L. C. Green; Conflict through Consensus by Julius Stone (1977 Edn. ), reierred to. 2. 4. Presence of such a large number of illeg~I migrants froi:n Bangladesh, which runs into millions, is in fact an "aggression" on the State of Assam and has also contributed significantly in causing serious "internal disturbances" in the shape of insurgency ofalarming proportion making the life ofthe people of Assam wholly insecure and the panic generated thereby has created a fear psychosis.

This has resulted in seriously hampering the growth ofthe State ofAssam although it has vast natural resources as people from rest of the country have a general perception that it is a disturbed area and this factor has resulted in not generating any employment opportunity which has contributed to a large measure in giving rise to insurgency. The impact is such that it not only affects the State of Assam but it also affects its sister States like Arunachal Pradesh, Meghalaya, Nagaland, etc. as the route to the said places passes through the State of Assam. [S29-G-H; 530-A] 3. 1. Since the classification made whereby IMDT Act is made applicable only to the State ofAssam has no rational nexus with the policy and object of the Act, it is clearly violative of Article 14 of the Constitution and is liable to be struck down on this ground also. The influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of north-eastern region.

Their presence has changed the demographic character of that region and the local people of Assam have been·reduced to status of minority in certain districts. In such circumstances, if the Parliament had enacted a legislation exclusively for the State of Assam which p was more stringent than the Foreigners Act, which is applicable to rest of India, and also in the State of Assam for identification of such persons who migrated from the territory of present Bangladesh between 1st January, 1966 to 24th March, 1971, such a legislation would have passed the test of Article 14 as the differentiation so made would have had rational nexus with the avowed policy and objective of the Act. But the mere making of a geographical classification cannot be sustained where the Act instead of achieving the object of the legislation defeats the very purpose for which the legislation has be. en made.

For satisfying the test of Article 14, the geographical factor alone in making a classification is not enough but there must be a nexus with the objects sought to be achieved. Ifgeographical consideration becomes the sole criteria completely overlooking the other aspect of"rational nexus with the SARBANANDA SONOWALv. U. 0. 1. 477 policy and object of the Act" it would be open to the legislature to apply enactments made by it to any sub-division or district within the State and leaving others at its sweet will. This is not the underlying spirit or the legal principle on which Article 14 is founded. (533-G-H; 534-A-D) 3. 2. Even though an order may have been passed under the Foreigners Act against an illegal migrant, he gets a right to make a representation to the Central Government for making a reference to the Tribunal, which will then proceed in accordance with IMDT Act having a further right ofappeal to the Appellate Tribunal.

There being no provision like Section 9 of the Foreigners Act regarding burden of proof in the IMDT Act, the whole complexion of the case will change in favour of the illegal migrant. This right is not available to any other person similarly situated against whom an order under the Foreigners Act may have been passed, if he is in any other part of India other than the State of Assam. (529-B) Budhan Chaudhry v. State ofBihar, AIR (1955) SC 191; D. P. Joshi v. State of Madhya Bharat, AIR (1955) SC 334; Kishan Singh v. State of Rajasthan, AIR (1955) SC 795; Gopi Chandv. Delhi Administration AIR (1959) SC 609; Kangshari Haldar v. State ofWest Bengal, AIR (1960) SC 457 and Clarence Pais v. Union ofIndia, (2001) 4 SCC 325, referred to. (532-D, F-G) 4.

In a criminal trial where a person is prosecuted and punished for commission ofa crime and may thus be deprived of his life or liberty, it is not enough that h~ is prosecuted in accordance with the procedure prescribed by law but the procedure should be such which is just, fair and reasonable. This principle can have no application here for the obvious reason that in the matter of identification ofa foreigner and his dt:Jlortation, he is not being deprived of his life or personal liberty. The deportation proceedings are not proceedings for prosecution where a man may be convicted or sentenced. The Foreigners Act and the Foreigners (Tribunals) Order, 1964 are applicable to whole of India and even to the State of Assam for identification of foreigners who have entered Assam between lst January, 1966 and 24th March, 1971 in view of the language used in Section 6-A of Citizenship Act.

It is, therefore, not open to Union oflndia or State of Assam or for that matter anyone to contend that the procedure prescribed in the aforesaid enactment is not just, fair and reasonable and thus violative of Article 21 of the Constitution. The procedure under the Foreigners Act and the Foreigners (Tribunals) Order, 1964 is just, fair and reasonable and does not offend any constitutional provision. (535-F-H; 536-A-B) 5. It cannot be said that aliens also possess several rights and the procedure for their identification and deportation should be detailed and elaborate in order to ensure fairness to them. The Bangladeshi nationals who have illegally crossed the border and have trespassed into Assam or are living in other parts of the country have no legal right of any kind to remain in India and they are liable to be deported. [536-C; 539-F] Louis De Raedt v. Union of India, (1991) 3 SCC 554 and State of Arunachal Pradesh v. KhudiRam Chakma, (1994) Supp. SCC 615, relied on.

[539-A, CJ Rex v. Bottrill, (1947) 1 K. B. 41; Attorney-Genera/for Canada v. Cain, (1906) AC 542; Chae Chan Ping v. United States, (193~) U. S. 581; Fong Yue Ting v. United States 149 U. S. 698 and Nishimura Ekiu v. United States, 142, 652, referred to. (537-C, D, F; 538-A, F) Introduction to International Law by J. G. Starke (1st Indian re-print 1994) Chapter 12 (page 348); Oppenheim 's International Law (Ninth Edn. 1992 - 400, 401 and 413, referred to. (536-C, HJ 6. It cannot be said that vires ofa special statute seeking to make some provisions or some defined object cannot be challenged by comparing its provisions with a general statute covering the field. The principle has no application to the fact situation of the present case. The contention of the petitioner is not that merely because the provisions of the IMDT Act provide many safeguards to an alleged illegal migrant in comparison to the Foreigners Act the IMDT Act is ultra vires.

The contention is that as the Statement of Objects and Reasons show that the influx of foreigners who illegally migrated into India across the borders' of the sensitive Eastern and North-Eastern regions of the country and have remained in the country, pose a threat to the integrity and security of the said region and further. their continuance in India has given rise to serious problems and also the clandestine manner in which these persons are trying to pass off as citizens of India has rendered their detection difficult and there being need for their speedy detection and the interest of general public, a classification was made on geographical basis whereby the Act was enforced only in the State of Assam in supersession to the Foreigners Act. But the Act so made contains such provisions and prescribes such procedure that it has become virtually impossible to detect and deport a foreigner which is evident from the statistical data furnished by the respondent themselves.

The basis of differentiation. has thus no nexus with the object sought to be achieved and, therefore, the classification made for SARBANANDA SONOWAL v. U. 0. 1. 479 application of IMDT Act to·the State of Assam violates Article 14 and is consequently liable to be struck down. (539-G; 540-B-E] The Special Courts Bill, (178) AIR (1979) SC 478 and A. R. Antulay v. R. S. Nayak, AIR (1988) SC 153, referred to. 7. Section 8 of the IMDT Act is not similar to Section 9 of the Citizenship Act. Section 9 of the Citizenship Act applies to a situation where the question is whether an Indian citizen has lost his citizenship by acquiring the citizenship of a foreign country. Such a question can be decided only by the Central Government. The present case is concerned with identification and deportation ofsuch Bangladeshi nationals who have illegally crossed the international border and have taken up residence in Assam.

