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CASE NO.:

Writ Petition (civil) 117 of 2006

PETITIONER:

Sarbananda Sonowal

RESPONDENT:

Union of India

DATE OF JUDGMENT: 05/12/2006

BENCH:

S.B. Sinha & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

With

Writ Petition (Civil) No. 119 of 2006

Charan Chandra Deka & Ors. ...Petitioners

Versus

Union of India & Anr. ...Respondents

S.B. SINHA, J.

1. The validity of two pieces of subordinate legislation,

one amending the Foreigners (Tribunal) Order, 1964 and the

other, the Foreigners (Tribunal) for Assam Order, 2006 in the

context of an earlier decision rendered by this Court is the

question involved in these Writ Petitions filed under Article 32

of the Constitution of India by the petitioners.

2. Sarbananda Sonowal filed WP (C) No. 131 of 2000

under Article 32 of the Constitution of India against Union of

India and others for declaring some of the provisions of the

Illegal Migrants (Determination by Tribunals) Act, 1983 (for

short "the IMDT Act") as unconstitutional, null and void and a

consequent declaration that the Foreigners Act, 1946 (for

short 'the 1946 Act') and the Rules made thereunder would

apply to the State of Assam. The pleas raised in the said writ

petition found favour with a 3-Judge Bench of this Court in

the decision reported in [(2005) 5 SCC 665]. The said decision

is hereinafter referred to as Sonowal I. It was directed

therein:

"84. In view of the discussion made above, the

writ petition succeeds and is allowed with the

following directions:

(1) The provisions of the Illegal Migrants

(Determination by Tribunals) Act, 1983 and

the Illegal Migrants (Determination by

Tribunals) Rules, 1984 are declared to be

ultra vires the Constitution and are struck

down.

(2) The Tribunals and the Appellate

Tribunals constituted under the Illegal

Migrants (Determination by Tribunals) Act,

1983 shall cease to function.

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(3) 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.

(4) It will be open to the authorities to

initiate fresh proceedings under the

Foreigners Act against all such persons

whose cases were not referred to the

Tribunals by the competent authority

whether on account of the recommendation

of the Screening Committee or any other

reason whatsoever.

(5) All appeals pending before the

Appellate Tribunal shall be deemed to have

abated.

(6) 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 from

Bangladesh or are illegally residing in

Assam."

The Court while issuing the aforementioned

directions considered the provisions of the IMDT Act in great

detail vis-`-vis, the duties and functions of the Central

Government and other States in terms of Article 355 of the

Constitution of India and the problem of illegal migration of

citizens of Bangladesh inter alia into the State of Assam and

the threat posed by it to the security of the nation.

3. This Court opined that there was absolutely no

reason why the illegal migrants coming into the State of Assam

should be treated differently from those who had migrated to

the other parts of the country having regard to the provisions

of the Citizenship Act, 1955 and the Foreigners (Tribunals)

Order 1964 (for short "the 1964 Order").

4. Subsequent to the said decision, instead of

implementing the directions therein, the Central Government

in exercise of its power under Section 3 of the 1946 Act made

an Order known as "the Foreigners (Tribunal) Amendment

Order, 2006" (for short "the 2006 Order"), which was

published in the Official Gazette dated 10th February, 2006.

On 10th February, 2006, the Central Government amended the

1964 Order principally making the same inapplicable to the

State of Assam. Clause 2 of the said Order reads thus:

"In the Foreigners (Tribunal) Order, 1964:-

(a) paragraph 1 shall be

renumbered as sub-paragraph

(1) thereof and after sub-

paragraph (1) as so renumbered

the following sub-paragraph

shall be inserted, namely:-

"(2) This Order shall apply to

the whole of India except the

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State of Assam."

Thus by way of a subordinate legislation the

directions issued by this Court in the earlier binding decision

to get all pending cases relating to alleged immigrants decided

by the Tribunal under the 1964 Order is sought to be nullified.

It is done in spite of the reasoning in Sonowal I leading to the

directions issued therein. It must be noted that the parent Act

stands unamended.

5. Instead of obeying the mandamus issued by this

Court essentially in the interests of national security and to

preserve the demographic balance of a part of India, that is

Bharat, and implementing the 1964 Order in Assam in letter

and spirit, the Authorities that be, have chosen to make the

1964 Order itself inapplicable to Assam. Whether the

authority that should be interested in the welfare of the

nation, its security and integrity, can do so in the light of the

facts noticed and relied on in Sonowal I is the question? In

the reply filed on behalf of the Union of India, after stating that

some steps have been taken to implement the directions of

this Court in the earlier writ petition, it is stated:

"In the meantime, Representations were

received by the Government of India from

various organizations of Assam for providing

safeguards for genuine Indian citizens either by

framing a new law or by amending the existing

provisions. Apprehensions of

trouble/victimization of genuine citizens at the

hands of the specified authorities in the name

of detection and deportation of foreigners was

expressed."

Adequate facts, nay, no fact, is pleaded to justify such

apprehension. It is not explained how Indian citizens would

suffer if the 1964 Order is enforced. On the other hand, it is

stated in the reply itself in paragraph 2:

"In exercise of the powers conferred by Section

3 of the Foreigners Act, 1946, Foreigners

Tribunals ("Tribunals") were set up in the

1960s under the Foreigners (Tribunal) Order,

1964 in the State of Assam only though the

Foreigners (Tribunal) Order 1964 has all India

application and Tribunals can be set up in

other parts of the country. Under the

Foreigners (Tribunal) Order, 1964, the

procedure provided for disposal of questions

referred to the Tribunals was that the Tribunal

would serve upon the person, to whom the

question relates, a copy of the main grounds

on which the person is alleged to be a

foreigner and reasonable opportunity was

provided for making a representation and

producing evidence in defence. Such a person

was also to be afforded personal hearing if so

desired."

