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TMI Blog2005 (7) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Mig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally 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 Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State. All other parties may also file their response, if any, within the same period, to the additional affidavit. List the writ petitions after four weeks before a three Judge Bench for further proceedings." 8. The Union of India filed a counter affidavit sworn by Shri Jatinder Bir Singh, Director, Ministry of Home Affairs, in reply to the additional affidavit of the State of Assam. It is averred therein that the matter of constitutional validity of the IMDT Act does not depend on political issues, but depends on facts and legal grounds. The relevant part of the opening part of the affidavit which has some relevance is being reproduced below :- "In this context, it is submitted that detection of illegal migrants, who belong to the same ethnic stock as Indians is not an easy task. However, large-scale illegal migrants from Bangladesh have not only threatened the demographic structure of the area but have 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreigners 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations 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 les ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sign 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 "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 economicall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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, nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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 (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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 In the case of every person seeking regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oo 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 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 partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under :- "9. Burden of proof If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person." This Act confers wide ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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. General provisions for regulation and control. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 excepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 (1) Any person may make an application to the Central Government, for decision by a Tribunal, as to whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 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 eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunals) 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 accomp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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/pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 translated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apporteur 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 comprehensively defined. Though precision may be the first virtue of a good definition, we would not like to sacrifice th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 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 necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 his life or personal liberty. The deportation proceedings are not proceedings for prosecution where a man may be convicted o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpulsion 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 be very harsh on individual aliens, it is generally accepted that such expulsion is justifiable. Having regard to Article 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. United States 142 US 652, it was adjudged that, although Congress might, if it saw fit, aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relevance, the reason being that for the purposes of Article 14 unequals cannot complain of unequal tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il. 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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