TMI Blog2005 (7) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... ia 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 (Determinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssam 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 consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts 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 Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 discussio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avit. List the writ petitions after four weeks before a three Judge Bench for further proceedings. 8. The Union of India filed a counter affidavit sworn by Shri Jatinder Bir Singh, Director, Ministry of Home Affairs, in reply to the additional affidavit of the State of Assam. It is averred therein that the matter of constitutional validity of the IMDT Act does not depend on political issues, but depends on facts and legal grounds. The relevant part of the opening part of the affidavit which has some relevance is being reproduced below :- In this context, it is submitted that detection of illegal migrants, who belong to the same ethnic stock as Indians is not an easy task. However, large-scale illegal migrants from Bangladesh have not only threatened the demographic structure of the area but have 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 though it is a dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 less comparable. Besides above, the details of the fencing work and construction of roads done at the border have also been given. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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 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 Bangla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deleti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment) 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 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enship (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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 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 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard 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. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 (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 nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 comment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggression : 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 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 its legislative department, considers the presence of foreigners of a different race in the country, who will not assimilate wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 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 illegal migration not only affects the people of Assam but has more dangerous dimensions of greatly undermining our national secur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsiderable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept 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 in paragraphs 400, 401 and 413). The author has said that the 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itical 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 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enship 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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