The question of loss of Indian citizenship on account of acquisition ofcitizenship of another country does not at all arise for consideration here. [540-F-G] 8. Article 51-A(d) of the Constitution says that it shall be the duty of every citizen oflndia to defend the country and render national service when called upon to do so. Ifan Act made by legislature has the disastrous effect of giving shelter and protection to foreign nationals who have illegally transgressed the international border and are residing in India and further the Act is unconstitutional, any citizen is entitled to bring it to the notice of the Court by filing a writ petition under Article 32 of the Constitution. (541-C-DJ Dr. D. C. Wadhwa v. State ofBihar, AIR (1987) SC 579 and R. K. Garg v. Union ofIndia, AIR (1981) SC 2138, followed. (541-E; 542-A) -t Prof Yashpal and Anr. v. State ofChhattisgarh, JT (2005) 2 SC 165, relied on. [542-B] S. P. Guptav. Union ofIndia, (1981) Supp. SCC 87, referred to. [541-A] 9. 1.

The Tribunals and the Appellate Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall cease to function. The Passport (Entry into India) Act, 1920, the Foreigners Act, 1946, the Immigrants (Expulsion from Assam) Act, 1950 and the Passport Act, 1967 shall apply to the State ofAssam. All cases pending before the Tribunals under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided in the manner provided in the Foreigners Act, the Rules made thereunder and the procedure prescribed under the Foreigners (Tribunals) Order, 1964. [542-C-E) 9. 2.

It will be open to the authorities of the Central Government or State Government to initiate fresh proceedings under the Foreigners Act against all such persons whose cases were not referred to the Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 by the competent authority whether on account of the recommendation of the Screening Committee or any other reason whatsoever. The appeals pending before the Appellate Tribunals shall be deemed fo have abated. (542-F, GJ 9. 3. The respondents are directed to constitute sufficient number of Tribunals under the Foreigners (Tribunals) Order, 1964 to effectively deal with cases of foreigners, who have illegally come fro_m Bangladesh or are inegally residing in Assam. (543-EJ CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 131 of2000. (Under Article 32 of the Constitution of India). ' Ashok H. Desai, Uday U. Lalit, Ms. Niti Dikshit, Prateek Jalan, Prashant Kumar with them for the Petitioner.

Amarendra Sharan, Additional Solicitor General, K. K. Venugopal, M. N. Krishnamani, Amit Bhandari, Ashok Bhan, Navin Prakash, Ms. Rekha Pandey, Ms. Purnima Bhat Kak, A. Subba Rao, Gaurav Aggarwal, Manish Tiwari, P. Panneswaran, Ms. Sushama Suri, D. S. Mahra, Mrs. Anil Katiyar, S. B. Upadhay, (NP}, Ms. Neelam Shanna, Tara Chandra Shanna, Ajay Shanna, Rupesh Kumar, Tarun Shanna, Ms. Seema Bengani, Rituraj Biswas, Gopal Singh, Ms. Hemantika Wahi, Ms. Sadhna Sandhu, Mrs. Monika Bapna, Shakil Ahmed Syed, V. K. Sidharthan, J. R. Luwang, Atul Kumar, Anil Srivastava, Saurabh Srivastava, Ranjan Mukherjee, Azim H. Laskar, Anil K. Chopra, Abhijit Sengupta, Manish Goswami, Sanjib Goswami, U. Hazarika and Ms. Sumita Hazarika with them for t the Respondents. The Judgment of the Court was delivered by G. P. MATHUR, J. I.

This writ petition under Article 32 ofthe Constitution of India has been filed by way ofpublic interest litigation for declaring certain provisions of the Illegal Migrants (Detennination by Tribunals) Act, (Act No. 39of1983) 1983 as ultra vires the Constitution oflndia, null and void and consequent declaration that the Foreigners Act, 1946 and the Rules made thereunder shall apply to the State of Assam. The second prayer made is to declare the Illegal Migrants (Detennination by Tribunals) Rules, 1984 as ultra vires the Constitution of India and also under Section 28 of the aforesaid Act and, therefore, null and void. Some more reliefs have been claimed which will be referred to at the appropriate stage. The respondents to the writ petition are the Union of India and the State of Assam. 2. The case set up in the writ petition is that the petitioner is a citizen of India and is ordinarily resident in the State of Assam.

He is a former President of the All Assam Students Union, which is the largest non-political students organization in the State which was responsible for leading the students movement in Assam in the late 1970s and early 1980s. He is also a former Chainnan ofthe North East Students' Organisation, which is an umbrella organization of students' association from Assam, Meghalaya, Manipur, Nagaland1 Tripura and Arunachal Pradesh and has been actively involved in issues conteming the rights of the people of Assam including the question of illegal thigrants settled in the said State. The issues raised in the writ petition concern all residents in the State of Assam whose rights as citizens of India have been materially and gravely prejudiced by the operation of the Illegal Migrants (Determination by Tribunals) Act, 1983 (hereinafter referred to as "the IMDT Act").

The principal grievance of the petitioner is that the '' IMDT Act is wholly arbitrary, unreasonable and discriminates against a class of citizens of India, making it impossible for citizens who are residents in Assam to secure the detection and deportation of foreigners from Indian soil. The Foreigners Act, 1946, applies to all the foreigners throughout India, but the IMDT Act which was enacted subsequently with the professed aim of making detection and deportation of the illegal migrants residing in Assam easier has completely failed to meet even the standards prescribed in the Foreigners Act. That apart, even those provisions of the IMDT Act which afford some measure of protection to some genuine Indian citizens against illegal migrants are not being properly enforced due to extraneous political considerations in derogation of the rights of Indian citizens living in Assam.

The result of the IMDT Act has been that a number of non-Indians, who surreptitiously entered into Assam after March 25, 1971 without possession ofvalid passport, travel documents or other lawful authority to do so, continue to reside in Assam. Their presence has changed the whole character, cultural and ethnic composition of the area and the IMDT Act creates a situation whereunder it has become virtually impossible to challenge the presence of a foreigner and to secure his detection, deportation or even deletion of his name from the electoral list as they get protection on account ofthe provisions of the Act. According to the census figures, which have been given in the writ petition, the rate of growth of the population in Assam is far more than rest of India which shows that large number of foreigners have migrated to different areas of Assam and have settled there.

It is further averred that in t view of the problem of illegal migration of foreigners into Assam and their ;--- ~ continued presence therein, a State wide protest movement of students was organized which continued for a long period. As a result of the students' movement and ensuing negotiations, a memorandum of settlement dated 15th August, 1985 was entered into between All Assam Students' Union and the Union oflndia and the State ofAssam, which is commonly known as "Assam Accord". The terms of the Accord specifically provided that steps would be taken to detect and deport illegal migrants from Assam and it 1also contained clause that "the Government will give due consideration to certain difficulties expressed by AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983.