Nothing was also shown at the time of arguments to persuade

us to come to a conclusion that the 1964 Order worked

harshly on anyone who was sought to be proceeded against

under the Foreigners Act and under that Order.

The present exercise is therefore seen to be not a

commendable attempt to evade the directions issued by this

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Court in the earlier round. That too, by way of subordinate

legislation. Though, we would normally desist from

commenting, when the security of the nation is the issue as

highlighted in Sonowal I, we have to say that the bona fides of

the action leaves something to be desired. Although bona

fides on the part of authority vested with power to make

delegated legislation ordinarily is not a relevant factor, the

question is whether the manner in which it is sought to be

done is sufficient in law to get rid of the judgment of this Court

in Sonowal I. After thus removing the 1964 Order from the

scene, the new Order of 2006 has been issued. Here also,

except the reason already set out, no particular reason is given

for making a departure from the existing procedure. It is

stated in paragraph 2(I) of the reply:

"On consideration of the representations,

provisions of the Foreigners Act, 1946 and the

peculiar situation of Assam, it was considered

necessary to have a separate procedure for the

Foreigners Tribunals in the State of Assam. It

is pertinent to note that a separate procedure

for detection of foreigners has already been in

existence in Assam for the last 40 years."

No facts or details are furnished in support. What is the

peculiar situation other than what is noticed in Sonowal I is

not explained.

6. Paragraph 2 of the 2006 Order provides for

constitution of tribunals in the following terms:

"2. Constitution of Tribunals:- (1) The

Central Government or any authority specified

in this regard shall, by order, refer the

question as to whether a person is or is not

foreigner within the meaning of he Foreigners

Act 1946 (31 of 1946) to a Tribunal to be

constituted for the purpose, for its opinion.

(2) The registering authority appointed

under sub-rule (1) of rule 16F of the

Citizenship Rules, 1956 shall refer to the

Tribunal the question whether a person of

Indian origin complies with any of the

requirements under sub-section (3) of Section

6A of the Citizenship Act, 1955 (57 of 1955).

(3) The Tribunal shall consist of such

number of persons having judicial experience

as the Central Government may think fit to

appoint.

(4) Where the Tribunal consists of two or

more members, one of them shall be appointed

as the Chairman thereof.

(5) Till any Tribunal is constituted under

sub-paragraph (1), the Tribunal constituted

under the Foreigners (Tribunal) Order, 1964

shall be deemed to be Tribunals for the

purposes of this Order."

Paragraph 3 refers to the procedure for disposal of questions

arising.

"3. Procedure for disposal of questions:- (1) The

Tribunal upon receipt of a reference under sub-

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paragraph (1) of paragraph 2, shall consider

whether there is sufficient ground for proceeding

and if the Tribunal is satisfied that basic facts are

prima facie established, it shall serve on the person

to whom the question relates, a copy of the main

grounds on which he is alleged to be a foreigner and

give him a reasonable opportunity of making a

representation and producing evidence in support of

his case and after considering such evidence as may

be produced and after hearing such persons as may

desire to be heard, the Tribunal shall submit its

opinion to the officer or authority specified in this

behalf in the order of reference.

(2) The Tribunal shall, before giving its opinion

on the question referred to in sub-paragraph (2) of

paragraph 2, give the person in respect of whom the

opinion is sought, a reasonable opportunity to

represent his case.

(3) Subject to the provisions of this Order, the

Tribunal shall have power to regulate its own

procedure."

The Tribunal in terms of paragraph 4 of the 2006

Order shall have the powers of a Civil Court while trying a suit

under the Code of Civil Procedure in respect of (i) summoning

and enforcing the attendance of any person and examining

him on oath; (ii) requiring the discovery and production of any

document; and (iii) issuing commissions for the examination of

any witness.

7. Apart from the provisions of the Constitution of

India, the matter relating to determination of the question as

to whether a person is a foreigner or not is provided under the

1946 Act. The Central Government, in exercise of its power

conferred under the said Act, made an Order known as the

Foreigners (Tribunals) Order, 1964.

Section 9 of the 1946 Act reads as under:

"9. Burden of proof:-- 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."

Rule 3 of the 1964 Order provided the procedure for

disposal of the question. The 1964 Order has now been made

inapplicable to the State of Assam. Despite a clear direction in

Sonowal I in regard to strict implementation of the equality

clause amongst the migrants from Bangaldesh, the Central

Government made the 2006 Order which is applicable to the

State of Assam only.

8. The factual position that obtains is that as on 31st

December, 2005, 14,947 cases were pending before the

Foreigners Tribunals functioning in Assam and 29,429

persons who came to Assam between 1st January, 1966 and

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24th March, 1971 were identified as foreigners. As far as the

Tribunals set up under the IMDT Act were concerned, as on

12th July, 2005, 88,770 cases were pending and 12,846

persons who came into Assam after 25th March, 1971 were

declared as illegal migrants.

9. We shall first consider the validity of the

amendment to the 1964 Order by notification No. GSR 57 (E)

dated New Delhi, the 10th February 2006 so as to make it

inapplicable to the State of Assam in the context of prayer (A)

in W.P. (C) No. 119 of 2006. It has already been held in

Sonowal I that the special treatment sought to be meted out to

Assam is not justified and the extending of a special Act to

that territory alone is discriminatory. The same reasoning

applies on all fours to the removing of the 1964 Order from the

scene. Such removal or such making of the Order of 1964

inoperative to the State of Assam alone is discriminatory and

is violative of Article 14 of the Constitution.

