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CASE NO.:

Writ Petition (civil) 131 of 2000

PETITIONER:

Sarbananda Sonowal

RESPONDENT:

Union of India & Anr.

DATE OF JUDGMENT: 12/07/2005

BENCH:

R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

G.P. MATHUR, J.

1. This writ petition under Article 32 of the Constitution of India

has been filed by way of public interest litigation for declaring certain

provisions of the Illegal Migrants (Determination by Tribunals) Act,

(Act No.39 of 1983) 1983 as ultra vires the Constitution of India, 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 (Determination

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 Chairman of the North

East Students' Organisation, which is an umbrella organization of

students' association from Assam, Meghalaya, Manipur, Nagaland,

Tripura and Arunachal Pradesh and has been actively involved in

issues concerning the rights of the people of Assam including the

question of illegal migrants 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

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possession of valid 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 of the 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 view of the problem of illegal migration of

foreigners into Assam and their continued presence therein, a State-

wise 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

of India and the State of Assam, 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 also contained a 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 and has been resident in Assam since then is deemed to

be a citizen of India. However, if such a person entered into Assam

between 1st 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 10 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.

3. It is further pleaded that after signing of the Assam Accord,

several assurances were given and statements have been made by the

Central Government that it is examining the failure of the 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 class-wise 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 Union Home Minister in a meeting held on 11th 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

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made to certain other meetings with the officers of Government of

India (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 of

the Act was under active consideration of the Government. A meeting

was again held on 18th March, 1999 between the representatives of the

Government of India and Government of Assam and also of All

Assam Students' Union, wherein it was assured that the repeal of the

IMDT 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 IMDT 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

of Home Affairs. In paragraph 7 of this affidavit, it was stated that a

proposal to repeal the IMDT Act is under consideration of

Government of India. A copy of the reply given by Shri I.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 25th 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 of all 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 of Bangladeshi 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) ethnic 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;

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4. It is difficult to make a realistic estimate of the

number of illegal immigrants from Bangladesh because

they enter surreptitiously 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 of all 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 action to be taken in respect of persons 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, 1946, 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 of the 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 been

extremely dismal. According to the information

furnished by the Government of Assam, the progress in

respect of detection/expulsion of illegal migrants (those

who entered Assam on or after 25.3.1971 upto

30.4.2000) is as follows:

1

Total number of enquiries initiated

3,10,759

2

Total number of enquiries completed

3,07,955

3

Total number of enquiries referred to Screeing

Committee

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3,01,986

4

Total number of enquiries made by the Screening

Committee

2,98,465

5

Total number of enquiries referred to IM(DT)s

38,631

6

Total number of enquiries disposed of by IM(DT)s

16,599

7

Total number of persons declared as illegal

migrants

10,015

8

Total number of illegal migrants physically

expelled

1,481

9

Total number of illegal migrants to whom

expulsion order served

5,733

10

Total number of enquiries pending with Screening

Committee

3,521

11

Total number of enquiries pending with the

Tribunal

22,072

In reply to para 9, it is submitted that the Chief

Minister of Assam had requested the then Prime Minister

vide his letter dated 22.6.96 regarding repeal of the

IMDT Act. The Chief Minister again reiterated for

scrapping the IMDT Act, vide his letter 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. Large 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,

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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-`-vis Hindu population

for the decades 1951-61, 1961-71 and 1971-1991 is as

follows:

Year

Assam

Muslim

Hindu

1951-1961

38.37

33.70

1961-1971

30.99

37.18

1971-1991

77.42

41.89

(*Source \026 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 of decadal increase in

population during 1981-1991 is 23.85% whereas in the

Border districts of Assam namely, Karimganj shows

decadal increase of 42.08%, 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."

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 31st 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 of post 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 2001 praying that the State of Assam be permitted to

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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, 2001 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 is 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

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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 seriously

impaired the security of the nation, particularly in the

present circumstances. The need for expeditious

identification of illegal 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 & Another vs. Union of India and

others \026 Writ Petition (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 citizenship of India. This is clearly

unconstitutional and violative of the principles of

equality. 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 issues indicated 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 of India 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 IMDT 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 light

and 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

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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 of the

North-Eastern Congress (I) Co-Ordination Committee dated 3rd July,

1992 wherein it was recorded as under :-

"20.1 There are infiltrations \026 though it is a difficult task

to examine the precise number.

20.2 The infiltrations are not only by minorities of

Bangladesh but also from the majority Muslims.

In absolute terms, the number of Muslims crossing

into India is likely to be much larger than that of

non-Muslims.

20.3 An ideological support is given to the phenomenon

by the Islamic Fundamentalists creating the vision

of a larger country comprising Bangladesh and 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 of this 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 of migrants 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 were

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 IMDT

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 of inquiries were completed by the

Tribunals under the Foreigners Act to detect those foreigners who

came into Assam during the period 1st January, 1966 to 24th March,

1971 and 29189 persons were declared as foreigners and 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

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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 of 2004, the copy of the memorandum submitted

before the Parliamentary Standing Committee of Home Affairs on

"The Illegal Migrants Laws (Replacing & Amending) Bill, 2003" on

behalf of Government of Assam has been filed, which contains the

figures regarding inquiries conducted upto 31st August, 2003 and the

same is as under :-

1.

Total number of enquiries initiated

386249

2.

Total number of enquiries completed

379521

3.

Total number of enquiries referred to Screening

Committee

362592

4.

Total number of enquiries made by the Screening

Committee

359733

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

orders served

6159

10.

Total number of enquiries pending with the

Screening Committee

2859

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

Chief of 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 :-

"1. The unabated influx of illegal 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

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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 of

Assam. It's more dangerous dimensions of greatly

undermining our national security, is ignored. The long

cherished design of Greater 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

HISTORICAL BACKGROUND

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 \026 "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.

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 labour 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.

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16. Mr. Inderjit Gupta, 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

(1) 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 some 50 Assamese Muslim youths

having gone for training to Afghanistan and Kashmir.

CONSEQUENCES

22. The dangerous consequences of large scale illegal

migration from Bangladesh, both for the people 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 so.

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,

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their political control will be a weakened and their

employment opportunities will be undermined.

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 of India

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 of All 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 SETTLEMENT

Government have all along been most anxious to find a

satisfactory solution to the problem of foreigners in

Assam. The All Assam Student Union (AASU) and the

All Assam Gana Sangram Parishad (AAGSP) have also

expressed their keenness to find 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 of the 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 1.1.1966

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(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 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 introduced w.e.f. 7.12.1985. The relevant provisions

of Section 6-A are being reproduced below: -

"6(A) Special provisions as to citizenship of persons

covered by the Assam Accord. - (1) For the purposes of

this section \026

(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 1st

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) and who have been ordinarily resident in Assam

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since the dates of their entry into Assam shall be deemed

to be citizens of India as from the 1st day of January,

1966.

(3) Subject to the provisions of sub-sections (6) and

(7), every person of Indian origin who \026

(a) came to Assam on or after the 1st day of January,

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 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 \026 In 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 ) 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

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.

(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 person registered under sub-section (3) shall be

deemed to be a citizen of India for all purposes as from

the date of expiry of a 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 \026

(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 of

1946).

(8) Save as otherwise expressly provided in this

section, the provisions of this section shall have effect

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not withstanding anything contained in any other law for

the time being in force."

13. In this writ petition we are basically concerned with the

constitutional validity of the IMDT Act, which has been made

applicable only to the State of Assam and that too for detection and

deportation of illegal migrants, who have entered India on 25th March,

1971 or thereafter. The IMDT Act has not been enforced in the rest of

the country. The election manifesto of a political party has no

relevance and cannot be taken into consideration for judging the

constitutional validity of any enactment, whether made by State or by

Centre, as it is a purely legal issue and lies within the domain of

judiciary.

14. Before adverting to the provisions of the IMDT Act, it is

necessary to have a brief look at the enactments made for dealing with

foreigners. The first enactment governing the foreigners was the

Foreigners Act, 1864, 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 of proof \026 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 person 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)

confers power to make wide ranging orders concerning a foreigner

which have been numerated in clauses (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 not 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 shall

comply with such condition as may be specified or shall be arrested or

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) of sub-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 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

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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 added 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 14C provides for some punishment for abetment

of offences under Section 14A or 14B. Section 9 of this Act is

important and it reads as under :-

"9. Burden of proof \026 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 of India 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 powers conferred by Section 3 of the

Foreigners Act. Clause 2(1) of this Order provides 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, 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 deserve to be heard, the Tribunal shall submit its

opinion to the officer or authority specified in this behalf in the order

of reference. Clause 3(1-A) provides that the Tribunal shall, before

giving its opinion on the question referred to in sub-paragraph (1-A)

of paragraph 2, give the person in respect of whom the opinion is

sought, a reasonable opportunity to represent 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 respect of

summoning and enforcing the attendance of any person and

examining him on oath, requiring the discovery and production of any

document and issuing commissions for the examination of any

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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

citizen 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 read as under :

"3. \026 General provisions for regulation and control. \026

(1) 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;

(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 leave to enter or remain in

the United Kingdom, it may be given subject to

conditions restricting his employment or

occupation in the United Kingdom, or requiring

him to register with the police, or both.

xxx xxx 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 person

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 \026

(a) a United Kingdom passport describing him as a

British citizen of the United Kingdom and

Colonies having the right of abode in the United

Kingdom; or

(b) a certificate of entitlement."