" The Accord further provided that foreigners who have entered into India after 25th March, 1971 will continue to be detected, their names deleted from the electoral rolls and they will be deported from India. In pursuance of this provision, the Citizenship Act, 1955 was. amended bY. Act No. 65 of 1985 and Section 6A was inserted with the heading "Special Provisions as to Citizenship of Persons covered by the Assam Accord. " It provides that the term "detected to be a foreigner" shall mean so detected under the Foreigners Act and the Foreigners (Tribunals) Order, 1964 framed thereunder.

Under the said provision a person of Indian origin as defined under Section 6-A(3) who entered into Assam prior to 1st January, 1966 a~d has been resident in Assam since then is deemed to be a citizen of India, However, if such a person entered into Assam between l st January, 1966 and before 25th March, 1971 and has been detected to be a foreigner under the Foreigners Act then he is not entitled to be included in the electoral list for a period of l0 years from the date of detection. This amendment of the Citizenship Act makes it clear that the, question of determination or detection of a foreigner is to be governed by the provisions of the existing Central legislation, viz. the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964. 'I 3.

It is further pleaded that after signing of the As~am Accord, several assurances were given and sta~ements have bee11 made by the Central Government that it is examining the failure ofthe IMDT Act regarding detection and deportation of foreigners and it is considering steps to repeal the Act. . A document was signed by Union Home Secretary and Chief Secretary of Assam-on 27th January, 1990 regarding preparation of a timeframe for classwise implementation of the Assam Accord and it was mentioned therein that · a decision on the repeal of the IMDT Act would be taken by 28th February, 1991. In a meeting held on 20th September, 1990 between Union Home Minister, Chief Minister of Assam and representatives of All Assam Students' Union, the student union reiterated their demand for repeal of the IMDT Act, which demand was noted and an assurance was given that the Central Government would initiate discussions with other political parties.

The Uni~n Home Minister in a meeting held on I Ith August, 1997, wherein the petitioner was also present in his capacity as President of the AASU, stated that the results achieved were extremely poor. It was decided therein that Home Minister would visit certain sectors of Indo-Bangladesh border to take. stock of the situation regarding illegal immigration and the inadequacy of the measures taken to prevent such immigration. Reference has been made to certain other meetings with the officers ofGovernment oflndia (Ministry of_ Home Affairs) on 6th April, 1998 and 23rd September, 1998 wherein it was informed that the repeal of the IMDT Act was under active consideration of the Government. It is averred in paragraph 5 (viii)(f) of the writ petition that the President of India in his address to the Parliament in February, 1999 said that the repeal ofthe Act was under active consideration of the Government.

A meeting was again held on 18th March, 1999 between the representatives ofthe Government of India and Government of Assam and also of All Assam Students' Union, wherein it was assured that the repeal of the ! MDT Act was under active consideration of the Central Government and measures would be taken to identify foreigners and steps will be taken to seal the border. Copies of the minutes of the meetings have been filed along with the writ petition. The difficulties created by . the provisions of the ! MDT Act due to which it has -become extremely difficult to identify an illegal migrant and pass a deportation order have also been enumerated in detail. Figures regarding the inquiries initiated since the enforcement of the Act in 1983 and total number of illegal migrants expelled have been given to which we will refer to later on.

It is also pleaded that a huge number of Bangladesh nationals who have crossed over to India, have occupied vast tracts of land in sensitive international border which has very serious implication for national security. 4. The Union of India filed a counter affidavit on 18th July, 2000, which has been sworn by Shri Jatinder Bir Singh, Director, Ministry ofHome Affairs. In paragraph 7 of this affidavit, it was stated that a proposal to repeal the IMDT Act is under consideration of Government oflndia. A copy ofthe reply given by Shri l. D. Swami, Minister of State in the Ministry of Home Affairs in the Rajya Sabha on 8th March, 2000 has been filed as Annexure R-2 to the counter affidavit, wherein the Minister .

had said that in the State of Assam Foreigners Tribunals under the Foreigners Act, 1946 are functioning for -, detection of illegal migrants, who had come to the State of Assam after 1st January, 1966 and up to 24th March, 1971 and the Illegal Migrants Determination Tribunals under the IMDT Act have been constituted for detection and deportation of illegal migrants, who had entered into India on or after 25~h March, 1971. The Hon'ble Minister had further stated that the Government is of the view that application of the IMDT Act to the State of Assam alone is discriminatory and a proposal to repeal the said Act is under consideration of the Government. A true copy of the latest status report filed by the Government in Writ Petition No. 125 of 1998, which has been filed seeking deportation ofall Bangladeshi nationals from India, has been filed as Annexure R-1 to the Counter Affidavit and paragraphs 3 to 7 of the said status report are being reproduced below : "3.

Continuing influx ofBangladeshi nationals into India has been on account of a variety of reasons including religious and economic. There is a combination of factors on both sides which are responsible for continuing influx of illegal immigration from Bangladesh. The important "Push Factors" on the Bangladesh side include: - (a) steep and continuous increase in population; (b) sharp deterioration in land-man ratio; (c) low rates of economic growth particularly poor performance in agriculture; The "Pull Factors" on the Indian side include: (a) ethni~ proximity and kinship enabling easy shelter to the immigrants; (b) porous and easily negotiable border with Bangladesh; (c) better economic opportunities; (d) interested religious and political elements encouraging immigration; 4. It is difficult to make a realistic estimate of the number?

f illegal immigrants from Bangladesh because they enter surreptitjously and are able to mingle easily with the local population due to ethnic and linguistic similarities. The demographic composition in the districts bordering Bangladesh has altered with the illegal immigration from Bangladesh. The districts of Assam and West Bengal bordering Bangladesh have recorded growth of population higher than the national average. The States of Meghalaya, Mizoram and Tripura have also recorded high rates of population growth. Illegal immigrants from Bangladesh have also been using West Bengal as a corridor to migrate to other parts of the country. 5. The large-scale influx of illegal Bangladesh immigrants has led to large tracts of sensitive international borders being occupied by foreigners. This has serious implications for internal security. 6.

The types of illegal migrants are as follows: {a) those who came with valid visa/documents and overstayed; (b) those who came with forged visa/documents; and (c) those who entered surreptitiously. 7. During talks between the Prime Ministers of India and Bangladesh in February, 1972, the Prime Minister of Bangladesh had assured the return ofall Bangladesh nationals who had taken shelter in India since March 25, 1971. Accordingly a circular was issued by the Government of India on 30. 9. 1972 setting out guidelines for aetion to be taken in respect ofpersons who had come to India from Bangladesh. According to this circular, those Bangladesh nationals who had come to India before 25 March 1971 were not to be sent back and those who entered India in or after the said date were to be repatriated.

" In paragraph 12 of the counter affidavit it is stated that "the basic objection of the petitioner is under consideration of the Central Government that the IMDT Act and the Rules made thereunder are not effective in comparison to the Foreigners Act, ! 946, which is applicable to the whole country except to the State of Assam. " In paragraph 18 of the counter affidavit it is stated that the administrative powers in respect ofthe IMDT Act have been delegated to the Government of Assam under Section 21 of the aforesaid Act. The second sub-paragraph of paragraph 18 and paragraph 19 of the counter affidavit are important and are being reproduced below :- "It is further submitted that the detection/expulsion of illegal migrants under the IMDT Act, has bee_n extremely dismal. According to the information furnished by the Government of Assam, the progress in respect ofdetection/expulsion of illegal migrants (those who entered Assam on or after 25. 3. 1971 upto 30. 4.

