# ASSAM SANMILITAMAHASANGHA& ORS v. UNION OF INDIA & ORS

- **Citation:** [2014] 14 S.C.R. 744
- **Court:** Supreme Court of India
- **Decided:** 2014-12-17
- **Bench:** RANJAN GOGOi, ROHINTON FALi NARIMAN
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/assam-sanmilitamahasangha-ors-v-union-of-india-ors-29673
- **Pages:** 75

## Headnote

Citizenship Act, 1955: s. 6A (as inserted by Amendment
Act in 1985 to give effect to the Assam Accord dated
C
15.8.1985) - Constitutional validity of- The questions as
regards constitutional validity of s:6A are substantial
questions as to interpretation of the Constitution - Hence,
need to be decided by a minimum of 5 Judges - Therefore,
. the questions referred to larger Bench-' However, since s. 6A
D is valid until the Constitution Bench decides the matter, in
view of the facts of the case, it is necessary to issue
appropriate directions to ensure that effective steps are taken
to prevent illegal access to the country; to detect foreigners
belonging to the stream of 1.1.1966 to 24. 7. 1971 so as to
E give effect tothe provisions of ss.6(3) and 6(4) and to detect
and deport all illegal migrants who have come to the State of
Assam after 25.3.1971- Constitution of India-Arts. 5 and 6
- Foreigners Act, 1946- Immigrants (Expulsion from Assam)
Act, 1950 - Assam Accord dated 15.8.1985 - Foreigners
F
Tribunal Order of 1964.
Delay/Laches - Petition u!Art.32 of the Constitution -
Whether can be dismissed on the ground of delay/laches -
Held: When it comes to violations of the fundamental right to
life and personal liberty, delay or /aches by itself would not
G be sufficient to shut the doors of the court on any petitionerThe present petition is representing the entire population of
State of Assam, alleging invasion on sovereignty and integrity
of India by the illegal migrants of a neighbouring country -
These influx giving rise to periodic clashes resulting in ·
H
744
ASSAM SANMILITAMAHASANGHA& ORS. v. UNION OF
745
INDIA&ORS.
violation of Articles 21 and 29 of the Constitution - It is also A
alleged that Arts. 14 of the Constitution continues to be
violated as s.6A(3) to (5) of the Citizenship Act (Constitutional
validity whereof is challenged in the petition) are not time
barred, but are ongoing -
Such a petition cannot .be
dismissed at threshold on the ground of /aches- Constitution
B
oflndia-Arts. 32, 14, 21, 29and355-CitizenshipAct, 1955
-s.6A.
Referring certain questions to a Bench of five
Judges, issuing directions to the Union of India and State
of Assam, and adjourning the matter, the Court
C
HELD: 1.1 With the developments in law, Article 21
has been given its new dimension, and pursuant to the
new dimension a huge number of rights have come
under the umbrella of Article 21. It has been conclusively 0
held that all fundamental rights cannot be waived. In
view of these important developments in the law, the time
has come for this Court to say that at least when it comes
to violations of the fundamental right to life and personal
liberty, delay or lac hes by itself without more, would not E
be sufficient to shut the doors of the court on any
petitioner. [Para 32][182-F-H]
Maneka Gandhi v. Union of India 1978 (2)
SCR 621 : (1978) 1 SCC 248 ; Tilokchand
Motichand v. H.B. Munshi (1969) 1 SCC 110 ;
F
Kap ii a Hingorani v. State of Bihar 2003 (1) Suppl.
SCR 175: (2003) 6 SCC 1 ; Olga Tellis & Ors. v.
Bombay Municipal Corporation 1985 (2) Suppl.
SCR 51 : (1985) 3 SCC 545- referred to.
1.2 In the present case, the petitioners in the various G
writ petitions represent an entire people - the tribal and
non-tribal population of the State of Assam. In their
petition, they have raised a plea that the sovereignty and
integrity of India is itself at stake as a massive influx of
H
746
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A illegal migrants from a neighbouring country h~s affected
this core Constitutional value. Such an influx is "external
aggression" within the meaning of Article 355 of the
Constitution of India. As a result of this huge influx,
periodic clashes have been taking place betWeen the
B citizens of India and these migrants, resulting into loss
of life and property, sounding in a violation of Articles 21
and 29 of the Constitution of the Assamese people as a
whole. Not only is there an assault on the life of the
citizenry of th

## Text

_Characters 0–39,991 of 135,535. This is a partial read: ask again with offset=39991 for what follows._