Somewhat similar provision is contained in Immigration and

Nationality Act of USA and Section 291 places the burden of proof

upon the person concerned in any removal proceeding. Section 318

provides that no person shall be naturalized unless he has been

lawfully admitted 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 show that 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 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.

Some times the place of birth of his grand parents 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

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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.

18. 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 of the accused, he has to lead evidence to prove the said

fact. In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC

404 it was held as follows:

"Section 106 is an exception to S. 101. The latter with its

illustration (a) lays down the general rule that in a

criminal case the burden of proof is on the prosecution

and S. 106 is certainly not intended to relieve it of that

duty. On the contrary, it is designed to meet certain

exceptional cases in which it would be impossible, or at

any rate disproportionately difficult, for the prosecution

to establish facts which are "especially" within the

knowledge of the accused and which he could prove

without difficulty or inconvenience. The word

"especially" stresses that. It means facts that are pre-

eminently or exceptionally within his knowledge."

In Collector of Customs, Madras v. D. Bhoormull, AIR 1974

SC 859, proceedings were initiated under Section 167(8)(c) of the

Customs Act for confiscation of contraband or smuggled goods and it

was observed:

"..............Since it is exceedingly difficult, if not

absolutely impossible for the prosecution to prove facts

which are especially within the knowledge of the

accused, it is not obliged to prove them as part of its

primary burden." (Paragraph 31)

"...............On the principle underlying S. 106 Evidence

Act, the burden to establish those facts is cast on the

person concerned; and if he fails to establish or explain

those facts, an adverse inference of facts may arise

against him, which coupled with the presumptive

evidence adduced by the prosecution or the Department

would rebut the initial presumption of innocence in

favour of that person, and in the result prove him guilty.

In state of Welt Bengal v. Meer Mohd. Umar, 2000(8) SCC 382, it

was held that the legislature engrafted special rule in Section 106 of

the Evidence Act to meet certain exceptional cases in which not only

it would be impossible but disproportionately difficult for the

prosecution to establish such facts which are specially and

exceptionally within the exclusive knowledge of the accused and

which he could prove without difficulty or inconvenience. This

principle was reiterated in Sanjai @ Kaka v. State (NCT of Delhi),

(2001) 3 SCC 190 and Ezhil v. State of Tamil Nadu, AIR 2002 SC

2017.

In R. v. Oliver, 1943 All ER 800, the accused was charged with

having sold sugar as a whole-sale 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, (1916) 5 M & S 206 : 14 Digest 430, the learned Judge

observed as follows:

"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

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affirmative, is to prove it, and not he who avers the

negative."

In Williams v. Russel, (1993) 149 LT 190, 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."

19. Section 9 of the Foreigners Act regarding burden of proof is

basically on the same lines as the corresponding provision is in U.K.

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.

20. Clause (b) of sub-Section 6-A(1) of the Citizenship Act, 1955

defines "detected to be a foreigner" and it means detected to be a

foreigner in accordance with the provisions of the Foreigners Act,

1946 and the Foreigners (Tribunals) Order 1964 by a Tribunal

constituted under the said Order. Similarly, the explanation appended

to Section 6-A(2) also refers to the "opinion of the Tribunal

constituted under the Foreigners (Tribunals) Order, 1964 holding such

person to be a foreigner". These provisions mandate the

establishment and functioning of a Tribunal constituted under the

Foreigners (Tribunals) Order, 1964 in the State of Assam. The

learned Additional Solicitor General and Shri K.K. Venugopal,

learned senior counsel for the State of Assam have made a statement

that such Tribunals are actually functioning in the State of Assam.

21. The provisions of the IMDT Act may now be examined. The

Statement of Objects and Reasons of the Illegal Migrants

(Determination by Tribunals) Act, 1983, reads as under :-

"Statement of Objects and Reasons, - The influx

of foreigners who illegally migrated into India across the

borders of the sensitive eastern and north-eastern regions

of the country and remained in the country poses a threat

to the integrity and security of the said regions. A

substantial number of such foreigners who migrated into

India after the 25th day of March, 1971, have, by taking

advantage of the circumstances of such migration and

their ethnic similarities and other connections with the

people of India, illegally remained in India without

having in their possession lawful authority so to do. The

continuance of these persons in India has given rise to

serious problems. The clandestine manner in which these

persons have been trying to pass off as citizens of India

has rendered their detection difficult. After taking into

account the need for their speedy detection, the need for

protection of genuine citizens of India and the interests of

the general public, the President promulgated, on the 15th

October, 1983, the Illegal Migrants (Determination by

Tribunals) Ordinance, 1983, to provide for the

establishment of Tribunals."

The Preamble of the Act which finally came into force on 25th

December, 1983 reads as under :-

"An Act to provide for the establishment of

Tribunals for the determination, in a fair manner, of the

question whether a person is an illegal migrant to enable

the Central Government to expel illegal migrants from

India and for matters connected therewith or incidental

thereto.

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WHEREAS a good number of the foreigners who

migrated into India across the borders of the eastern and

north-eastern regions of the country on and after the 25th

day of March, 1971, have, by taking advantage of the

circumstances of such migration and their ethnic

similarities and other connections with the people of

India and without having in their possession any lawful

authority so to do, illegally remained in India;

AND WHEREAS the continuance of such

foreigners in India is detrimental to the interests of the

public of India;

AND WHEREAS on account of the number of

such foreigners and the manner in which such foreigners

have clandestinely been trying to pass off as citizens of

India and all other relevant circumstances, it is necessary

for the protection of the citizens of India to make special

provisions for the detection of such foreigners in Assam

and also in any other part of India in which such

foreigners may be found to have remained illegally;"

Some of the provisions of the Act which are relevant are being

reproduced below :-

3. Definitions and construction of references - (1) In

this Act, unless the context requires \026

(a) xxx xxx xxx

(b) "foreigner" has the same meaning as in the

Foreigners Act, 1946;

(c) "illegal migrant" means a person in respect of

whom each of the following conditions is satisfied,

namely:-

(i) he has entered into India on or after the 25th

day of March, 1971;

(ii) he is a foreigner;

(iii) he has entered into India without being in

possession of a valid passport or other travel

document or any other lawful authority in

that behalf;

4. Overriding effect of the Act. \026 (1) The provisions

of this Act or of any rule or order made thereunder shall

have effect notwithstanding anything contained in the

Passport (Entry into India) Act, 1920 or the Foreigners

Act, 1946 or the Immigrants (Expulsion from Assam)

Act, 1950 or the Passport Act, 1967 or any rule or order

made under any of the said Acts and in force for the time

being.

(2) In particular and without prejudice to the

generality of the provisions of sub-section (1), nothing in

the proviso to section 2 of the Immigrants (Expulsion

from Assam) Act, 1950 shall apply to or in relation to an

illegal migrant as defined in clause (c) of sub-section (1)

of section 3.

8. References or applications to Tribunals - (1) If

any question arises as to whether any person is or is not

an illegal migrant, the Central Government may, whether

such question has arisen on a representation made by

such person against any order under the Foreigners Act,

1946 requiring him not to remain in India or to any other

effect or has arisen in any other manner whatsoever, refer

such question to a Tribunal for decision.

(2) Any person may make an application to the

Tribunal, for its decision, as to whether the person whose

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name and other particulars are given in the application, is

or is not an illegal migrant :

Provided that no such application shall be

entertained by the Tribunal unless the person in relation

to whom the application is made is found, or resides,

within the jurisdiction of the same police station where

the applicant has his place of residence.

(3) Every application made under sub-section (2)

shall be made in such form and in such manner as may be

prescribed and shall be accompanied by affidavits sworn

by not less than two persons residing within the

jurisdiction of the same police station in which the person

referred to in the application is found, or residing,

corroborating the averments made in the application, and

shall also be accompanied by such fee, being not less

than (ten) and not more than one hundred, rupees, as may

be prescribed.

(4) Every reference under sub-section (1) shall be

made to the Tribunal within the territorial limits of whose

jurisdiction the place of residence of the person name in

such reference is, at the time of making such reference,

situated :

Provided that where such person has no place of

residence, the reference shall be made to the Tribunal

within the territorial limits of whose jurisdiction such

person is, at the time of making such reference, found.

(5) Every application under sub-section (2) shall

be made to the Tribunal within the territorial limits of

whose jurisdiction the person named in such application

is found or, as the case may be, has his place of

residence, at the time of making such application.

8-A. Application to the Central Government for

reference \026 (1) Any person may make an application to

the Central Government, for decision by a Tribunal, as to

whether the person whose name and other particulars are

given in the application, is or is not an illegal migrant,

and where any such application is received by the Central

Government, it may, on the basis of any information in

its possession or after making such inquiry as it deems

fit, reject the application on the ground that the

application is frivolous or vexatious or it does not comply

with the requirements of this section or refer such

application to a Tribunal for decision.

(2) Every application made under sub-section

(1) shall be made in such form and in such manner as

may be prescribed and shall be accompanied by a

declaration by another person residing within the

jurisdiction of the same revenue sub-division in which

the applicant resides in such form as may be prescribed

to the effect that the particulars mentioned in the

application are true to his knowledge, information and

belief :

Provided that no person shall make more than ten

such applications or more than ten such declarations.

(3) Every reference under sub-section (1) shall

be made to the Tribunal within the territorial limits of

whose jurisdiction the place of residence of the person

named in such reference is, at the time of making such

reference, situated :

Provided that where such person has no place of

residence, the reference shall be made to the Tribunal

within the territorial limits of whose jurisdiction such

person is, at the time of making such reference, found.