2000) is as follows: I Total number of enquiries initiated 3,10,759 2 Total number of enquiries completed 3,07,955 3 Total number of enquiries referred to Screening Committee 3,01,986 4 Total number of enquiries made by the Screening 2,98,465 Committee 5 Total number of enquiries referred to IM(DT)s 38,631 6 Total number ofenquiries disposed of by IM(DT)s 16,599 7 Total number of persons declared as illegal 10,015 migrants 8 Total number of illegal migrants physically 1,481 expelled 9 Total number. of illegal migrants to whom 5,733 expulsion order served ; 10 Total number of enquiries pending with Screenin~ 3,521 Committee 11 To. ta! number ofenquiries pending with the 22,072 Tribunal ;, in reply to para 9, it is submitted that the Chief Minister of Assam had requested the then Prime Minister vide his Jetter dated 22. 6. 96 regarding repeal of the ! MDT Act. The Chief Minister again reiterated for scrapping the IMDT Act, vide his Jetter dated 31. 7. 96 addressed to the Home Minister.

This view has been reconfirmed by the State Govt. vide its message dated 23. 4. 98. " In paragraph 22 of the counter affidavit it is stated that a proposal to repeal the IMDT Act is under consideration of the Government of India and in paragraph 24 it is stated that there is need for a uniform Act for detection and deportation of foreigners for the entire country including Assam. 5. The State of Assam filed a counter affidavit on 28th August, 2000, wherein· it is stated that the State Government has been persistently writing to the Central Government that the IMDT Act is operating against national interest inasmuch as in view of the stringent provisions in the IMDT Act regarding detection and deportation of foreigners, the illegal migrants whose presence are in lakhs in the State of Assam could not be deported. The State Government has thus been insisting upon the Central Government for repeal of the IMDT Act.

On account of unabated influx of illegal migrants from Bangladesh, a widespread movement started in Assam spearheaded by All Assam Students' Union (AASU) in the year 1978-79 demanding expulsion of such illegal migrants from Assam which as contended by the agitationists, not only threatened their own existence in their own State but also threatened security of the country. L~rge scale satyagrah, bandhs, dharnas, etc. were organized by AASU and All Assam Gana Sangram Parishad and the agitation got mass support from the people. After several rounds of discussion, a memorandum of settlement known as Assam Accord was signed on 15th August, 1985 which, amongst others, envisaged the provision for detection and deletion of name of foreigners from the electoral roll and also their deportation. Paragraph 8 of the counter affidavit, which has a bearing on the controversy in hand, is being reproduced below :- "8.

That it is pertinent to mention that there has been a sharp increase of the Muslim population in the Respondent/State in the last few decades. The statistical analysis of the sharp growth of Muslim population in Assam vis-a-vis Hindu population for the decades 1951-61, 1961- 71and1971-1991 is as follows: Assam Year Muslim Hindu 1951-1961 38. 37 33. 70 1961-1971 30. 99 37. 18 .. 1971-1991 77. 42 41. 89 (*Source Directorate of Census, Government of India) The chart given above clearly indicates that Muslim population of Assam has shown a rise of 77. 42% in 1971-1991, whereas Hindu population has risen by nearly 41. 89% during the said period. There are three Districts in Assam, which has borders with Bangladesh viz. Karimganj; Cachar and Dhubri. All India percentage ofdecadal increase in population during l9Sl-l 99 l is 23. 85% whereas in the Border districts of Assam namely, Karimganj shows decadal increase of42. 08%, Cachar district 47. 59% and Dhubri district 56. 57%.

From the above it can be assumed that the infiltration of foreigners from Bangladesh contributed significantly to the sharp increase of , population in Assam. " I ' In paragraph 9 of the counter affidavit, the major impediment in implementation of the IMDT Act have been pointed out in detail and it is also averred that the Act is discriminatory as it has been made applicable only to the State of Assam and not to other States like West Bengal, Tripura and Meghalaya, etc. which are facing similar problem of illegal migrants. Copies of several communications sent to the Government of India by the State of Assam requesting for repeal of the IMDT Act and also seeking appropriate amendment to the Citizenship Act, 1955, in order to declare the children of the illegal migrants entering into India after 1971 as foreigners, have also been filed. The difficulties in the implementation of the Act and the Rules have been pointed out which we will advert to later on.

It is further averred that despite repeated advertisements and serious efforts, the State Government has not been able to get qualified persons to fill in the vacant posts in the Tribunals. Figures as on 3lst March, 2000, of total number of inquiries initiated, total number of persons declared as illegal migrants and the number of persons physically expelled have been given. It is specifically pleaded that the IMDT Act is an ineffective piece of legislation and it is standing in the way of detection and deletion ofpost 1971 foreigners in Assam and, therefore, the same should be repealed. 6. However, on 8th August, 2001, the State of Assam moved I. A. No. 5 of 200 l praying that the State of Assam be permitted to withdraw the earlier affidavit filed on 28th August, 2000 and seeking permission to place on record a new affidavit.

In this affidavit it is averred that general elections were held in the State of Assam in May 2001 wherein the Congress government had come to power replacing the government headed by Assam Gana Parishad. The State Government in its Cabinet meeting held on 28th June, 200 l had reviewed the earlier affidavit and had obtained a legal opinion in the matter. It is further averred that "the affidavit filed by the former AGP led government does not reflect the correct position of law and hence a new affidavit is required to be filed. The State Government is of the opinion that the IMDT Act is constitutional and there is no question of either repeal or striking down of the Act.

" It is also averred that in the election manifesto of the Indian National Congress in the just concluded elections, it was specifically declared that the Act was introduced to save the Indian citizens from unnecessary harassment in the name of detection of foreigners and the Congress party is committed to oppose any move to repeal the Act. Apart from making a bald statement that the IMDT Act is not arbitrary or discriminatory and denial of the averment that it makes the task of securing the detection and deportation of foreigners impossible or that non-citizens are getting protection to the detriment of bona fide citizens of India, nothing specific is stated nor any specific statement made in the earlier affidavit or the facts and figures supplied therein have been controverted. A general statement is made that the State of Assam i~ making all steps for effective implementation of the IMDT Act and deportation of illegal migrants. - 7. The aforesaid I. A. No.

5 of 2001 came up for consideration before a Three Judge Bench presided by the then Chief Justice of India on 15th October, 2001 and the relevant portion of the order passed thereon is being reproduced below :~ "An application has been filed on behalf of the State of Assam seeking permission to file "a new counter affidavit". The application is supported by an affidavit of the Commissioner & Secretary, Home Department, Government of Assam. Mr. Kapil Sibal, learned senior counsel appearing for the State submits that he does not press prayer 'a' and that the affidavit which has been filed along with this application, may be treated as 'an additional affidavit'. Learned counsel appearing for other parties have no objection to that course being adopted. We, therefore, take on record the new affidavit as an additional affidavit filed on behalf of State of Assam and reject prayer 'a'. The application is allowed in above terms. Mr.