10. We have already pointed out that no reasons are

given to justify such exclusion. It was all the more necessary

to do so in the light of the reasoning in Sonowal I and the

directions issued therein. It is hence found that the

notification making the 1964 Order inapplicable to Assam by

amending Clause 2 of the said Order is unreasonable and

arbitrary, violating Article 14 of the Constitution of India.

11. In making the 1964 Order inapplicable to Assam

alone, when the other States having boundaries with

Bangladesh, are still expected to apply that Order, the

respondents have acted arbitrarily and have not kept in mind

the interests of the country as highlighted in Sonowal I. No

rational reason has been put forward to justify such a

separate treatment for Assam especially in the context of the

report of the then Governor of Assam and the other facts

discussed in the earlier decision and the earlier decision itself.

Therefore, the amendment brought about to the 1964 Order by

Notification G.S.R. 57 (E) dated New Delhi, the 10th February

2006 issued by the Government of India has to be held to be

violative of Article 355 and Article 14 of the Constitution. The

said Notification is struck down in terms of prayer (a) in W.P.

(Civil) No. 119 of 2006.

12. It is also seen to be an attempt by way of a piece of

subordinate legislation to nullify the mandamus issued by this

Court. The parent Act remains in force and applicable. It is

not open to the authority concerned to nullify the directions of

this Court by way of subordinate legislation by making the

very 1964 Order inapplicable to the State of Assam, especially

in the light of the reasoning in Sonowal I.

13. Thus, if the Order making the 1964 Order to the

State of Assam inapplicable is found invalid, there is no

question of the 2006 Order being promulgated to replace the

1964 Order. The attempt has to be held to be still born

especially in the context of Sonowal I and the reasoning

therein. The field continues to be occupied by the 1964 Order

and the 2006 Order cannot operate parallelly. Moreover, the

2006 Order will fall on the basis of the reasoning in Sonowal I.

14. Though this is the position, out of deference to the

arguments raised before us, we will consider the challenge to

the 2006 Order independently.

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15. A comparative chart showing the changes brought

about in paragraphs 2 and 3 of the 1964 Order by reason of

the 2006 Order may be noticed as under:

Clause

Foreigners (Tribunals)

Order 1964

Foreigners (Tribunals

for Assam) Order 2006

2(1)

Constitution

of Tribunals

The Central

Government may by

order, refer the

question as to

whether a person is

or is not a foreigner

within the meaning of

the Foreigners Act,

1946 (31 of 1946) to a

Tribunal to be

constituted for the

purpose, for its

opinion.

The Central

Government or any

authority specified in

this regard shall, by

order, refer the

question as to whether

a person is or is not a

foreigner within the

meaning of the

Foreigners Act, 1946

(31 of 1946) to a

Tribunal to be

constituted for the

purpose for its

opinion.

3(1)

Procedure

for disposal

of questions

The Tribunal shall

serve on the person

to whom the question

relates, a copy of the

main grounds on

which he is alleged to

be a foreigner and

give him a reasonable

opportunity of

making a

representation and

producing evidence in

support of his case

and after considering

such evidence as may

be produced after

hearing such persons

as may deserve to be

heard, the Tribunal

shall submit its

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opinion to the officer

or authority specified

in this behalf in the

order of reference.

The Tribunal upon

receipt of a reference

under sub-paragraph

(1) of paragraph 2,

shall consider whether

there is sufficient

ground for proceeding

and if the Tribunal is

satisfied that basic

facts are prima facie

established, it shall

serve on the person to

whom the question

relates, a copy of the

main grounds on

which he is alleged to

be a foreigner and give

him a reasonable

opportunity of making

a representation and

producing evidence in

support of his case

and after considering

such evidence as may

be produced and after

hearing such persons

as may desire to be

heard, the Tribunal

shall submit its

opinion to the officer

or authority specified

in this behalf in the

order of reference.

The learned Solicitor General appearing on behalf of

the Union of India and Mr. K.K. Venugopal, learned senior

counsel appearing on behalf of the State of Assam submitted

that the provisions of the 2006 Order had been brought into

existence only with a view to give effect to the judgment of this

Court in Sonowal I. It was contended that given the higher

degree of incursion of illegal migrants into Assam when

compared to other States of the Union and in view of the

special features, such a provision had to be brought in. It was

urged that whereas under the 1964 Order the Central

Government might or might not refer a matter to the Tribunal,

the same has been made mandatory under the 2006 Order.

According to the learned counsel, the Central Government

earlier had an option to refer a matter, but now it did not

have. Once, however, a reference is made to the Tribunal

without making any enquiry whatsoever, it would be for the

Tribunal, which has a quasi-judicial function to perform, to

determine the question as to whether a prima facie case has

been made out for issuance of a show-cause notice having

regard to the sufficiency or otherwise of the grounds which

can be found out from the material placed before it. By

reason thereof, the burden of proof as specified under the

1946 Act is not diluted. The provisions of Article 21 of the

Constitution of India being applicable to a person who had

already set his feet in India he would be entitled to claim

compliance of the principles of natural justice which may not

be necessary in respect of a person who has yet to enter the

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Indian territory.