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10. Procedure with respect to references under sub-

section (1) of section 8 \026 On receipt of a reference under

sub-section (1) of section 8 or sub-section (1) of section

8-A the Tribunal shall serve on the person named in such

reference, a notice, accompanied by a copy of such

reference, calling upon him to make, within a period of

thirty days from the date of receipt of such notice, such

representation with regard to the averments made in the

reference, and to produce such evidence as he may think

fit in support of his defence :

Provided that if the Tribunal is satisfied that the

person aforesaid was prevented by sufficient cause from

making his representation and from producing evidence

in support of his defence within the said period of thirty

days, it may permit him to make his representation and to

produce evidence in support of his defence, within such

further period, not exceeding thirty days, as it may, by

order, specify.

11. Procedure with respect to applications under

sub-section (2) of section 8. \026 On receipt of an

application under sub-section (2) of section 8, the

Tribunal shall issue a notice, accompanied by a copy of

the application, to the prescribed authority calling upon it

to furnish, after making such inquiry as that authority

may deem fit, a report to the Tribunal with regard to the

averments made in the application.

(2) If, on a consideration of the report made by

the prescribed authority, the Tribunal is satisfied that -

(a) the person named in the application is not an

illegal migrant or that the applicant is frivolous or

vexatious, or has not been made in good faith, the

Tribunal shall, after giving the applicant an opportunity

to be heard, reject the application ;

(b) there are reasonable grounds to believe that the

person named in the application is an illegal migrant, the

Tribunal shall issue a notice accompanied by a copy of

the application, to the person named in the application,

calling upon him to make, within thirty days from the

date of receipt of the notice, such representation with

regard to the averments made in the application and to

produce such evidence as he may think fit in support of

his defence ;

Provided that if the Tribunal is satisfied that the

person aforesaid was prevented by sufficient cause from

making his representation and from producing evidence

in support of his defence within the said period of thirty

days, it may permit him to make his representation and to

produce evidence in support of his defence, within such

further period, not exceeding thirty days, as it may, by

order, specify.

12. Determination of the question as to whether a

person is an illegal migrant - (1) The Tribunal to

which a reference has been made under section 8 or

section 8-A, or to which an application has been made

under section 8, shall after taking such evidence as may

be adduced before it and after making such inquiry as it

may think fit and after hearing such persons as it may

deem appropriate, by order, decide the question as to

whether the person named in such reference or

application, as the case may be, is or is not an illegal

migrant :

Provided that where for the determination of such

question in any case the decision on any issue renders

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any decision on any other issue or issues unnecessary, the

Tribunal may not decide such other issue or issues.

(2) Where the members of the Tribunal differ on

their opinion on any point, the Chairman of the Tribunal

shall state the point or points on which they differ and

make a reference to the President of the Appellate

Tribunal which exercises jurisdiction in relation to the

Tribunal who shall refer the case for hearing on such

point or points by a member of another Tribunal under its

jurisdiction and such point or points shall be decided

according to the opinion of that member and such

decision shall be deemed to be the decision of the

Tribunal.

(3) The Tribunal shall send a copy of every order

passed by it to the prescribed authority or authorities and

to the parties to the reference, or the application, as the

case may be.

(4) Every order passed under sub-section (1) shall,

subject to the decision of the Appellate Tribunal, be final

and shall not be called in question in any Court.

14. Appeal \026 The Central Government, or any person,

named in a reference or an application under section 8, or

any application under sub-section (2) of that section or

any person named in a reference under section 8-A may,

if it or he is not satisfied with any order made by a

Tribunal under section 12, prefer an appeal to the

Appellate Tribunal against such order.

20. Expulsion of illegal migrant \026 (1) Where a person

has been determined by a Tribunal, or, as the case may

be, by the Appellate Tribunal, to be an illegal migrant,

the Central Government shall, by order served on such

person, direct such person to remove himself from India

within such time and by such route as may be specified in

the order and may give such further directions in regard

to his removal from India as it may consider necessary or

expedient.

(2) Any police officer not below the rank of a

Superintendent of Police shall have such powers as may

be necessary, including the power to obtain a bond from

any person for the due compliance of an order under sub-

section (1) and to arrest such person in the event of his

failure to furnish such bond to the satisfaction of such

police officer.

22. Section 5 provides for establishment of Illegal Migrants

(Determination) Tribunals. Only a person who has been a District

Judge or Additional District Judge is eligible for becoming a member

of the Tribunal and each Tribunal has to consist of two members.

Section 9 gives the powers of the Tribunal. Section 15 provides for

establishment of an Appellate Tribunal which shall consist of not less

than two and not more than six members as the Central Government

may think fit and only a person who is or has been a Judge of the High

Court is eligible to be appointed as member thereof. The Appellate

Tribunal shall function in benches consisting of not less than two

members. The Memorandum of Appeal shall be accompanied by

such fee not being less than Rs.25/- or more than Rs.100/-, as may be

prescribed. Section 21A provides that it shall be lawful for the police

officer not below the rank of Superintendent of Police, if he is

satisfied that the circumstances so require, and for reasons to be

recorded in writing direct any person against whom a reference or an

application has been made under this Act to enter into a bond with or

without sureties for making himself available for inquiry. Section 25

provides that any person who contravenes or attempts to contravene or

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fails to comply with any order or direction given under Section 20 or

harbours any such person shall be punishable with imprisonment for a

term which shall not be less than one year but which may extend to

three years and with fine, which shall not be less than two thousand

rupees. The proviso to the Section empowers the Court to impose

lesser sentence or fine for adequate and special reasons.

23. In exercise of powers conferred by Section 28 of the IMDT Act,

the Central Government has made the Illegal Migrants (Determination

by Tribunals) Rules, 1984 (hereinafter referred to as 'the Rules").

Rule 2(ii) defines a "competent authority" which means the Central

Government and includes, where a State Government or any officer

subordinate to Central Government or a State Government is

empowered by notification under Section 21 to exercise and discharge

the powers and duties of the Central Government under Section 8(1)

and Section 8-A(1), such State Government or officer. Rule 3

requires that for the purpose of making the reference in relation to any

person under Section 8(1) or Section 8-A(1) to the Tribunal, the

competent authority seized of the matter shall require the

Superintendent of Police to direct an officer not below the rank of a

Sub-Inspector of Police to make an inquiry. Rules 4 to 7 lay down

that the inquiry officer who has been directed to make an inquiry shall

call upon that person (alleged illegal migrant) to give information as

regards the particulars mentioned in Form-I. He may elicit

information from any other person who may be acquainted with the

facts and circumstances of the case. The details of the inquiry have

to be entered day by day in a diary kept for the purpose setting forth

the time at which any information reached him, the time at which he

began and closed his enquiry and the place or places visited by him

and the statement of the circumstances ascertained through such

enquiry and then he has to submit a report, in Form-II with the diary,

to the immediate superior officer who shall endorse the comments

thereon and submit it to the Screening Committee. Rule 8 provides

for constitution of a Screening Committee at every sub-divisional

level where the Tribunals are established and shall consist of two

members, one of whom shall be Sub-divisional Magistrate and other a

police officer not below the rank of a Deputy Superintendent of Police

in the sub-division concerned. The Screening Committee after

scrutiny of the information contained in Form II has to then make its

recommendations to the Superintendent of Police as to whether the

person mentioned in the report is or is not an illegal migrant. Rule 9

provides that if on recommendations of the Screening Committee and

such further information as the competent authority may call for, it

appears to that authority that the question arises as to whether any

person is or is not an illegal migrant, that authority shall make a

reference to the Tribunal for its decision thereon, along with the diary,

report of inquiry officer containing the endorsement of his immediate

superior officer, recommendation of the Screening Committee and

any other further information. So a discretion has been conferred

upon the Competent Authority whether to make a reference to the

Tribunal or not. If the Competent Authority chooses not to make a

reference, there is no right of appeal and the alleged illegal migrant

remains untouched. He can then safely reside in Assam. Rules 10

and 10-A provide that the application to the Tribunal under Section

8(2) shall be in Form III and to the Central Government under Section

8-A(2) in Form V. Rule 13 provides that the Superintendent of Police

shall, as far as may be, follow the procedure as specified in Rules 3 to

8 while making an inquiry in respect of a notice issued to him by the

Tribunal under Section 11(1). Rules 14 to 19 lay down the

procedure for filing appeals to the Appellate Tribunal which has to be

in Form IV, the fee to be paid and also the contents of the

Memorandum of Appeal etc. The Rules, thus, contain a very

stringent and time consuming procedure for holding of preliminary

enquiry.

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24. In view of Section 3(1)(c) of the IMDT Act, an illegal migrant

is a person with respect to whom all the three conditions, namely, (i)

has entered India on or after 25th March, 1971; (ii) is a foreigner

which means he is not a citizen of India; and (iii) has entered India

without being in possession of a valid passport or other travel

documents or any other lawful authority in this behalf, are satisfied.

Therefore, if a foreigner has entered India on or after 25th March,

1971, he would be dealt with under the IMDT Act, while as a

foreigner who has entered any part of India including Assam before

25th March, 1971, would be dealt with under the Foreigners Act.