Ashok Desai, learned senior counsel prays for and is granted four weeks' time to file his response to the additional affidavit filed by the State. All other parties may also file their response, if any, within the same period, to the additional affidavit. List the writ petitions after four weeks before a three Judge Bench for further proceedings. " 8. The Union of India filed a counter affidavit sworn by Shri Jatinder Bir. Singh, Director, Ministry of Home Affairs, in reply to the additional affidavit of the State of Assam. It is averred therein that the matter of constitutional validity of the IMDT Act does not depend on political issues, but depends on facts and legal grounds. The relevant part of the opening part of the affidavit which has some relevance is being reproduced below :- "In this context, it is submitted that detection of illegal migrants, who belong to the same ethnic stock as Indians is not an easy task.

However, large-scale illegal migrants from Bangladesh have not only threatened the demographic structure of the area but have se~i~usly impaired the security of the nation, particularly in the present circumstances. The need for expeditious identification ofillegal migrants is more pressing now than ever. It is not a matter of dealing with a religious or linguistic group. It is a question of identifying those who illegally crossed over the border and continue to live in India contrary to the Indian law and the Constitution. The facts and figures which have been stated by the Union of India in its affidavit filed in the case titled "Jamiat Ulama-E-Hind and Anr. v. Union ofIndia and Ors. Writ Petiti(! n (Civil) No. 7 of 2001" clearly indicate that it is the existence of the IMDT Act, which has been the single factor responsible for dismal detection and expulsion of illegal migrants in Assam.

It has also been pointed out that in the neighbouring States, where this law is not in force, the process of detection (although far from satisfactory) has been far more effective than in the State of Assam. The application of IMDT Act, 1983 in Assam virtually gives the illegal migrants, in' the State, preferential protection in a matter relating to the citizeJ? ,ship of India. This is clearly unconstitutional and violative ofthe principles ofequality. The affidavit of the State seems to suggest that the matter has now become a political rather than a legal issue. However, it is submitted that as far as the present pleadings are concerned, the issue~ indi~ated in the present affidavit of the State under reply, are not relevant. None of the submissions made in the connected affidavit, referred to above filed by the Union oflndia in connected Writ Petition No. 7/2001, are controverted by the State of Assam in present affidavit.

Besides this, the State has not given any fresh facts and figures, which would seek to suggest that this Act has secured the object of dealing with illegal infiltrators. " In paragraph 2 it is averred that though the administrative power have been delegated to the Government of Assam to implement the ! MDT Act but the entire expenditure incurred is being reimbursed by the Central Government to the Government of Assam. It is further averred that since the enforcement of the IMDT Act only 1494 illegal migrants had been deported from Assam upto 30th June, 2001. In contrast 489046 number of Bangladeshi nationals had been actually deported under the Foreigners Act, 1946 from the State of West Bengal between 1983 and November 1998. The IMDT Act had failed to fulfil the objects for which it was enacted which is apparent from the poor results and it places Assam in a different position from rest of the country where the Foreigners Act, 1946 is applicable.

The provisions of the IMDT Act and the Rules made thereunder are highly burdensome for the public, as a result whereof no worthwhile cooperation/response is received from the public in the detection and deportation of illegal migrants. The Act failed to achieve its object rather it generated its side effects. It is also averred that there is no justification in the application of the IMDT Act to the State of Assam when the provisions of the Foreigners Act, 1946 are quite effective for detection and deportation of illegal migrants (foreigners) which is applicable to the rest of the country. Lastly, it is prayed that the constitutional validity of the IMDT Act may be examined in the lightand background of the above facts.

9; The petitioner has also filed a reply to the additional affidavit filed on behalf of the State of Assam, where besides reiterating his earlier pleas, it is averred that the Indian National Congress representatives from North East have themselves alluded to the problem of illegal migration in the past. Reference is made to a report of the General Secretaries to the Seventh ·--{ General Conference ofthe North-Eastern Congress (I) Co-Ordination Committee dated 3rd July, 1992 wherein it was recorded as under :- "20. 1 There are infiltrations though it is a difficult task to examine the precise number. 20. 2 The infiltrations are not only by minorities . of Bangladesh but alsn fro1n th~',... rity Muslims. In absolute terms, the number of 1 : ·. 'iri is likely to be much larger than that 2(U An 1ucv1u:£i1.

,,:1 oLlhJOrl IS given to the phenomenon by the Islamic Fundamentalists creating the vision of a larger country comprising Bangladesh ang the entire North East where its economic problems will be solved and security ensured. 20. 4 There is a direct correlation between the rise of fundamentalism and increase in influx. " It is further averred in paragraphs 9 and 10 ofthis affidavit that the Law Commission of India in its 175th Report on the Foreigners (Amendment) Bill, 2000 (submitted in September 2000) has also dealt with this issue. While noting that entry of illegal migrants and other undesirable aliens into India has posed a grave threat to our democracy and the security of India, especially for the eastern part of the country and Jammu and Kashmir, the Law Commission has observed that influx ofmigrants from Bangladesh has remained unabated and has acquired frightening proportions.

The Law Commission has also referred to the Report of the Governor of Assam dated 8th November, 1998 submitted to the President of India highlighting dangerous dimensions of the unprecedented migration of Bangladeshis to Assam and the security threats and strategic and economic consequences thereof. The Law Commission has proposed a draft Foreigners (Amendment) Bill, governing foreigners in India and the prevailing discriminatory position by the application of IMDT Act only to the State of Assam has ,been sought to be done away with by providing in Section 8(1) of the draft Bill for repeal of the said Act and dissolution of the Tribunals constituted thereunder. 10.

The Union of India has filed another affidavit on 24th November, , 2004 wherein it is averred that though in the earlier affidavit a prayer was made to examine the constitutional validity of the IMDT Act, but on reconsideration the Central Government has taken a decision to retain the IMDT Act in present form in its application to the State of Assam. It is averred that allegations wei;e made by various organizations that a large number of genuine Indian citizens were deported under the Foreigners Act, 1946 and, therefore, the IMDT Act was enforced whose purpose is to protect the genuine Indian citizens and it introduced an element of judicial scrutiny to determine the citizenship of a person. It is further averred that upto 31st March, 2004, the number of complaints received under the ! MDT Act were 401598 wherein inquiries were completed in 397835 cases and 376341 inquiries were referred to the Screening Committee.

Out of these 87222 cases were referred to Tribunals for opinion and 12180 persons were declared as illegal migrants. This, according to the affidavit, shows that but for the element of judicial scrutiny thousands of Indians would have been deported. It is further averred that as on 31st March, 2004, 519391 number ofinquiries were completed by the Tribunals under the Foreigners Act to detect those foreigners who came into Assam during the period ! st January, 1966 to 24th March, 1971 and 29189 persons were declared as foreigners ~nd their names were deleted from the electoral rolls. This shows that the results obtained under the IMDT Act and the Foreigners Act were more or less comparable. Besides above, the details of the fencing work and construction of roads done at the border have also been given. 11. In I. A. No.