16. Articles 5, 6 and 11 of the Constitution of India read

as under:

"5. Citizenship at the commencement of

the Constitution.\027At the commencement of

this Constitution every person who has his

domicile in the territory of India and\027

(a) who was born in the territory of India; or

(b) either of whose parents was born in the

territory of India; or

(c) who has been ordinarily resident in the

territory of India for not less than five years

preceding such commencement,

shall be a citizen of India.

6. Rights of citizenship of certain persons

who have migrated to India from

Pakistan.\027Notwithstanding anything in

article 5, 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 at the commencement of this

Constitution if\027

(a) he or either of his parents or any of his

grand-parents was born in India as defined in

the Government of India Act, 1935 (as

originally enacted); and

(b) (i) in the case where such person has so

migrated before the nineteenth day of July,

1948, he has been ordinarily resident in the

territory of India since the date of his

migration, or

(ii) in the case where such person has so

migrated on or after the nineteenth day of

July, 1948, he has been registered as a citizen

of India by an officer appointed in that behalf

by the Government of the Dominion of India on

an application made by him therefore to such

officer before the commencement of this

Constitution in the form and manner

prescribed by that Government:

Provided that no person shall be so registered

unless he has been resident in the territory of

India for at least six months immediately

preceding the date of his application.

11. Parliament to regulate the right of

citizenship by law. \027 Nothing in the foregoing

provisions of this Part shall derogate from the

power of Parliament to make any provision

with respect to the acquisition and termination

of citizenship and all other matters relating to

citizenship."

17. The matter relating to illegal migration to Assam

finds place in clause (3) of Article 6-A of the Citizenship Act.

It reads as under:

"(3) Subject to the provisions of sub-sections

(6) and (7), every person of Indian origin who

\027

(a) came to Assam on or after the 1st

day of January, 1966 but before the 25th

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day of March, 1971 from the specified

territory; and

(b) has, since the date of his entry into

Assam, been ordinarily resident 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 Section 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.\027In the case of every person

seeking registration under this sub-section,

the opinion of the Tribunal constituted

under the Foreigners (Tribunals) Order,

1964 holding such person to be a foreigner,

shall be deemed to be sufficient proof of the

requirement under clause (c) 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,\027

(i) if such opinion contains a finding

with respect to such other requirement,

decide the question in conformity 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."

The Foreigners Tribunal, it is said, has not been set

up in any other part of India except the State of Assam. A

different regime, therefore, exists in Assam from the rest of the

country. If no tribunal has been established in the rest of the

country, foreigners are identified by the executive machinery of

the State. Thus, the province of Assam only has been singled

out for adopting a different procedure. The problem in regard

to illegal migration faced by Assam is also faced by other

States including the States of West Bengal, Tripura, etc. It is,

therefore, not in dispute that two different procedures have

been laid down by the Central Government by issuing two

different notifications on the same day.

18. This Court in Sonowal I pointed to:

(i) the Governor's report mentioning a large influx of

Bangladeshis;

(ii) the failure of the IMDT Act especially because of the

burden of proof on those who alleged that a resident of

Assam was a foreigner;

(iii) the disinclination of the Government, for political

reasons, to wholeheartedly embark upon identification

and deportation of Bangladeshis from Assam; and

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(iv) devising an Act which had no teeth and which, instead

of helping the identification, was intended to defeat

identification.

This Court opined:

(i) Section 9 of the 1946 Act regarding burden of proof is

basically on the same lines as the corresponding

provision is in UK and some other Western nations

and is based upon sound legal principle that the facts

which are peculiarly within the knowledge of a person

should prove it and not the party who avers the

negative.

(ii) Noting that the IMDT Act does not contain any

provision similar to Section 9 of the 1946 Act as

regards burden of proof and after analysis of the

provisions of the IMDT Act and the Rules made

thereunder, this Court was of the view that the

provisions thereof are very stringent as compared to

the provisions of the 1946 Act or the 1964 Order.

(iii) The IMDT Act and the Rules made thereunder negate

the constitutional mandate contained in Article 355 of

the Constitution of India and must be struck down.

(iv) There being no provision like Section 9 of the 1946 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 1946 Act may have been passed, if he is in any

part of India other than the State of Assam.

(v) The provisions of the 1946 Act are far more effective in

identification and deportation of foreigners who have

illegally crossed the international border and have

entered India without any authority of law and have no

authority to continue to remain in India.

(vi) Since the classification made whereby IMDT Act is

made applicable only to the State of Assam has no

rational nexus with the policy and object of the Act, it

is clearly violative of Article 14 of the Constitution of

India and is liable to be struck down on this ground

also.

(vii) The procedure under the 1946 Act and the 1964 Order

is just, fair and reasonable and does not offend any

constitutional provision.

(viii) All cases pending before the Tribunals under the IMDT

Act shall stand transferred to the Tribunals

constituted under the 1964 Order and shall be decided

in the manner provided in the 1946 Act, the Rules

made thereunder and the procedure prescribed under

the 1964 Order.

(ix) The Union of India is directed to constitute sufficient

number of Tribunals under the 1964 Order to

effectively deal with cases of foreigners, who have

illegally come from Bangaldesh or are illegally residing

in Assam.