Section 4 of the IMDT Act is an overriding provision which lays

down that the IMDT Act or the Rule or order made therein shall have

effect notwithstanding anything contained in the Foreigners Act, 1946

or the Immigrants (Expulsion from Assam) Act, 1950 or the Passport

Act or any Rule or Order made thereunder. Section 8(1) confers

power on the Central Government to make a reference for its decision

to the Tribunal whether any person is an illegal migrant or not. This

reference can also be made on a representation made by an illegal

migrant against any order passed against him under the Foreigners Act

not to remain in India. This provision gives special advantage to an

illegal migrant in Assam, which is not available to any foreigner in

rest of India. Section 8(2) provides that any person may make an

application to the Tribunal whether any person whose name is given

in the application is or is not an illegal migrant but the proviso to this

sub-section imposes a restriction that such an application can be given

only by a person who lives within the jurisdiction of the same police

station in which the alleged illegal migrant is found or resides.

Section 8(3) imposes some further conditions and restrictions, namely,

that the application shall be accompanied by affidavits sworn by not

less than two persons residing within the jurisdiction of the same

police station in which the alleged illegal migrant is found or is

residing and a Court Fee of Rs.10/- has to be paid. Section 8-A lays

down that any person may make an application to the Central

Government for decision by a Tribunal as to whether the person

whose name and other particulars are given in the application is or is

not an illegal migrant. In view of sub-section (2) of this Section, the

application has to be accompanied by a declaration by another person

residing within the jurisdiction of the same revenue sub-division in

which the applicant resides and further conditions are imposed that no

person shall make more than ten such applications or more than ten

such declarations. The Central Government may, after making such

inquiry, as it deems fit, reject the application on the ground that it is

frivolous or vexatious. In view of the language used in Section 14

there is no right of appeal against such an order as right of appeal is

conferred only against an order passed by the Tribunal under Section

12. The order of rejection of the application will enure to the benefit

of the alleged illegal migrant and there being no right of appeal it will

attain finality making him safe and secure. If the Central Government

makes a reference it will only initiate the proceedings before the

Tribunal causing no immediate prejudice to the illegal migrant and if

the Tribunal ultimately holds against him, he will have a right of

appeal to the Appellate Tribunal.

25. It is very important to note here that IMDT Act does not

contain any provision similar to Section 9 of the Foreigners Act, 1946

regarding burden of proof. On the contrary it is conspicuously silent

about it. In such circumstances a very heavy burden is cast upon the

authorities of the State or the applicant to establish that a person is an

illegal migrant as defined in Section 3(1)(c) of IMDT Act and is liable

for deportation.

26. Rule 4 requires an inquiry officer to elicit information and

particulars from the alleged illegal migrant on the points mentioned in

Form I. Item No.5, 10, 11, 12 of this Form are as under:-

5. Address in the country of origin (village, police

station, district and country).

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10. Does the person hold any passport issued by any

foreign country ? If so furnish particulars.

11. What are the reasons for leaving the person's

country of origin ?

12. If the person has entered into India without a

passport, how the person entered India ?

(Name of village, District from which the person

entered). Date of entry.

It is elementary that a person who has illegally come from

Bangladesh to India and is residing here for his better economic

prospects or employment etc. would never disclose that he has come

from Bangladesh but would assert that he is an Indian national and

resides in India. There is no question of his telling his date of entry

or giving any information on the aforesaid points. According to

Rules 7 and 8 of the Rules, the inquiry officer has to submit a report in

Form II and Item No.5, 10, 11 and 12 are exactly identical to that in

Form I. Rules 10, 10-A and 10-B lay down that an application to the

Tribunal under Section 8(2) shall be made in Form III, an application

to the Central Government under Section 8-A(2) shall be made in

Form V and a declaration under Section 8-A(2) shall be made in

Forms V and VI. Curiously enough Column No.6 of Form III

requires the applicant to furnish the following information regarding

the alleged illegal migrant: -

(a) whether he entered India on or after 25th March, 1971;

(b) date of his entry into India;

(c) whether he is a foreigner; and

(d) whether he entered India without being in possession of a valid

passport or travel document or lawful authority in that behalf.

The contents of the application (form III) have to be affirmed by the

applicant that what is stated in the application is true to the best of his

information and belief. The application to the Central Government

has to be made in Form V which contains a similar Column 6 with

two further additions, namely;

(i) the approximate distance between the place of residence of the

applicant and the alleged illegal migrant;

(ii) since when the alleged illegal migrant is staying at the said

place.

In Column 7 the applicant has to give details of (a) documentary; and

(b) oral evidence in his possession. The application has to be

affirmed that the facts stated are true to the best of his information and

belief and that he has not made more than 10 such applications. It

contains a further clause to the following effect :

"I am aware that in the event of this application

being found as false or made with a view to cause

vexation to the person named in this application or any

member of his family, I am liable to be proceeded against

in accordance with law for giving false evidence."

Form VI which is a declaration to be made under Section

8-A(2) by another person in corroboration of the application contains

a similar affirmation clause and also the clause quoted above

regarding prosecution in the event the facts mentioned are found to be

false.

27. To give the exact date of entry into India of a Bangladeshi

national, who has illegally and surreptitiously crossed the

international border, is not only difficult but virtuously impossible. A

citizen doing his duty towards nation of pointing out the presence of a

Bangladeshi national to the authorities of the State is put under threat

of criminal prosecution, if the contents of the application are found to

be false. This is bound to have a cascading effect on citizens who will

prefer to remain a quiet spectator to the continued influx of illegal

migrants from Bangladesh rather than to take initiative in their

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detection or deportation.

28. The analysis of the provisions of IMDT Act and the Rules made

thereunder clearly demonstrate that the provisions thereof are very

stringent as compared to the provisions of Foreigners Act, 1946 or

Foreigners (Tribunals) Order, 1964, in the matter of detection and

deportation of illegal migrants. It is far more easier to secure

conviction of a person in a criminal trial where he may be awarded a

capital punishment or imprisonment for life than to establish that a

person is an illegal migrant on account of extremely difficult,

cumbersome and time consuming procedure laid down in the IMDT

Act and the Rules made thereunder. The Act does not contain any

provision for constitution of a screening committee which has been

done under the Rules and has been conferred a very wide power of

rejecting complaints against which no appeal lies. The figures

supplied in the initial affidavit filed by the State of Assam show that

more than eighty five per cent enquiries initiated were rejected and no

reference was made to the Tribunal. Similarly, the restrictions

imposed on an applicant, a citizen of India doing a national duty of

pointing out the presence of an illegal migrant in Assam, that he

should be resident of same police station or same sub-division where

the illegal migrant resides or is found does not carry any sense as

these migrants keep moving. The requirement regarding application

being accompanied by affidavits of two persons who are residents of

same police station or being accompanied by declaration of another

person who is resident of same sub-division or that not more than ten

such applications can be filed or ten such declarations made do not

serve any purpose except to create hurdles in the matter of

identification and deportation of illegal migrants. Not every person

feels that he owes a duty towards the nation and he should initiate

proceedings for deportation of an illegal migrant. The applicant also

incurs risk to his own security and safety besides spending time and

energy in prosecuting the matter. Similarly, there is hardly any sense

in making a provision for mentioning the time and date of visit to a

place by an enquiry officer in a diary. A deep analysis of the IMDT

Act and the Rules made thereunder would reveal that they have been

purposely so enacted or made so as to give shelter or protection to

illegal migrants who came to Assam from Bangladesh on or after 25th

March, 1971 rather than to identify and deport them.

29. The learned Additional Solicitor General and Shri K.K.

Venugopal have laid great stress on the submission that the IMDT Act

provides a very fair procedure for determining whether a person is an

illegal migrant or not as the said question is decided by a Judicial

Tribunal consisting of two members, who are or have been Additional

District Judges or District Judges. Similarly, the Appellate Tribunal

consists of two members, who are or have been Judge of a High

Court. The argument overlooks the fact that 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. It means

that an order in favour of an alleged illegal migrant, which is not even

appealable, can be passed by the executive but an order declaring a

person to be illegal migrant must necessarily be passed by a Judicial

Tribunal with a further right of appeal to the Appellate Tribunal.

This shows how one-sided the provisions of the IMDT Act are. They

have been so made that they only result in giving advantage and

benefits to an illegal migrant and not for achieving the real objective

of the enactment, namely, of detection and deportation of a

Bangladeshi national who has illegally crossed the border on or after

25th March, 1971.

30. The State of Assam in its affidavit filed on 24.8.2000 has

pointed out some practical problems in the implementation of the

IMDT Act due to which the Act has not become effective and the

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results are extremely poor, which are as under: -

"i) The onus of proof as illegal migrants lies on the

prosecution under IMDT Act which is opposed to

the Foreigners Act, 1946 under which the onus is

on the suspected foreigners.

ii) There is no provision in IMDT Act for compelling

the suspect to furnish particulars required in Form

No. I of IMDT Rules and a corresponding penal

provision to deal with such suspect in case of their

refusal to furnish information as required in Rule

5.

iii) There is no provision for compelling suspect

witness to furnish information or statement to

Police Officers making enquiries and as such

taking recourse to action under Section 176 IPC is

difficult in case of refusal.

iv) The Enquiry Officer is not empowered to search

home/premises of the suspects nor can he compel

the suspects to produce documents to give

necessary information.

v) Prosecution witnesses do not appear before the

Tribunal for want of necessary allowances.

vi) Once the Tribunals declares a person as an illegal

migrant, he/she becomes untraceable either before

the notice is served or during the grace period of

30 days.

vii) Notice/summons issued by the Tribunals cannot

easily be served due to frequent changes of address

by the illegal migrants in unknown destinations.

viii) The expulsion orders cannot be served as the

illegal migrants, with frequent change of address,

merge with the people of similar ethnic origin.

ix) It is provided in the Act that for filing complaint

against a suspected person to determine as to

whether he is an illegal migrant, two persons living

within the same Police Station are required to file

the complaint with filing of affidavit and an

amount of Rs.10.00 which was originally Rs.25.00

is to be deposited with the application. This

provision of the Act puts a severe restriction in

filing any complaint against an illegal migrant.

x) The Tribunals after observing a long drawn

procedure declare a person as illegal migrant who

is to be deported from India but such deportation

becomes very difficult as the illegal migrants

change their residence and shift to some other

areas.

xi) There are instances of strong resistance to the

Enquiry Officer conducting enquiries against the

illegal migrants in Char areas (riverain areas) and

other locations where there is heavy concentration

of immigrant population."