6 of2004, the copy ofthe memorandum submitted before the Parliamentary Standing Committee ofHome Affairs on "The Illegal Migrants Laws (Replacing & Amending) Bill, 2003" on behalfofGovernment ofAssam has been filed, which contains the figures regarding inquiries conducted upto 31st August, 2003 and the same is as under :- l. Total number of enquiries initiated 386249 2. Total number of enquiries completed 379521 3. Total number of enquiries referred to Screening 362592 Committee 4. Total number of enquiries made by the Screening 359733 Committee 5. Total number of enquiries referred to the IM(DT)s 76228 6. Total number of enquiries disposed of by the IM(DT)s 21169 7. Total number of persons declared as illegal migrants 11636 8. Total number of illegal migrants physically expelled 1517 9. Total number of illegal migrants to whom expulsion 6159 orders served 10. Total number of enquiries pending with the Screening 2859 Committee 11.

Total number of cases pending with the Tribunals 55059 A copy of the report dated 8th November, 1998 sent by Governor of Assam, Lt. Gen. S. K. Sinha (Retired), former Deputy Chiefof Army Staff, has also been filed along with this application. The report is a long and comprehensive one which was prepared after thorough inspection of border areas and districts, discussion with Indian Ambassador in Bangladesh and talks with political leaders. Some portions of the report are being reproduced below:- "I . The unabated influx ofillegal migrants from Bangladesh into Assam and the consequent perceptible change in the demographic pattern of the State has been a matter of grave concern. It threatens to reduce the Assamese people to a minority in their own State, as happened in Tripura and Sikkim. 2. Illegal migration into Assam was the core issue behind the Assam student movement. It was also the prime contributory factor behind the outbreak of insurgency in the State.

Yet we have not made much tangible progress in dealing with this all important issue. 3. There is a tendency to view illegal migration into Assam as a regional matter affecting only the people ofAssam. It's more dangerous dimensions of greatly undermining our national security, is ignored. The long cherished design ofGreater East Pakistan/Bangladesh, making in-roads into strategic land link of Assam with the rest of the country, can lead to severing the entire land mass of the North-East, with all its rich resources from the rest of the country. They will have disastrous strategic and economic consequences. · MIGRATION INTO ASSAM HJSTOJUCALBACKGROUND 7. Failure to get Assam included in East Pakistan in 1947 remained a source of abiding resentment in that country. Zulfikar Ali Bhutto in his book "Myths of Independence" wrote "It would be wrong that ... Kashmir is the only dispute that divides India and Pakistan, though undoubtedly the most significant.

One at least is nearly as important as the Kashmir dispute, that of Assam and some districts of India adjacent to East Pakistan. To these Pakistan has very good claims". Even a pro-India leader like Sheikh Mujibur Rahman in his book "Eastern Pakistan; its population & economics" observed, "Because Eastern Pakistan must have sufficient land for its expansion and because Assam has abundant forests and mineral resources, coal, petroleum ,etc. , Eastern Pakistan must include Assam to be financially and economically strong. SARBANANDA SONOWAL v. U. O. l. [G. P. MATHUR, J. ] 495 CONTRIBUTORY FACTORS 10. Besides the above considerations, there are other contributory factors facilitating infiltration from Bangladesh. Ethnic, linguistic and religious commonality between the illegal migrants and many people on our side of the border enables them to find shelter. It makes their detection difficult.

Some political parties have been encouraging and even helping illegal migration with a view to building vote banks. These immigrants are hardworking and are prepared to work as cheap l_abour and domestic help for lower remuneration than the local people. This makes them acceptable. Moreover, with corruption being all pervasive, corrupt officials are bribed to provide help. Recently, a racket has been busted in Lakhimpur. Four individuals were found to have been providing forged citizenship certificates and other documents to illegal migrants for the last 14 years. ILLEGAL MIGRANTS 15....................................... Mr. Mulan described this as invasion using military terminology which in present geostrategic context, underscores the strategic aspect of the problem.

It is unfortunate that to this day, after half a century of independence,· we have chosen to remain virtually oblivious to the grave danger to our national security arising from this unabated influx of illegal migrants. Third, the prophecy that except the Sibsagar district, the Assamese people will not find themselves at home in Assam, is well on its way to becoming true as reflected by the present demographic pattern of Assam. 16. Mr. Inderjit Gu(? ta, the then Home Minister of India stated in the Parliament on May 6, 1997 that there were 10 million illegal migrants residing in India. Quoting Home Ministry/Intelligence Bureau sources, the August 10, 1998 issue of India Today has given the breakdown of these illegal migrants by States :- West Bengal 5. 4 million Assam 4 million Tripura 0. 8 million Bihar 0. 5 million Maharashtra 0. 5 million Rajasthan - 0. 5 million Delhi - 0. 3 million Making a total of - 10.

83 millions Community wise growth Assam India Hindus Muslims Hindus Muslims (l) 1951-1961 33. 71 38. 35 20. 29 25. 61 (2) 1961-1971 37. 17 30. 99 23. 72 30. 85 (3) 1971-1991 41. 89 77. 42 48. 38 55. 04 EXPLANATORY NOTE ........................ In the case of Muslims the Assam growth rate was much higher than the All India rate. This suggests continued large scale Muslim illegal migration into Assam. (d) Muslim population in Assam has shown a rise of 77. 42 per cent in 1991 from what it was in 1971. Hindu population has risen by nearly 41. 89 per cent in this period. (e) Muslim population in Assam has risen from 24. 68 per cent in 1951 to 28. 42 per cent in 1991. As per 1991 census four districts (Dhubri, Goalpara, Barpeta and Hailakandi) have become Muslim majority districts. Two more districts (Nagaon and Karimganj) should have become so by 1998 and one district Morigaon is fast approaching this position. 20.

The growth of Muslim population has been emphasized in the previous paragraph to indicate the extent of illegal migration from Bangladesh to Assam because as stated earlier, the illegal migrants coming into India after 1971 have been almost exclusively Muslims. 21. Pakistan's ISi has been active in Bangladesh supporting militant movement in Assam. Muslim militant organization have mushroomed in Assam and there are reports of somf! 50 Assamese Muslim youths having gone for training to Afghanistan and Kashmir. SARBANANDA SONOWAL v. U. O. l. [G. P. MATHUR, J. ] 497 CONSEQUENCES 22. The dangerous consequences of large scale illegal migration from Bangladesh, both for the peopie of Assam and more for the Nation as a whole, need to be emphatically stressed. No misconceived and mistaken notions of secularism should be allowed to come in the way of doing sp.. 23.