19. Whereas in terms of the 1964 Order the Central

Government alone could exercise its jurisdiction in the matter

of reference of the question as to whether a person is or is not

a foreigner, in terms of the 2006 Order, any other authority

specified in this behalf will also be entitled to do so. It may be

true that in terms of the 1964 Order whenever a complaint is

received or if any material is collected by an authority of the

Central Government, an investigation therefor could have been

initiated. Only upon making such investigation or inquiry, the

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Central Government was required to form a prima facie

opinion for reference of the said question to the Tribunal. The

Tribunal on receipt of such a reference shall issue notice upon

the proceedee whereafter the burden of proof would lie upon

him. It may be true that by reason of paragraph 2 of the 2006

Order, the Central Government is now bound to refer the

question as to whether a person is or is not a foreigner. But, it

may not be correct to contend that only because it is bound to

make such reference, it would act merely as a post office. The

Central Government or the authorities specified in this behalf

by reason of the provisions of the 2006 Order are not

precluded from making an investigation or inquiry into a

complaint received. It may receive a complaint that a large

number of persons whose names have been disclosed, are

foreigners. But, there cannot be any doubt whatsoever that a

preliminary inquiry which may not be as intrusive as was

necessary in terms of the 1964 Order must be held so as to

form an opinion as to whether there is any truth or substance

in the allegations made in the complaint.

20. The learned Solicitor General does not state before

us that the Central Government in the changed scenario acts

merely as a post office. It would, therefore, be necessary that

some sort of application of mind would be necessary on the

part of the authorities of the Central Government.

21. Even in terms of the 1964 Order, keeping in view

the provisions of the Constitution of India, the Citizenship Act

and the 1946 Act as interpreted by this Court in Sonowal I, it

was the solemn duty of the Central Government to make a

reference. A discretionary jurisdiction, however, was granted

to the Central Government only for the purpose of arriving at a

subjective satisfaction.

22. By reason of the 2006 Order, the requirement to

arrive at such satisfaction on the part of the Central

Government, cannot be said to have been taken away, in view

of the fact that expressions "by order" and "refer the question"

still exist in the statute and, thus, appropriate meaning

thereto should be assigned. Before a statutory authority

passes an order or makes a reference to a Tribunal

indisputably, therefor a satisfaction is to be arrived at.

Whenever such a satisfaction is to be arrived at, which must

be reflected in the order of reference, the same may be subject

to the principles of the judicial review. Such a decision for

the purpose of making a reference is to be arrived at on the

basis of the available materials. To that extent, therefore,

application of mind is necessary.

23. In The Barium Chemicals Ltd. and Another v. Sh.

A.J. Rana and Others [(1972) 1 SCC 240], it was held:

"14. The words "considers it necessary"

postulate that the authority concerned has

thought over the matter deliberately and with

care and it has been found necessary as a

result of such thinking to pass the order. The

dictionary meaning of the word "consider" is

"to view attentively, to survey, examine,

inspect (arch), to look attentively, to

contemplate mentally, to think over, meditate

on, give heed to, take note of, to think

deliberately, bethink oneself, to reflect" (vide

Shorter Oxford Dictionary). According to Words

and Phrases \027 Permanent Edition Vol. 8-A "to

consider" means to think with care. It is also

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mentioned that to "consider" is to fix the mind

upon with a view to careful examination; to

ponder; study; meditate upon, think or reflect

with care. It is therefore, manifest that careful

thinking or due application of the mind

regarding the necessity to obtain and examine

the documents in question is sine qua non for

the making of the order. If the impugned order

were to show that there has been no careful

thinking or proper application of the mind as

to the necessity of obtaining and examining

the documents specified in the order, the

essential requisite to the making of the order

would be held to be non-existent.

15. A necessary corollary of what has been

observed above is that mind has to be applied

with regard to the necessity to obtain and

examine all the documents mentioned in the

order. An application of the mind with regard

to the necessity to obtain and examine only a

few of the many documents mentioned in the

order, while there has been no such

application of mind in respect of the remaining

documents, would not be sufficient compliance

with the requirements of the statute. If,

however, there has been consideration of the

matter regarding the necessity to obtain and

examine all the documents and an order is

passed thereafter, the Court would stay its

hand in the matter and would not substitute

its own opinion for that of the authority

concerned regarding the necessity to obtain

the documents in question."

The said principle has been reiterated in Kaiser-I-

Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North)

Ltd., [(2002) 8 SCC 182] in the following terms:

"14. In view of the aforesaid requirements,

before obtaining the assent of the President,

the State Government has to point out that the

law made by the State Legislature is in respect

of one of the matters enumerated in the

Concurrent List by mentioning entry/entries of

the Concurrent List and that it contains

provision or provisions repugnant to the law

made by Parliament or existing law. Further,

the words "reserved for consideration" would

definitely indicate that there should be active

application of mind by the President to the

repugnancy pointed out between the proposed

State law and the earlier law made by

Parliament and the necessity of having such a

law, in the facts and circumstances of the

matter, which is repugnant to a law enacted by

Parliament prevailing in a State. The word

"consideration" would manifest that after

careful thinking over and due application of

mind regarding the necessity of having State

law which is repugnant to the law made by

Parliament, the President may grant assent\005"

Yet again in State (Anti-Corruption Branch), Govt. of

NCT of Delhi and Another v. Dr. R.C. Anand and Another

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[(2004) 4 SCC 615], as regards necessity for application of

mind for grant of sanction, this Court opined:

"The validity of the sanction would, therefore,

depend upon the material placed before the

sanctioning authority and the fact that all the

relevant facts, material and evidence including

the transcript of the tape record have been

considered by the sanctioning authority.

Consideration implies application of mind. The

order of sanction must ex facie disclose that

the sanctioning authority had considered the

evidence and other material placed before it.