31. Section 25 of the IMDT Act provides that contravention or non-

compliance of any order made under Section 20 shall be punishable

with imprisonment for a term which may not be less than one year but

which may extend to three years and with fine, which shall not be less

than two thousand rupees. The proviso to this section says that the

Court may for special and adequate reasons to be recorded impose the

sentence of imprisonment for a term of less than one year or a fine of

less than two thousand rupees. Section 14 of the Foreigners Act (after

amendment by Act No.16 of 2004) provides for imprisonment which

may extend to five years and fine. Section 14-A and 14-B of the

Foreigners Act provide punishment for a term which shall not be less

than two years but may extend to eight years and also fine which shall

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not be less than ten thousand rupees but may extend to fifty thousand

rupees. Section 14-C provides the same punishment for abetment of

any one of the above offences. Thus, the punishment provided under

the Foreigners Act is more severe than under the IMDT Act.

32. The foremost duty of the Central 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. Kautilya in his

masterly work "The Arthashastra" has said that a King had two

responsibilities to his state, one internal and one external, for which he

needed an army. One of the main responsibilities was Raksha or

protection of the state from external aggression. The defence of the

realm, a constant preoccupation for the king, consisted not only of the

physical defence of the kingdom but also the prevention of treachery,

revolts and rebellion. The physical defensive measures were the

frontier posts to prevent the entry of undesirable aliens and forts in

various parts of the country. (Arthashastra by Kautilya \026 translated by

Shri L.N. Rangarajan, who was in Indian Foreign Service and

ambassador of India in several countries \026 published by Penguin

Books \026 1992 Edn. \026 page 676). The very first entry, namely, Entry 1

of List I of the Seventh Schedule is "Defence of India and every part

thereof including preparation for defence and all such acts as may be

conducive in times of war to its prosecution and after its termination

of effective demobilization". In fact entries 1 to 4 of List I of Seventh

Schedule mainly deal with armed forces. Article 355 of the

Constitution of India reads as under :-

355. Duty of the Union to protect States against

external aggression and internal disturbance. \026 It shall

be the duty of the Union to protect every State against

external aggression and internal disturbance and to

ensure that the Government of every State is carried on in

accordance with the provisions of this Constitution."

The word "aggression" is a word of very wide import. Various

meanings to the word have been given in the dictionaries, like, "an

assault, an inroad, the practice of setting upon anyone; an offensive

action or procedure; the practice of making attacks or encroachments;

the action of a nation in violating the rights especially the territorial

rights of another nation; overt destruction; covert hostile attitudes."

The word "aggression" is not to be confused only with "war".

Though war would be included within the ambit and scope of the

word "aggression" but it comprises many other acts which cannot be

termed as war. In Kawasaki v. Bantahm S.S. Company 1938 (3) All

ER 80, the following definition of "war" as given in Hall on

International Law has been quoted with approval :-

"When differences between States reach a point at which

both parties resort to force, or one of them does acts of

violence, which the other chooses to look upon as a

breach of the peace, the relation of war is set up, in which

the combatants may use regulated violence against each

other, until one of the two has been brought to accept

such terms as his enemy is willing to grant."

In Introduction to International Law by J.G. Starke (Chapter 18)

it is said that the war in its most generally understood sense is a

contest between two or more states primarily through their armed

forces, the ultimate purpose of each contestant or each contestant

group being to vanquish the other or others and impose its own

conditions of peace. With the passage of time, the nature of war itself

has become more distinctly clarified as a formal status of armed

hostility, in which the intention of the parties, the so-called animus

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belligerendi may be a decisive factor. The modern war may involve

not merely the armed forces of belligerent states but their entire

population. In Essays on Modern Law of War by L.C. Green the

author has said that in accordance with traditional international law,

"war is a contention between two or more States through their armed

forces, for the purpose of overpowering each other and imposing such

conditions of peace as the victor pleases.". The framers of the

Constitution have consciously used the word "aggression" and not

"war" in Article 355.

33. Article 1 of Chapter 1 of the Charter of the United Nations

gives the purposes of the United Nations and the first is to maintain

international peace and security, and to that end : to take effective

collective measures for the prevention and removal of threats to the

peace, and for the suppression of acts of aggression or other breaches

of peace, and to bring about by peaceful means, and in conformity

with the principles of justice and international law, adjustments or

settlement of international disputes or situations which might lead to a

breach of peace. On account of use of expression "acts of

aggression" it was thought necessary to define "aggression" and

explain what it exactly means. The International Law Commission

defined the term "aggression" as any act of aggression including the

employment of armed forces by a State against another State for any

purpose other than national or collective self-defence or any decision

by a competent organ of the United Nations. But at the 1954

Assembly, there was opposition to this definition. In his book

Conflict through Consensus by Julius Stone (1977 Edn.), the author

has described in great detail how after twenty years of discussion by a

Special Committee on "aggression" a consensus was arrived at and an

agreed definition was approved by the United Nations Assembly on

12th April, 1974 vide Resolution No.3314 (XXIX). The Soviet Union

pressed for inclusion of "ideological aggression" and also "the

promotion of the propaganda of fascist- nazi views, racial and national

exclusiveness, hatred and contempt for other peoples." Iran pressed

for inclusion of "indirect aggression, of intervention in another State's

internal or foreign affairs", including "direct or indirect incitement to

civil war, threats to internal security, and incitement to revolt by the

supply of arms or by other means.". Many States wanted the

definition to include "economic aggression". Shri M. Jaipal of India

advocated that in view of "modern techniques of coercion" the

definition of aggression should have included "economic pressures"

and "interventionary and subversive operations." (See page 97 of the

book) Julius Stone has quoted the following comments of Charles de

Visscher, on the notion of aggression : "aggression, in the present

state of international relations, is not a concept that can be enclosed in

any definition whatsoever : the finding that it has occurred in any

concrete case involves political and military judgments and a

subjective weighing of motives that make this in each instance a

strictly individual matter." Rapporteur Spiropoulos explained to the

International Law Commission that a determination of aggression

"can only be given in each concrete case in conjunction with all

constitutive elements of the concept of the definition". According to

the author what needs also to be kept in mind is that this is precisely

because the "aggression" notion is a fact value complex of such vast

range. (See pages 108-109 of the book). Therefore, "aggression" is a

word of very wide import having complex dimensions and would to a

large extent depend upon fact situation and its impact.

34. There was a large scale influx of persons from the then East

Pakistan into India before the commencement of December 1971

Indo-Pak war. On 3rd November, 1971, one month before the actual

commencement of the war, Dr. Nagendra Singh, India's

representative in the Sixth Committee of the General Assembly on the

Definition of Aggression, made a statement, wherein he said :-

".................The first consideration, in the view of the

Indian Delegation, is that aggression must be

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comprehensively defined. Though precision may be the

first virtue of a good definition, we would not like to

sacrifice the requirement of a comprehensive definition

of aggression at any cost. There are many reasons for

holding this view. Aggression can be of several kinds

such as direct or indirect, armed in nature or even without

the use of any arms whatsoever. There can be even

direct aggression without arms..........................................

We would accordingly support the categorical view

expressed by the distinguished delegate of Burma, the

U.K. and others that a definition of aggression excluding

indirect methods would be incomplete and therefore

dangerous.

............................................................................................

............................................................................................

For example, there could be a unique type of bloodless

aggression from a vast and incessant flow of millions of

human beings forced to flee into another State. If this

invasion of unarmed men in totally unmanageable

proportion were to not only impair the economic and

political well-being of the receiving victim State but to

threaten its very existence, I am afraid, Mr. Chairman, it

would have to be categorized as aggression. In such a

case, there may not be use of armed force across the

frontier since the use of force may be totally confined

within one's territorial boundary, but if this results in

inundating the neighbouring State by millions of fleeing

citizens of the offending State, there could be an

aggression of a worst order...............................................

What I wish to convey, Mr. Chairman, is the complexity

of the problem which does not permit of a four-line

definition of aggression much less an ad-interim

declaration on it."

(See Vol. 11 (1971) Indian Journal of International Law

p. 724)

This shows that the stand of our country before the U.N.O. was

that influx of large number of persons from across the border into

India would be an act of aggression.

35. In the later part of nineteenth century large number of Chinese

labour had started going to U.S.A. The U.S. Congress passed

legislations to restrict and then to totally stop their entry in the

country. One such Chinese labourer who had earlier worked there for

over ten years and had a certificate to that effect came back after a

visit to his home in China but was detained in the ship in San

Francisco port. His habeas corpus petition was dismissed by the

circuit court and then an appeal was taken to U.S. Supreme Court.