As a result of population movement from Bangladesh, the spectre looms large of the indigenous people of Assam being reduced to a minority in their home State. Their cultural survival will be in jeopardy, their political control will be a weakened and their employment opportunities will be undetermined. 24. The silent and invidious demographic invasion of Assam may result in the loss of the geostrategically vital districts of lower Assam. The influx of these illegal migrants is turning these districts into a Muslim majority region. It will then only be a matter of time when a demand for their merger with Bangladesh may be made. The rapid growth of international Islamic fundamentalism may provide for driving force for this demand. In this context, it is pertinent that Bangladesh has long discarded secularism and has chosen to become an Islamic State. Loss of lower Assam will severe the entire land mass of the North East, from the rest oflndia and the rich natural resources of that .

region will be lost to the Nation. " 12. Since extensive reference has been made in the affidavits to the Assam Accord, it is necessary to notice the main provisions thereof. It is a Memorandum of Settlement which was signed on 15th August, 1985 by the President and General Secretary of All Assam Students' Union and Convenor ofAll Assam Gana Parishad on the one hand and Home Secretary, Government of India and the Chief Secretary, Government of Assam on the other, in the presence of Shri Rajiv Gandhi, the then Prime Minister of India. The main clauses of the settlement which have a bearing on the case are being reproduced below :- ~'MEMORANDUM OF SEITLEMENT Government have all along been most anxious to find a satisfactory solution to the problem offoreigners in Assam. The All Assam Student Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP) have also expressed their keenness to finq such a solution. 2.

The AASU through their Memorandum dated 2nd February 1980 presented to the late Prime Minister Smt. Indira Gandhi, conveyed their profound sense of apprehensions regarding the continuing influx of foreign nationals into Assam and the fear about adverse effects upon the political, social cultural and economic life ofthe State. 3. Being fully alive to the genuine apprehensions of the people of Assam, the then Prime Minister initiated the dialogue with the AASU/AAGSP. Subsequently, talks were held at the Prime Minister's and Home Minister's levels during the period 1980-83. Several rounds of informal talks were held during 1984. Formal discussions were resumed in March, 1985. 4. Keeping all aspects of the problem including constitutional and legal provisions, international agreements, national commitments and humanitarian considerations, it has been decided to proceed as follows: - Foreigners Issue 5. 1. For purposes of detection and deletion of foreigners, 1. 1.

1966 shall be the base date and year. 5. 2. All persons who came to Assam prior to 1. 1. 1966, including those amongst them whose names appeared on the electoral rolls used in 1967 elections, shall be regularized. ) 5. 3. Foreigners who came to Assam after l. l. 1966 (inclusive) and up to 24th March 1971 shall be detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order 1964. 5. 4. Names of foreigners so detected will be deleted from the electoral rolls in force. Such persons will be required to register themselves before the Registration Office of the respective districts in ~. accordance with the provisions of the Registration of Foreigners Act, 1939 and the Registration of Foreigners Rules, 1939, 5. 5. For this purpose, Govt. of India will undertake suitable strengthening of the governmental machinery. 5. 6. On the expiry of a period of ten years following the date of I 1.

detection, the names of all such persons which have been deleted from the electoral rolls shall be restored. 5. 7. All persons who were expelled earlier, but have since re-entered illegally into Assam, shall be expelled. 5. 8. Foreigners who came to Assam on or after March 25, 1971 shall continue to be detected, deleted and expelled in accordance with law. Immediate and practical steps shall be taken to expel such foreigners. 5. 9. The Government will give due consideration to certain difficulties expressed by the AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983. " Subsequent thereto the Citizenship Act, 1955 was amended and Section 6-A _was iritroduced w. e. f. 7. 12. 1985. The relevant provisions of Section 6-A are -- bei. ng reproduced below: - "6(A) Special provisions as to citizenship of persons covered by the Assam Accord.

- (1) For the purposes of this section (a) "Assam" means the territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Act, 1985; (b) "detected to be a foreigner" means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 (31 of 1946) and the Foreigners (Tribunals) Orders, 1964 by a Tribunal constituted under the said Order; (c) "specified territory" means the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985; (d) a person shall be deemed to be of Indian origin, if he, or either of his parents or any of his grandparents was born in undivided India; (e) a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opinion to· the effect that he is a foreigner to the officer or authority concerned.

(2) Subject to the provisions of sub-section (6) and (7), all persons of Indian origin who came before the Ist day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of_ the General Election to the House of the People held in 1967) ~nd who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day ofJanuary, 1966. (3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who (a) came to Assam on or after the 1st day ofJanuary, 1966 but before the 25th day of March, 1971 from the specified territory; and (b) has, since the date of his entry into Assam, been ordinarily re.

sident in Assam; and (c) has been detected to be a foreigner; shall register himself in accordance with the rules made by the Central Government in this behalf under ~ection 18 with such authority (hereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom. .. ·Explanation-In the. case· of every person· seeking registration under this sub~s~ction, the opinion of the Tribi. lrtal constituted under the Fornigners (Trfounals) O~der, 1964 holdin1g such ~erson to be a foreigner, shall be deemed to be. sufficient pr~of of the requirement under clause © of this sub-section. and ·if any question arises as to whether such person complies with any other.

requirement under this Sub-section, the registering authority shall: (i) if such opinion contains a finding with respect to such other requirement, decide the question in confonnity with such finding: (ii) if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal constituted under the said Order having jurisdiction in accordance with such rules as the Central Government may make ·in this behalf under section 18 and decide the question in conformity with the opinion received on such reference. SARBANANDA SONOWAL v. U. O. I. [G. P. MATHUR, J.

] 501 (4) A person registered under sub-section (3) shall have, as from the date on which he has been detected to be a foreigner and till the expiry of a period of ten years from that date, the same rights and obligations as a citizen of India (including the right to obtain a passport under the Passports Act, 1967 (15 of 1967) and the obligations connected therewith), but shall not be entitled to have. his name included in any electoral roll for any Assembly or Parliamentary constituency at any time before the expiry of the said period of ten •· years. --. ,,·· . (5) A persoll_ registered under sub-section (3) shall be deemed to be a citizen ofIndia for aH purposes as from the date ofexpiry ofa period of ten years from the date on which he has been detected to be a foreigner. (6) ................................. (Omitted as not relevant).

(7) Nothing in sub~sections (2) to (6) shall_ apply in relation to any person (a) · who, immediately before the commencement of the Citizenship (Amendment) Act, 1985, for year is a citizen of India; (b) who was expelled from India before the commencement of the Citizenship (Amendment) Act, 1985, under the Foreigners Act, 1946 (31 ? f 1946). (8) Save as otherwise expressly provided in this section, the provisions of this section shall have effect not withstanding anything contained in any other law for the time being in force. '' 13. In this writ petition we are basic! llly concerned-with the constitutional validity of the IMDT Act" which. has been. made applicable only to the State of Assam and that too fo(detection and deportation of illegal migrants; who ·have entered India on 25thMarch, 1971 or1hereafter. The IMDT Act has not . ;-:-- -. ' · be~n enforced in the ~es! N'the country. The. ·election manifesto of a political party has· no relevance and can. not be.

taken into consideration for judging . the constitutional validity of any enactment, whether made by State or by _Centre, ~~-it is· a purely_ leg~l. _iss~e··and lies. within the _domain· of judiciary. - .. . . . . , -~ ·- ,. _:. ,. . ·.... '·"· . -14. Before adverting-to the provisions of the IMDT Act, it i~ necessary ··':- . · t~ have a brief look at the ena. ctments made for dealing with foreigners. The first enactment governing the foreigners was. the Foreigners Act, l864, which provided for the· expulsion of foreigners and their apprehension, detention pending removal and for a ban on their entry into India after removal. The situation created by the Second World War led to promulgation of Foreigners Ordinance in 1939 which was replaced by Foreigners Act, 1940.