This fact can also be established by extrinsic

evidence by placing the relevant files before the

Court to show that all relevant facts were

considered by the sanctioning authority. (See

Jaswant Singh v. State of Punjab and State of

Bihar v. P.P. Sharma)"

Submission of the learned counsel to the effect that

the Central Government could reject a large number of

applications which would render the entire process ineffective

cannot be accepted. The bounden duties of the Central

Government are replete in the Constitution of India and the

statutory provisions, reference whereto has been made in

detail by this Court in Sonowal I.

24. It may be true that while interpreting the provisions

of the Act, the changes made in the expression will have to be

taken into consideration; but, while doing so, the burden of

the Central Government cannot, in our opinion, be thrown on

the Tribunal.

25. In Sonowal I, this Court has noticed the lack of will

on the part of the Central Government to proceed against the

foreigners.

26. The Central Government may not for the said

purpose retain a discretion in its own hands but by reason

thereof it cannot also refuse to perform its duties to make

investigation in the matter for the purpose of rendition of

proper assistance to the Tribunal for determining the question.

After all the duty to protect the State and the nation from

aggression rests with the Central Government.

27. Even assuming that it is imperative on the part of

the Central Government to refer the question without making

an investigation, the Order does not debar the said authority

to place its view point while referring a matter to the Tribunal.

28. There is an inherent danger if it is to be concluded

that the Central Government would act as a post office. For

the said purpose, we may consider the question from a

different angle.

29. If a complaint is made and the Central Government

merely forwards it, there will be no material before the

Tribunal on the basis of which it would be able to determine

whether sufficient ground for proceeding with the matter

exists or not. If on the basis of such a complaint, the Tribunal

comes to a conclusion that there is no sufficient ground, it will

have no other option having regard to the phraseology used in

paragraph 3 of the 2006 Order to dismiss the same. But, if

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the Tribunal is formulating the ground so as to enable it to

communicate the same to the alleged foreigner, the Tribunal

would be able to proceed methodologically.

30. It is not in dispute that whereas in terms of the

1964 Order the entire burden was on the alleged foreigner; by

reason of the 2006 Order, the proceeding before the Tribunal

would be in two parts. Firstly, the Tribunal will have no other

option but to apply its mind to the materials on record to

enable itself to arrive at a conclusion as to whether there

exists any sufficient ground for proceeding in the matter. For

the said purpose, not only a satisfaction is required to be

arrived at by the Tribunal but the basic facts in respect thereof

are required to be prima facie established. The statute is

silent as to on what basis such basic facts are required to be

established. No criterion has been laid down therefor. At that

juncture, the Tribunal may not have any assistance of any

other authority. Ex facie, the Tribunal would have to take the

entire burden upon itself.

31. It is one thing to say that a statutory Tribunal

before issuing a notice must satisfy itself as regards the

existence of a prima facie case but it is another thing to say

that before it issues a notice the basic facts have to be prima

facie established. The expression "establish" has a definite

connotation.

In P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd

edition, it has been observed:

"For the purpose of Art. 30(1) the word

'establish' means "to bring into existence."

Such establishment of basic facts ex facie would be

contrary to the provisions of Section 9 of the 1946 Act.

32. The procedure laid down in paragraph 3 of the 1964

Order ensures that the burden of proving that he was a citizen

was on the alleged illegal immigrant. Section 9 of the 1946 Act

is based on a sound principle of law. It is also recognized by

the Indian Evidence Act in the form of Section 106 thereof.

The evidence required for deciding as to whether a person is or

is not a foreigner are necessarily within the personal

knowledge of the person concerned.

33. We may notice that this Court categorically opined

that the procedure under the 1946 Act and the Rules were just

and fair and did not offend any constitutional provision, while

issuing a direction that the Tribunals under the IMDT Act

would not function and the matter should be adjudicated

upon in terms of the provisions of the 1946 Act and the Rules

thereunder. By reason of the impugned Order the Central

Government has created tribunals only for Assam and for no

other part of the country.

34. It may be true that different procedure has to be

applied in regard to a person who is still in the foreign soil and

those who are in the Indian territory as has been held in

[Shaughnessy, District Director of Immigration and

Naturalization v. United States ex rel. Mezei, 345 US 206 and

Supreme Court of the United States Kestutis Zadvydas v.

Christine G. Davis and Immigration and Naturalization

Service, 533 US 678], whereupon Mr. Venugopal placed

strong reliance, but the said question does not arise in the

instant case.

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35. Principle of Natural Justice, indisputably is required

to be complied with before a Tribunal passes an order of

deportation. The 1946 Act and the Orders framed thereunder

contain inbuilt procedure. The procedures laid down therein

are fair and reasonable. Only because, the burden of proof is

on the proceedee, the same by itself would not mean that the

procedure is ultra vires; the provisions of Article 21 of the

Constitution of India. Article 21 would not be offended if the

procedure is fair and reasonable.

36. In Sonowal I, a singular contention based on

applicability of Article 21 of the Constitution of India has been

negatived by this Court stating:

"73. It is not possible to accept the submission

made. The view taken by this Court is that in a

criminal trial where a person is prosecuted

and punished for commission of a crime and

may thus be deprived of his life or liberty, it is

not enough that he 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 of a

foreigner and his deportation, 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 1-1-1966

and 24-3-1971 in view of the language used in

Section 6-A of the Citizenship Act. It is,

therefore, not open to the Union of India or the

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. In our opinion, the procedure

under the Foreigners Act and the Foreigners

(Tribunals) Order, 1964 is just, fair and

reasonable and does not offend any

constitutional provision."

37. Another aspect of the matter cannot also be lost

sight of. The 2006 Order is a subordinate legislation. It

cannot, thus, violate a substantive law made by the

Parliament.