Certain observations made in the judgment, which is reported in 130

U.S. 581 (Chae Chan Ping vs. United States), are very illuminating

and are being reproduced below: -

"To preserve its independence, and give security against

foreign aggression and encroachment, is the highest duty

of every nation, and to attain these ends nearly all other

considerations are to be subordinated. It matters not in

what form such aggression and encroachment come,

whether from the foreign nation acting in its national

character or from vast hordes of its people crowding in

upon us. The Government, possessing the powers which

are to be exercised for protection and security, is clothed

with authority to determine the occasion on which the

powers shall be called forth; and its determination, so far

as the subjects affected are concerned, are necessarily

conclusive upon all its departments and officers. If,

therefore, the Government of the United States, through

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its legislative department, considers the presence of

foreigners of a different race in the country, who will not

assimilate with us to be dangerous to its peace and

security, their exclusion is not to be stayed because at the

time there are no actual hostilities with the nation of

which the foreigners are subjects. The existence of war

would render the necessity of the proceeding only more

obvious and pressing. The same necessity, in a less

pressing degree, may arise when war does not exist and

the same authority which adjudges the necessity in one

case must also determine it in the other."

(Emphasis supplied)

China is not contiguous to U.S.A. The journey from a port in China

to San Francisco, as the facts of the case show, used to take about a

month and having regard to the expenses involved and the carrying

capacity of a ship in those days (1870-90) the number of Chinese

labour coming to U.S.A. would have been miniscule compared to the

influx of people from Bangladesh. Yet the U.S. Supreme Court

viewed it as "aggression" and the presence of such foreigners as

"dangerous to peace and security of the nation".

36. Lord Denning in his book "The Due Process of Law" has

written an "Introduction" to Part Five \026 "Entrances and Exits" (page

155) and the opening paragraph thereof reads as under :

"In recent times England has been invaded \026 not by

enemies \026 nor by friends \026 but by those who seek

England as a haven. In their own countries there are

poverty, disease and no homes. In England there is

social security \026 a national health service and guaranteed

housing \026 all to be had for the asking without payment

and without working for it. Once here, each seeks to

bring his relatives to join him. So they multiply

exceedingly."

(Emphasis supplied)

Thus, one of the most respected and learned Judges of the

recent times has termed the influx of persons from erstwhile colonies

of Britain into Britain as "invasion". 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 definition of "aggression" as adopted by UN General

Assembly Resolution 3314 (XXIX) was, however, for a limited

purpose, namely, where the Security Council or the United Nations

Organization could interfere and adopt measures in the event of an

aggression by one nation against another and the acts enumerated

therein which may amount to aggression cannot restrict or curtail the

meaning or the sense in which the word "aggression" has been used in

Article 355 of the Constitution.

37. The very first sentence of the Statement of Objects and Reasons

of the IMDT Act says "the influx of foreigners who illegally migrated

into India across the borders of the sensitive Eastern and North-

Eastern regions of the country and remained in the country poses a

threat to the integrity and security of the said region." It further says

that "continuance of these persons in India has given rise to serious

problems." The Preamble of the Act says that "the continuance of

such foreigners in India is detrimental to the interests of the public of

India." The Governor of Assam in his report dated 8th November,

1998 sent to the President of India has clearly said that unabated

influx of illegal migrants of Bangladesh into Assam has led to a

perceptible change in the demographic pattern of the State and has

reduced the Assamese people to a minority in their own State. It is a

contributory factor behind the outbreak of insurgency in the State and

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illegal migration not only affects the people of Assam but has more

dangerous dimensions of greatly undermining our national security.

Pakistan's I.S.I. is very active in Bangladesh supporting militants in

Assam. Muslim militant organizations have mushroomed in Assam.

The report also says that this can lead to the severing of the entire

landmass of the north-east with all its resources from the rest of the

country which will have disastrous strategic and economic

consequences. The report is by a person who has held the high and

responsible position of Deputy Chief of the Army Staff and is very

well equipped to recognize the potential danger or threat to the

security of the nation by the unabated influx and continued presence

of Bangladeshi nationals in India. Bangladesh is one of the world's

most populous countries having very few industries. The economic

prospects of the people in that country being extremely grim, they are

too keen to cross over the border and occupy the land wherever it is

possible to do so. The report of the Governor, the affidavits and other

material on record show that millions of Bangladeshi nationals have

illegally crossed the international border and have occupied vast tracts

of land like "Char land" barren or cultivable land, forest area and have

taken possession of the same in the State of Assam. Their willingness

to work at low wages has deprived Indian citizens and specially

people in Assam of employment opportunities. This, as stated in the

Governor's report, has led to insurgency in Assam. Insurgency is

undoubtedly a serious form of internal disturbance which causes grave

threat to the life of people, creates panic situation and also hampers

the growth and economic prosperity of the State of Assam though it

possesses vast natural resources.

38. This being the situation there can be no manner of doubt that

the State of Assam is facing "external aggression and internal

disturbance" on account of large scale illegal migration of

Bangladeshi nationals. It, therefore, becomes the duty of Union of

India to take all measures for protection of the State of Assam from

such external aggression and internal disturbance as enjoined in

Article 355 of the Constitution. Having regard to this constitutional

mandate, the question arises whether the Union of India has taken

any measures for that purpose.

39. We have considered the provisions of the Foreigners Act,

Foreigners (Tribunals) Order, 1964 and also the IMDT Act and the

Rules made thereunder in considerable detail in the earlier part of the

judgment. They clearly demonstrate that the procedure under the

Foreigners Act and also under the Foreigners (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 of a 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

of illegal migrants. No elaborate discussion on this aspect is required

as the figures disclosed in the affidavits filed by the Union of India

and the State of Assam speak for themselves. Though inquiries were

initiated in 310759 cases under the IMDT Act but out of this only

10015 persons were declared as illegal migrants and finally only 1481

illegal migrants were physically expelled upto 30th April, 2000. This

comes to less than half per cent of the cases initiated. In the State of

West Bengal, where the Foreigners Act is applicable, 489046 persons

were actually deported between 1983 and November 1998, which is a

lesser period and even this result was termed as unsatisfactory in the

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counter affidavit filed by the Union of India. Thus, there cannot be

even a slightest doubt that the application of the 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 of such illegal migrants as any proceedings initiated against

them under the said provision which, as demonstrated above, almost

entirely ends in their favour, enables them to have a document having

official sanctity to the effect that they are not illegal migrants. As

already discussed, the presence of such a large number of illegal

migrants from 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 of alarming proportion making the life of the people of

Assam wholly insecure and the panic generated thereby has created a

fear psychosis. This has resulted in seriously hampering the growth

of the State of Assam 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.

40. The Parliament enacted the Immigrants (Expulsion from

Assam) Act, 1950 and the Statement of Objects and Reasons thereof

reads as under: -

"During the last few months a serious situation had

arisen from the immigration of a very large number of

East Bengal residents into Assam. Such large migration

is disturbing the economy of the Province, besides giving

rise to a serious law and order problem. The Bill seeks to

confer necessary powers on the Central Government to

deal with the situation."

The Preamble to the aforesaid Act says: -

"An Act to provide for the expulsion of certain

immigrants from Assam."

Section 2 of this Act lays down that if the Central Government is of

opinion that any person or class of persons, having been ordinarily

resident in any place outside India, has or have, whether before or

after the commencement of this Act, come into Assam and that the

stay of such person or class of persons in Assam is detrimental to the

interest of the general public of India or of any section thereof or of

any Scheduled Tribe in Assam, the Central Government may by order

direct such person or class of persons to remove himself or themselves

from India or Assam and give such further direction in regard to his or

their removal from India. Proviso of this Section says that it will not

apply to any person who on account of civil disturbances or the fear of

such disturbances in any area now forming part of Pakistan has been

displaced from his place of residence in such area and who has been

subsequently residing in Assam. Section 3 confers power on Central

Government to delegate the powers and duties conferred upon it by

Section 2 to any officers subordinate to the Central Government. It

may be noted that the reference to the word "East Bangal" in the

Statement of Objects and Reasons of the aforesaid Act, which came

into force on 1st March, 1950, meant East Pakistan, which is the

present Bangladesh. Realising the serious law and order problem

created by migration from East Pakistan and the serious situation

arising therefrom the said Act was enacted and conferred very wide

powers upon the Central Government to direct removal of any person

outside India. However, on account of Section 4 of the IMDT Act the

Immigrants (Expulsion from Assam) Act, 1950 has been superseded

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and the provisions of the said Act have ceased to apply to the State of

Assam. Thus by enacting the IMDT Act the Parliament has divested

the Central Government of the power to remove migrants from

Bangladesh, whose presence was creating serious law and order

problem, which fact had been realized by the Central Government as

early as in 1950. The IMDT Act instead of maintaining peace has

only revived internal disturbance.