Section 7 of this Act read as under :- "Burden ofproof-If any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872, lie upon such person. " The legislature then enacted the Foreigners Act, 1946 which repealed the 1940 Act. Section 2(a) of this Act defines a "foreigner" and it means a p~rson who is not a citizen of India.

Sub-Section (1) of Section 3 lays down that the Central Government may by order make provision, either generally or _with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or, their departure therefrom or their presence or continued presence therein. Without prejudice to the generality of the powers conferred by sub-section (1), sub-section (2) c~nfers power to make wide ranging orders concerning a foreigner which have been numerated in eta. uses (a) to· (g), which include that a foreigner shall not remain in India or in any prescribed area therein, or if he has been required by an order under this Section riot to remain in India, meet from· any resources at his disposal the cost of his removal from India or remain in such area as may be prescribed and. shat~ comply with such condition.

as may Qe specified or shall be arrested cir detained or confined. Sub-section (3) provides that any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (c) or clause (f) ofsub-section (2). Section 4 confers power for directing a foreigner to be detained or confined in such place and manner as the Central Government by order determine. Section 4(3) directs that no person shall knowingly assist an internee to escape from custody or harbour an escaped internee or to give any assistance to such a foreigner. Section 5 places restriction upon a foreigner to change his name while in India. Section 6 casts an obligation on master of any vessel and pilot of any aircraft landing or embarking at any place in India to give particulars with respect to any passenger or members of any crew who are foreigners. Section SARBANANDA SONOWAL v. U. O. l. [G. P. MATHUR, J.

] 503 7 casts a similar obligation on hotel keepers in respect of foreigners accommodated therein. Section 12 confers power upon any authority who has been conferred ·power to make or give any direction under the Act to further delegate to any subordinate authority to exercise such power on its behalf. Section 14 has been amended by Act No. 16 of 2004 and now maximum punishment under the said section is five years and also fine. Section 14A and 14B, which have been add0d by the aforesaid amendment, provide for punishment with imprisonment for a term which shall not be less than two years but may extend to eight years. Section l4C provides for some punishment for abetment'of offences under Section l 4A or l 4B. Section 9 of this Act is important and it reads as under :- "9.

Burden ofproof-If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person. " This Act confers wide ranging powers to deal with all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner for prohibiting, regulating or restricting their or his entry into India or their presence or continued presence including his arrest, detention and confinement.

The most important ,provision is Section 9 which casts the burden of proving that a person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall lie upon such person. Therefore, where an order made under the Foreigners Act is challenged and a question arises whether the person against whom the order has been made is a foreigner or not, the burden of proving that he is not a foreigner is upon such a person. In Union ofIndia v. Ghaus Mohammed, AIR (1961) SC 1526, the Chief Commissioner of Delhi served an order on Ghaus Mohammad to leave India within three days as he was a Pakistani national. He challenged the order before the High Court which set aside the order by observing that there must be prima facie material on the basis of which the authority can proceed to pass an order under Section 3(2)(c) of the Foreigners Act, 1946.

In appeal the Constitution Bench reversed the judgment of the High Court holding that onus of showing that he is not a foreigner was upon the respondent. 15. The Central Government has made the Foreigners (Tribunals) Order, 1964 in exercise of pow.. ers conferred by Section 3 of the Foreigners Act. Clause 2(1} oflhis Orde~p~ovides that the Central Government may by order refer the question as to whether a person is or is not a foreigner within . the meaning of Foreigners Act, 1946, to a Tribunal to be constituted for the purpose, for its opinion. Clause 3(1) provides that the Tribunal shall serve on the person to whom the question relates, acopy of the main grounds on which he is alleged to be a foreigner and give him a reasonable opportunity ·or making a representation and producing evidence in support ofhis ca~e and · after cohsidering such evidence ~s may be produced and after hearing sue~. persons as may deserve to be heard; the Tribunal.

shall submit its opinion tb ·• the officer or authority specified in this behalfin the order ofreferenc~. Clause 3(1-A) provides that th~ Tribunal shall, before 'ghdng its ~pinioh :Oh. :th~ question referred to in sub-paragraph (l-A). of paragraph 2, give the person·· in respect ofwhom the opinion is sought, a reasonable opportunity to reprnserit his case. Clause 4 provides that the Tribunal shall have the powers of. a Civil Court while trying a suit under the Code of Civil Procedure in res'pect 'or · summoning and ~nforcing the attendance of any p~rson and examining hiin on oath, requiring the discovery and production of any document and issuing commissions for the examination of any witness. 16. It needs to be emphasized that the general rule in the leading democracies of the world is that where a person claims to be a citizen of a particular country, the burden is upon him to prove that he is a citizeri of that· country. In United Kingdom, the relevant.

provision is contained in the Immigration Act, 1971 and sub-Section (1), (8) and (9) of Section 3 thereof l read as under : "3. General provisions for regulation and control. (I) Except as otherwise provided by or under this Act, where a person is not a British citizen (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under this Act; • _G (b) he may be given leave to enter the United Kingdom (or when already there, leave to remain in the United Kingdom) either for· a limited or for an indefinite period; ' {c) if he is given a limited· teave to_ enter or remain in the' United Kingdum, it may be given subject to· condition:s restrict. ing his employment or occupation in the United Kingdom, or· re·q1:1i'ring . · SARBANANDA SONOWAL v. U,D. L (G. P. iv1ATHUR, J. ] 505 him to register with the police, or both.

xxx xxx (8) When any question arises under this Act whether or not a person is a British citizen, or is entitled to any exemption under this Act, it shall lie on the persori asserting it to prove that he is. (9) A person seeking to enter the United Kingdom and claiming to · :have the right of abode there shall prove that he has that right by means of either (a). · a United Kingdom passport describing him as a British citizen of the Uni}ed Kingdom and Co. Jonies having the right of abode in the United Kingdom; or (b) a certificate of entitlement. " So111ewhat similar provision is contained in·Immigration and Nationality Act ofUSA and Section 291 places the burden of proof upon the person concerned in . any removal proceeding. Section 318 provides that no person shall be naruralized unless he has been lawfully admittecl to the United States for permanent residence in accordance with all.

applicable provisions of the Act and the burden of proof shall be upon such person to showthat he entered the United States lawfully. The Immigration and Refugee Protection Act, 2001 of Canada contains a provision of placing the burden upon the concerned person to establish his right to have a permanent residence in the said country. Section 188 of the Migration Act, 1958 of Australia provides that an officer may require a person whom the officer knows or suspects is ··a non-citizen to (a) show the officer evidence of being a lawful non-citizen; or (b) show the officer evidence of the person's identity. 17. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citi~en of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of(i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship.

Some times the place of birth of his grand . parents may also be relevant like. under Section 6-A(I )(d) of the· Citize11ship Act. All these facts would necessarily be. within the personal. knowledge of the person concerned and not of the authorities ofthe State. After he has given evidence on these points, the State authorities can verify the facts and can then le