In Kerala Samsthana Chethu Thozhilali Union v.

State of Kerala & Ors. [(2006) 3 SCALE 534], this Court

observed :

"A rule is not only required to be made in

conformity with the provisions of the Act

whereunder it is made, but the same must be

in conformity with the provisions of any other

Act, as a subordinate legislation cannot be

violative of any plenary legislation made by the

Parliament or the State Legislature."

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It was further stated :

"The Rules in terms of sub-section (1) of

Section 29 of the Act, thus, could be framed

only for the purpose of carrying out the

provisions of the Act. Both the power to frame

rules and the power to impose terms and

conditions are, therefore, subject to the

provisions of the Act. They must conform to

the legislative policy. They must not be

contrary to the other provisions of the Act.

They must not be framed in contravention of

the constitutional or statutory scheme.

In Ashok Lanka and Another v. Rishi

Dixit and Others [(2005) 5 SCC 598], it was

held:

"\005 We are not oblivious of the fact that

framing of rules is not an executive act

but a legislative act; but there cannot be

any doubt whatsoever that such

subordinate legislation must be framed

strictly in consonance with the legislative

intent as reflected in the rule-making

power contained in Section 62 of the Act."

In Bombay Dyeing & Mfg. Co. Ltd. v.

Bombay Environmental Action Group & Ors.

[2006 (3) SCALE 1], this Court has stated the

law in the following terms:

"A policy decision, as is well known,

should not be lightly interfered with but it

is difficult to accept the submissions

made on behalf of the learned counsel

appearing on behalf of the Appellants

that the courts cannot exercise their

power of judicial review at all. By reason

of any legislation whether enacted by the

legislature or by way of subordinate

legislation, the State gives effect to its

legislative policy. Such legislation,

however, must not be ultra vires the

Constitution. A subordinate legislation

apart from being intra vires the

Constitution, should not also be ultra

vires the parent Act under which it has

been made. A subordinate legislation, it

is trite, must be reasonable and in

consonance with the legislative policy as

also give effect to the purport and object

of the Act and in good faith."

In Craies on Statute Law, 7th edition, it is

stated at page 297:

"The initial difference between

subordinate legislation (of the kind dealt

with in this chapter) and statute law lies

in the fact that a subordinate law-making

body is bound by the terms of its

delegated or derived authority, and that

courts of law, as a general rule, will not

give effect to the rules, etc., thus made,

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unless satisfied that all the conditions

precedent to the validity of the rules have

been fulfilled. The validity of statutes

cannot be canvassed by the courts, the

validity of delegated legislation as a

general rule can be. The courts therefore

(1) will require due proof that the rules

have been made and promulgated in

accordance with the statutory authority,

unless the statute directs them to be

judicially noticed; (2) in the absence of

express statutory provision to the

contrary, may inquire whether the rule-

making power has been exercised in

accordance with the provisions of the

statute by which it is created, either with

respect to the procedure adopted, the

form or substance of the regulation, or

the sanction, if any, attached to the

regulation : and it follows that the court

may reject as invalid and ultra vires a

regulation which fails to comply with the

statutory essentials."

[See also Vasu Dev Singh & Ors. v. Union of India & Ors.,

2006 (11) SCALE 108]

38. In Sonowal I, referring to R. v. Oliver, (1943) 2 All

ER 800 and Williams v. Russel, (1993) 149 LT 190, it was

noticed

"30. In R. v. Oliver the accused was charged

with having sold sugar as a wholesale seller

without the necessary licence. It was held that

whether the accused had a licence was a fact

peculiarly within his own knowledge and proof

of the fact that he had a licence lay upon him.

It was further held that in the circumstances

of the case the prosecution was under no

necessity to give prima facie evidence of non-

existence of a licence. In this case reference is

made to some earlier decisions and it will be

useful to notice the same. In R. v. Turner the

learned Judge observed as follows: (All ER

p. 715 D)

"I have always understood it to be a

general rule that if a negative averment be

made by one party, which is peculiarly

within the knowledge of the other, the party

within whose knowledge it lies, and who

asserts the affirmative is to prove it and not

he who avers the negative."

31. In Williams v. Russel the learned Judge

held as under:

"On the principle laid down in R. v.

Turner and numerous other cases where it

is an offence to do an act without lawful

authority, the person who sets up the lawful

authority must prove it and the prosecution

need not prove the absence of lawful

authority. I think the onus of the negative

averment in this case was on the accused to

prove the possession of the policy required

by the statute."

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There cannot, however, be any doubt whatsoever

that adequate care should be taken to see that no genuine

citizen of India is thrown out of the country. A person who

claims himself to be a citizen of India in terms of the

Constitution of India or the Citizenship Act is entitled to all

safeguards both substantive and procedural provided for

therein to show that he is a citizen.

39. Status of a person, however, is determined

according to statute. The Evidence Act of our country has

made provisions as regards 'burden of proof'. Different

statutes also lay down as to how and in what manner burden

is to be discharged. Even some penal statutes contain

provisions that burden of proof shall be on the accused. Only

because burden of proof under certain situations is placed on

the accused, the same would not mean that he is deprived of

the procedural safeguard.

In Hiten Pal Dalal v. Bratindranath Banerjee [(2001)

6 SCC 16], this Court categorically opined :

"\005Presumptions are rules of evidence and do

not conflict with the presumption of innocence,

because by the latter, all that is meant is that

the prosecution is obliged to prove the case

against the accused beyond reasonable doubt.