41. Another important enactment, whose provisions have been

superseded by Section 4 of the IMDT Act, is The Passport (Entry into

India) Act, 1920. Sub-section (1) of Section 3 of this Act conferred

power upon the Central Government to make rules requiring that

persons entering India shall be in possession of passports and for all

matters ancillary or incidental to that purpose. Sub-section (2) of this

Section says that without prejudice to the generality of the powers

conferred by sub-section (1), the rules may prohibit the entry into

India or any part thereof of any person who has not in his possession

a passport issued to him and also prescribe the authorities by whom

passports must have been issued or renewed and the conditions which

they must comply for the purposes of the Act. Sub-section (3) lays

down that the rules made under this Section may provide that any

contravention thereof or of any order issued under the authority of any

such rule shall be punishable with imprisonment for a term which may

extend to three months or with fine or with both. Section 4 says that

any officer of police not below the rank of Sub-Inspector and any

officer of the customs department empowered by a general or special

order of the Central Government in this behalf may arrest without

warrant any person who has contravened or against whom a

reasonable suspicion exists that he has contravened any rule or order

made under Section 3. Section 5 provides that the Central

Government may, by general or special order, direct the removal of

any person from India who, in contravention of any rule made under

Section 3 prohibiting entry into India without passport, has entered

therein, and thereupon any officer of the Government shall have all

reasonable powers necessary to enforce such direction. By virtue of

the power conferred by this Act, all such nationals of Bangladesh,

who have entered India without a passport, could be arrested without a

warrant by a police officer not below the rank of Sub-Inspector. The

Central Government also had the power to direct removal of any such

person who had entered India in contravention of a rule made under

Section 3 prohibiting entry into India without a passport. However,

Section 4 of the IMDT Act has stripped the Central Government of its

power of removal of such person from India and also the power of

arrest of such person without warrant possessed by a police officer of

the rank of Sub-Inspector or above.

42. The above discussion leads to irresistible conclusion that the

provisions of the IMDT Act and the Rules made thereunder clearly

negate the constitutional mandate contained in Article 355 of the

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.

43. Shri Ashok Desai, learned senior counsel appearing for the writ

petitioner, has submitted that the application of the IMDT Act to the

State of Assam alone is wholly discriminatory and violates Article 14

of the Constitution as the classification made is not founded upon any

intelligible differentia and there is no nexus between the basis of the

classification and the object of the IMDT Act. Reliance has been

placed on a Seven Judge Bench decision of this Court in Budhan

Choudhry v. State of Bihar AIR 1955 SC 191 and some other cases in

support of this submission. Shri Amarendra Saran, learned

Additional Solicitor General and also Shri K.K. Venugopal, learned

senior counsel appearing for the State of Assam, have submitted that

the classification made on the basis of historical facts and/or

geographical criteria is a perfectly valid classification and the

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petitioner cannot complain of violation of Article 14 on the ground

that the IMDT Act has been made applicable only to the State of

Assam. It has been further urged that a classification made

whereunder an Act is made applicable only to some of the Districts in

a State or even to a part of a District on account of some geographical

consideration would be perfectly valid and would not offend Article

14 of the Constitution in any manner. In support of this submission,

learned counsel have placed reliance on several decisions namely,

D.P. Joshi v. State of Madhya Bharat AIR 1955 SC 334, Kishan Singh

v. State of Rajasthan AIR 1955 SC 795, Gopi Chand v. Delhi

Administration AIR 1959 SC 609, Kangshari Haldar v. State of West

Bengal AIR 1960 SC 457 and Clarence Pais v. Union of India 2001

(4) SCC 325. We do not consider it necessary to refer to all the

cases cited by learned counsel for the parties as the principle

enunciated therein is basically the same and it will suffice to refer to

only one such decision, namely, Kangshari Haldar (supra), where

Gajendragadkar,J. (as His Lordship then was) held as under :

"In considering the validity of the impugned

statute on the ground that it violates Article 14 it would

first be necessary to ascertain the policy underlying the

statute and the object intended to be achieved by it. In

this process the preamble to the Act and its material

provisions can and must be considered. Having thus

ascertained the policy and the object of the Act the court

should apply the dual test in examining its validity: Is

the classification rational and based on intelligible

differentia; and, has the basis of differentiation any

rational nexus with its avowed policy and object? If both

these tests are satisfied, the statute must be held to be

valid; and in such a case the consideration as to whether

the same result could not have been better achieved by

adopting a different classification would be foreign to the

scope of the judicial enquiry. If either of the two tests is

not satisfied, the statute must be struck down as violative

of Article 14."

44. Section 8(1) of the IMDT Act says that if any question arises as

to whether any person is or is not an illegal migrant, the Central

Government may, whether such question has arisen on a

representation made by such person against an order under the

Foreigners Act, 1946 requiring him not to remain in India or to any

other effect or has arisen in any other manner whatsoever, refer such

question to a Tribunal for decision. This provision gives very special

and advantageous right to an illegal migrant. 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 of appeal

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

situate 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.

45. As mentioned earlier, 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 a status of minority in certain districts. In such

circumstances, if the Parliament had enacted a legislation exclusively

for the State of Assam which was more stringent than the Foreigners

Act, which is applicable to rest of India, and also in the State of

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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 been made. As discussed earlier, the

provisions of the Foreigners 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. 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. If geographical consideration

becomes the sole criteria completely overlooking the other aspect of

"rational nexus with the 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. 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 and is liable to be struck down on this ground also.

46. Shri Ashok Desai, learned senior counsel for the petitioner has

also urged that the reports of the Governor and also the earlier counter

affidavits filed by Union of India and State of Assam show that the

whole demographic pattern of the State of Assam has undergone a

change and the local people of Assam have been reduced to a minority

in their own State on account of large influx of illegal migrants from

Bangladesh. According to learned counsel, this amounts to violation

of the rights guaranteed under Article 29(1) of the Constitution as the

people of Assam have a fundamental right to conserve their language,

script or culture. Undoubtedly, Article 29(1) confers a fundamental

right on all sections of the citizens residing in the territory of India or

any part thereof having a distinct language, script or culture of its own

to conserve the same and any invasion of this right would be ultra

vires. The enforcement of the IMDT Act has no doubt facilitated to a

very large extent the illegal migrants from Bangladesh to continue to

reside in Assam, who on account of their huge number affect the

language, script and culture of the local people. However, we do not

wish to express any concluded opinion whether on the fact situation

the IMDT Act can be thus said to be violating Article 29(1) of the

Constitution as the necessary factual basis for determination of this

question has not been laid in the pleadings.

47. Shri Shanti Bhushan, learned senior counsel for the petitioners

in Writ Petition No.7 of 2001 (Jamiat Ulma-E-Hind & Anr. v. Union

of India & Anr.), wherein a prayer has been made to issue a direction

to Union of India that the IMDT Act should be made applicable to

whole of India, requested that he may be heard on the question of

vires of the IMDT Act, as the decision on the said point will have a

serious impact on the writ petition in which he is appearing as

counsel. We have, therefore, heard Shri Shanti Bhushan on the

limited point regarding the constitutional validity of the IMDT Act.

Learned counsel has submitted that though some of the Articles in

Part III of the Constitution dealing with fundamental rights like

Article 19(1)(d) and (e) would not apply to a foreigner, yet he is

entitled to the protection of Article 21 as the application of the said

Article is not confined to citizens alone. Learned counsel has

submitted that in view of the clear mandate of Article 21 that no

person shall be deprived of his life or personal liberty except

according to procedure established by law, there has to be a fair

procedure for expulsion of foreigners. According to the learned

counsel, the IMDT Act lays down a fair procedure, namely

determination by a judicial Tribunal of the question of citizenship of a

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person and his deportation. It has thus been submitted that the IMDT

Act which seeks to achieve this object meets the requirements of

Article 21 of the Constitution and thus its validity cannot be

impugned. The learned Additional Solicitor General and Shri K.K.

Venugopal, during the course of their arguments, have also laid great

stress on the fact that the IMDT Act has been enacted to give

protection to genuine Indian citizens and to save their harassment.

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 1st

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 of

India 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. 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.

48. We consider it necessary here to briefly notice the law

regarding deportation of aliens as there appears to be some

misconception about it and it has been argued with some vehemence

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.

49. In Introduction to International Law by J.G. Starke (1st Indian

re-print 1994) in Chapter 12 (page 348), the law on the points has

been stated thus: -

"Most states claim in legal theory to exclude all

aliens at will, affirming that such unqualified right is an

essential attribute of soverign government. The courts of

Great Britain and the United States have laid it down that

the right to exclude aliens at will is an incident of

territorial sovereignty. Unless bound by an international

treaty to the contrary, states are not subject to a duty

under international law to admit aliens or any duty

thereunder not to expel them. Nor does international law

impose any duty as to the period of stay of an admitted

alien."

Like the power to refuse admission this is regarded as an incident of

the State's territorial sovereignty. International law does not prohibit

the expulsion enmasse of aliens. (page 351). Reference has also been

made to Article 13 of the International Covenant of 1966 on Civil and

Political Rights which provides that an alien lawfully in the territory

of a State party to the Covenant may be expelled only pursuant to a

decision reached by law, and except where compelling reasons of

national security otherwise require, is to be allowed to submit the

reasons against his expulsion and to have his case reviewed by and to

be represented for the purpose before the competent authority. It is

important to note that this Covenant of 1966 would apply provided an

alien is lawfully in India, namely, with valid passport, visa etc. and

not to those who have entered illegally or unlawfully. Similar view

has been expressed in Oppenheim's International Law (Ninth Edn.

1992 \026 in paragraphs 400, 401 and 413). The author has said that the

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reception of aliens is a matter of discretion, and every State is by

reason of its territorial supremacy, competent to exclude aliens from

the whole or any part of its territory. In paragraph 413 it is said that

the right of States to expel aliens is generally recognized. It matters

not whether the alien is only on a temporary visit, or has settled down

for professional business or any other purposes on its territory, having

established his domicile there. A belligerent may consider it

convenient to expel all hostile nationals residing or temporarily

staying within its territory; although such a measure may be very

harsh on individual aliens, it is generally accepted that such expulsion

is justifiable. Having regard to Article 13 of the International

Covenant on Civil and Political Rights, 1966, an alien lawfully in a

State's territory may be expelled only in pursuance of a decision

reached in accordance with law.

50. In Rex vs. Bottrill (1947) 1 K.B. 41, it was said that the King

under the Constitution of United Kingdom is under no obligation to

admit into the country or to retain there when admitted, any alien.

Every alien in the United Kingdom is there only because his presence

has been licensed by the King. It follows that at common law the

King can at will withdraw his license and cause the Executive to expel

the alien, whether enemy or friend. For holding so reliance was

placed on Attorney-General for Canada vs. Cain [1906] AC 542,

where Lord Atkinson said: -

"One of the rights possessed by the Supreme power in

every state is the right to refuse to permit an alien to enter

that state, to annex what conditions it pleases to the

permission to enter it, and to expel or deport from the

state, at pleasure, even a friendly alien, especially if it

considers his presence in the state opposed to its peace,

order, and good government, or to its social or material

interests."

In Chae Chan Ping vs. United States 1930 U.S. 581, the United State

Supreme Court held :

"The power of exclusion of foreigners being an incident

of sovereignty belonging to the Government of the

United States, as a part of those sovereign powers

delegated by the Constitution, the right to its exercise at

any time when, in the judgment of the Government, the

interests of the country require it, cannot be granted away

or restrained on behalf of any one. The powers of

Government are delegated in trust to the United States,

and are incapable of transfer to any other parties. They

cannot be abandoned or surrendered. Nor can their

exercise be hampered, when needed for the public good,

by any considerations of private interest. The exercise of

these public trusts is not the subject of barter or contract."

This principle was reiterated in Fong Yue Ting vs. United States 149

U.S. 698, where the court ruled: -

"The government of each state has always the right to

compel foreigners who are found within its territory to go

away, by having them taken to the frontier. This right is

based on the fact that, the foreigner not making part of

the nation, his individual reception into the territory is

matter of pure permission, of simple tolerance, and

creates no obligation. The exercise of this right may be

subjected, doubtless, to certain forms by the domestic

laws of each country; but the right exists none the less,

universally recognized and put in force."

...........................................................................................

"The order of deportation is not a punishment for crime.

It is not a banishment, in the sense in which that word is

often applied to the expulsion of a citizen from his

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country by way of punishment. It is but a method of

enforcing the return to his own country of an alien who

has not complied with the conditions upon the

performance of which the government of the nation,

acting within its constitutional authority and through the

proper departments, has determined that his continuing to

reside here shall depend. He has not, therefore, been

deprived of life, liberty or property, without due process

of law; and the provisions of the Constitution, securing

the right of trial by jury, and prohibiting unreasonable

searches and seizures, and cruel and unusual

punishments, have no application."

51. In Nishimura Ekiu v. United States 142 US 652, it was

adjudged that, although Congress might, if it saw fit, authorize the

courts to investigate and ascertain the facts upon which the alien's

right to land was made by the statutes to depend, yet Congress might

entrust the final determination of those facts to an executive officer,

and that, if it did so, his order was due process of law and no other

tribunal, unless expressly authorized by law to do so, was at liberty to

re-examine the evidence on which he acted, or to controvert its

sufficiency. Thus according to United States Supreme Court the

determination of rights of an alien even by Executive will be in

compliance of due process of law.

52. In Louis De Raedt vs. Union of India 1991 (3) SCC 554 the two

foreign nationals engaged in missionary work had come to India in

1937 and 1948 respectively with proper documents like passport and

visa etc. and were continuously living here but by the order dated 8th

July, 1987 their prayer for further extension of the period of stay was

rejected and they were asked to leave the country by 31st July, 1987.

They then challenged the order by filing a writ petition. This Court

held that the power of the Government of India to expel foreigners is

absolute and unlimited and there is no provision in the Constitution

fettering its discretion and the executive government has unrestricted

right to expel a foreigner. So far as right to be heard is concerned,

there cannot be any hard and fast rule about the manner in which a

person concerned has to be given an opportunity to place his case.

53. In State of Arunachal Pradesh v. Khudi Ram Chakma 1994

(Supp.) SCC 615, following Louis De Raedt (supra), it was held that

the fundamental right of a foreigner is confined to Article 21 for life

and liberty and does not include the right to reside and stay in this

country, as mentioned in Article 19(1)(e), which is applicable only to

the citizens of the country. After referring to some well-known and

authoritative books on International Law it was observed that the

persons who reside in the territories of countries of which they are not

nationals, possess a special status under International Law. States

reserve the right to expel them from their territory and to refuse to

grant them certain rights which are enjoyed by their own nationals

like right to vote, hold public office or to engage in political activities.

Aliens may be debarred from joining the civil services or certain

profession or from owning some properties and the State may place

them under restrictions in the interest of national security or public

order. Nevertheless, once lawfully admitted to a territory, they are

entitled to certain immediate rights necessary to the enjoyment of

ordinary private life. Thus, 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.

54. The learned Additional Solicitor General has also submitted

that the vires of a 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. In support of this proposition

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he has placed reliance on In re The Special Courts Bill, 1978 AIR

1979 SC 478 and A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531. In

the former case, it was held that once a classification is upheld by the

application of the dual test, subjection of harsher treatment or

disadvantageous procedure loses its relevance, the reason being that

for the purposes of Article 14 unequals cannot complain of unequal

treatment. In our opinion, the proposition urged by the learned

Additional Solicitor General 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 application of

IMDT Act to the State of Assam violates Article 14 and is

consequently liable to be struck down.

55. Shri K.K. Venugopal has submitted that Section 8 of the IMDT

Act is similar to Section 9 of the Citizenship Act and, therefore, the

same interpretation should be placed upon Section 8. In our opinion

it is not possible to accept such a contention. 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. We are concerned here with identification and

deportation of such 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 of

citizenship of another country does not at all arise for consideration

here.

56. The learned Additional Solicitor General has submitted that the

present writ petition has been filed by way of public interest litigation

and seeks to achieve a political purpose. It is urged that the petitioner

Shri Sarbananda Sonowal was earlier an MLA of Assam Gana

Parishad party and is now a Member of Parliament and what his party

could not achieve politically, he wants to achieve by means of this

public interest litigation. It is urged that as held in S.P. Gupta v.

Union of India 1981 (Supp.) SCC 87 and some other cases that a

public interest litigation cannot be entertained where its object is to

attain a political purpose, the present petition is liable to be dismissed.

Shri K.K. Venugopal, learned senior counsel for the State of Assam,

has in addition submitted that no fundamental right of the petitioner

has been violated and, therefore, the present petition under Article 32

of the Constitution is not maintainable. We are unable to accept the

submission made. It is the foremost duty of the Central Government

to protect its borders and prevent trespass by foreign nationals.

Article 51-A(d) of the Constitution says that it shall be the duty of

every citizen of India to defend the country and render national

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service when called upon to do so. If an 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. There are any number

of instances where such writ petitions have been entertained by this

Court at the instance of citizens who were not themselves personally

aggrieved in the sense that there was no direct invasion of their own

fundamental right. In Dr. D.C. Wadhwa v. State of Bihar AIR 1987

SC 579, the petitioner had filed writ petition under Article 32 of the

Constitution challenging the action of the Governor of Bihar in

promulgating ordinances from time to time under Article 213 of

Constitution of India without getting them replaced by Acts of the

Legislature. The Constitution Bench held that the petitioner has

sufficient interest to maintain a petition under Article 32 even as a

member of the public because it is the right of every citizen to insist

that he should be governed by laws made in accordance with the

Constitution and not law made by the executive in violation of the

constitutional provisions. It was also held that if any particular

ordinance was being challenged by the petitioner he may not have the

locus standi to challenge it simply as a member of the public unless

some legal right or interest of his is violated or threatened by such

ordinance, but here what petitioner as a member of the public was

complaining of is a practice which is being followed by the State of

Bihar of repromulgting the ordinances from time to time without their

provisions being enacted into Acts of the Legislature. The Court ruled

that the petition had been filed for vindication of public interest and he

must therefore be held to be entitled to maintain his writ petitions. In

R.K. Garg v. Union of India AIR 1981 SC 2138 the constitutional

validity of Special Bearer Bonds (Immunities and Exemptions)

Ordinance and the Act of 1981 was challenged by Shri R.K. Garg, a

senior advocate of Supreme Court, by filing a writ petition under

Article 32 of Constitution, which was entertained and the validity of

the Act was examined in great detail. Recently this Court entertained

a petition under Article 32 of the Constitution at the instance of Prof.

Yashpal, former Chairman of University Grants Commission by way

of Public Interest Litigation and struck down the Act made by

Chhattisgarh Legislature which enabled 112 Private Universities to be

established, having no infrastructure whatsoever within a short span of

two years. (See JT 2005 (3) SC 165)

57. To sum up our conclusions, the provisions of the Illegal

Migrants (Determination by Tribunals) Act, 1983 are ultra vires

the Constitution of India and are accordingly struck down. The

Illegal Migrants (Determination by Tribunals) Rules, 1984 are

also ultra vires and are struck down. As a result, 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 of Assam. 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. In view of the finding that the

competent authority and the Screening Committee had no authority or

jurisdiction to reject any proceedings initiated against any alleged

illegal migrant, the orders of rejection passed by such authorities are

declared to be void and non est in the eye of law. 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

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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 to have

abated.

58. 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 of India 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;

(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.

59. All the Interlocutory Applications are disposed of in terms of

the above order.