The obligation on the prosecution may be

discharged with the help of presumptions of

law or fact unless the accused adduces

evidence showing the reasonable possibility of

the non-existence of the presumed fact.

23. In other words, provided the facts required

to form the basis of a presumption of law exist,

no discretion is left with the court but to draw

the statutory conclusion, but this does not

preclude the person against whom the

presumption is drawn from rebutting it and

proving the contrary. A fact is said to be

proved when,

"after considering the matters before it,

the court either believes it to exist, or

considers its existence so probable that a

prudent man ought, under the

circumstances of the particular case, to

act upon the supposition that it exists"

Therefore, the rebuttal does not have to be

conclusively established but such evidence

must be adduced before the court in support

of the defence that the court must either

believe the defence to exist or consider its

existence to be reasonably probable, the

standard of reasonability being that of the

"prudent man"".

Moreover, there exists a difference between a

burden of proof and onus of proof.

In Anil Rishi v. Gurbaksh Singh [2006 (5) SCALE

153], this Court observed :

"There is another aspect of the matter

which should be borne in mind. A distinction

exists between a burden of proof and onus of

proof. The right to begin follows onus

probandi. It assumes importance in the early

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stage of a case. The question of onus of proof

has greater force, where the question is which

party is to begin. Burden of proof is used in

three ways : (i) to indicate the duty of bringing

forward evidence in support of a proposition at

the beginning or later; (ii) to make that of

establishing a proposition as against all

counter evidence; and (iii) an indiscriminate

use in which it may mean either or both of the

others. The elementary rule is Section 101 is

inflexible. In terms of Section 102 the initial

onus is always on the plaintiff and if he

discharges that onus and makes out a case

which entitles him to a relief, the onus shifts to

the defendant to prove those circumstances, if

any, which would disentitle the plaintiff to the

same."

40. Having regard to the fact that the Tribunal in the

notice to be sent to the proceedee is required to set out the

main grounds; evidently the primary onus in relation thereto

would be on the State. However, once the Tribunal satisfied

itself about the existence of grounds, the burden of proof

would be upon the proceedee.

41. In Sonowal I, this Court clearly held that the burden

of proof would be upon the proceedee as he would be

possessing the necessary documents to show that he is a

citizen not only within the meaning of the provisions of the

Constitution of India but also within the provisions of the

Citizenship Act.

It was stated:

"26. There is good and sound reason for

placing the burden of proof upon the person

concerned who asserts to be a citizen 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. Sometimes the place

of birth of his grandparents may also be

relevant like under Section 6-A(1)(d) of the

Citizenship Act. All these facts would

necessarily be within the personal knowledge

of the person concerned and not of the

authorities of the State. After he has given

evidence on these points, the State authorities

can verify the facts and can then lead evidence

in rebuttal, if necessary. If the State

authorities dispute the claim of citizenship 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 of any person,

the burden of proving that fact is upon him."

The Court noticed that even in criminal cases,

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under certain statutes, the burden of proof would be on the

accused.

42. For the aforementioned reasons also, in our

opinion, the impugned subordinate legislation cannot be

sustained as it does not the test of the reasoning in Sonowal I.

43. In the face of the clear directions issued in Sonowal

I, it was for the Authority concerned to strength the Tribunals

under the 1964 Order and to make them work. Instead of

doing so, the 2006 Order has been promulgated. It is not as if

the respondents have found the 1964 Order unworkable in the

State of Assam; they have simply refused to enforce that Order

in spite of directions in that behalf by this Court. It is not for

us to speculate on the reasons for this attitude. The earlier

decision in Sonowal, has referred to the relevant materials

showing that such uncontrolled immigration into the North-

Eastern States posed a threat to the integrity of the nation.

What was therefore called for was a strict implementation of

the directions of this Court earlier issued in Sonowal I, so as to

ensure that illegal immigrants are sent out of the country,

while in spite of lapse of time, the Tribunals under the 1964

Order had not been strengthened as directed in Sonowal I.

Why it was not so done, has not been made clear by the

Central Government. We have to once again lament with

Sonowal I that there is a lack of will in the matter of ensuring

that illegal immigrants are sent out of the country.

44. It appears that the 2006 Order has been issued just

as a cover up for non implementation of the directions of this

Court issued in Sonowal I. The Order of 2006, in our view, is

clearly unnecessary in the light of the 1946 Act and the Orders

made thereunder and the directions issued in Sonowal I. It

does not serve the purpose sought to be achieved by the 1946

Act or the Citizenship Act and the obligations cast on the

Central Government to protect the nation in terms of Article

355 of the Constitution of India highlighted in Sonowal. We

have also earlier struck down the repeal of the 1964 Order as

regards Assam. The 2006 Order is therefore found to be

unreasonable and issued in an arbitrary exercise of power. It

requires to be quashed or declared invalid.

45. We therefore allow these Writ Petitions and quash

the 2006 order and the Foreigners (Tribunal) Amendment

Order 2006 and direct the respondents to forthwith implement

the directions issued by this Court in Sonowal I. No time limit

for implementation was fixed in Sonowal I with the hope that

the Central Government would implement the directions

within a reasonable time. But now that it has not been done

and we do not find adequate reasons for justifying the non-

implementation of the directions issued in Sonowal I, we direct

that the directions issued to the Union of India to constitute

sufficient number of Tribunals under the 1964 Order to

effectively deal with the cases of foreigners who have illegally

come from Bangladesh or are residing in Assam, be

implemented with a period of four months from this date.

46. The Writ Petitions are thus allowed with costs.

Counsel's fees assessed at Rs. 25,000/-.