[2014] 14 S.C.R. 744
A
ASSAM SANMILITAMAHASANGHA& ORS.
B
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 562 of 2012)
DECEMBER 17, 2014
[RANJAN GOGOi AND ROHINTON FALi NARIMAN, JJ.]
Citizenship Act, 1955: s. 6A (as inserted by Amendment
Act in 1985 to give effect to the Assam Accord dated
C
15.8.1985) - Constitutional validity of- The questions as
regards constitutional validity of s:6A are substantial
questions as to interpretation of the Constitution - Hence,
need to be decided by a minimum of 5 Judges - Therefore,
. the questions referred to larger Bench-' However, since s. 6A
D is valid until the Constitution Bench decides the matter, in
view of the facts of the case, it is necessary to issue
appropriate directions to ensure that effective steps are taken
to prevent illegal access to the country; to detect foreigners
belonging to the stream of 1.1.1966 to 24. 7. 1971 so as to
E give effect tothe provisions of ss.6(3) and 6(4) and to detect
and deport all illegal migrants who have come to the State of
Assam after 25.3.1971- Constitution of India-Arts. 5 and 6
- Foreigners Act, 1946- Immigrants (Expulsion from Assam)
Act, 1950 - Assam Accord dated 15.8.1985 - Foreigners
F
Tribunal Order of 1964.
Delay/Laches - Petition u!Art.32 of the Constitution -
Whether can be dismissed on the ground of delay/laches -
Held: When it comes to violations of the fundamental right to
life and personal liberty, delay or /aches by itself would not
G be sufficient to shut the doors of the court on any petitionerThe present petition is representing the entire population of
State of Assam, alleging invasion on sovereignty and integrity
of India by the illegal migrants of a neighbouring country -
These influx giving rise to periodic clashes resulting in ·
H
744
ASSAM SANMILITAMAHASANGHA& ORS. v. UNION OF
745
INDIA&ORS.
violation of Articles 21 and 29 of the Constitution - It is also A
alleged that Arts. 14 of the Constitution continues to be
violated as s.6A(3) to (5) of the Citizenship Act (Constitutional
validity whereof is challenged in the petition) are not time
barred, but are ongoing -
Such a petition cannot .be
dismissed at threshold on the ground of /aches- Constitution
B
oflndia-Arts. 32, 14, 21, 29and355-CitizenshipAct, 1955
-s.6A.
Referring certain questions to a Bench of five
Judges, issuing directions to the Union of India and State
of Assam, and adjourning the matter, the Court
C
HELD: 1.1 With the developments in law, Article 21
has been given its new dimension, and pursuant to the
new dimension a huge number of rights have come
under the umbrella of Article 21. It has been conclusively 0
held that all fundamental rights cannot be waived. In
view of these important developments in the law, the time
has come for this Court to say that at least when it comes
to violations of the fundamental right to life and personal
liberty, delay or lac hes by itself without more, would not E
be sufficient to shut the doors of the court on any
petitioner. [Para 32][182-F-H]
Maneka Gandhi v. Union of India 1978 (2)
SCR 621 : (1978) 1 SCC 248 ; Tilokchand
Motichand v. H.B. Munshi (1969) 1 SCC 110 ;
F
Kap ii a Hingorani v. State of Bihar 2003 (1) Suppl.
SCR 175: (2003) 6 SCC 1 ; Olga Tellis & Ors. v.
Bombay Municipal Corporation 1985 (2) Suppl.
SCR 51 : (1985) 3 SCC 545- referred to.
1.2 In the present case, the petitioners in the various G
writ petitions represent an entire people - the tribal and
non-tribal population of the State of Assam. In their
petition, they have raised a plea that the sovereignty and
integrity of India is itself at stake as a massive influx of
H
746
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A illegal migrants from a neighbouring country h~s affected
this core Constitutional value. Such an influx is "external
aggression" within the meaning of Article 355 of the
Constitution of India. As a result of this huge influx,
periodic clashes have been taking place betWeen the
B citizens of India and these migrants, resulting into loss
of life and property, sounding in a violation of Articles 21
and 29 of the Constitution of the Assamese people as a
whole. Not only is there an assault on the life of the
citizenry of the State of Assam but there is an assault on
C their way of life as well. The culture of an entire people is
being eroded in such a way that they will ultimately be
swamped by persons who have no right to continue to
live in this country. It has also been pleaded that Article·
14 also continues to be violated as Section GA (3) to (5)
o of Citizenship Act are not time bound but are ongoing.
In view of these facts, petitions of this kind cannot be
dismissed atthe threshold on the ground of delay/laches.
[Paras 30, 31][781-D-H; 782-A-C]
Rabindranath Bose & Ors. v. Union of India & Ors.
E
1970 (2) SCR 697: (1970) 1 sec 84 ;
Ramchandra Shankar Deodhar v. State of
Maharashtra 1974 (2) SCR 216: (1974) 1 SCC
317; Express Publication (Madurai) Ltd. v. Union
of India 2004 (2) SCR 1098 : (2004) 11 SCC 526;
F
TK. Dingal v. State of West Bengal 2008 (15)
SCR 194 : (2009) 1 SCC 768 ; Bangalore City
Co-operative Housing Society v. State of
Karnataka 2012 (3) SCR 295: (2012) 3 SCC 727
- referred to.
G
H
2. The following questions need to be answered by
an appropriate Bench, as most of them are substantial
questions as to the interpretation of the Constitution,
which have to be decided by a minimum of 5 ·Judges
under Article 145(3). The questions are as follows:
ASSAM SANMILITAMAHASANGHA& ORS. v. UNION OF
747
INDIA&ORS.
{i) Whether Articles 10 and 11 of the Constitution of A
India permit the enactment of Section GA of the
Citizenship Act in as much as Section GA, in prescribing
a cut-off date different from the cut-off date prescribed
in Article G, can do so without a "variation" of Article G
itself; regard, in particular, being had to the phraseology B
of Article 4 {2) read with Article 3G8 {1) of the Constitution?
{ii) Whether Section 6A violates Articles 325 and 326
of the Constitution in that it has diluted the political rights
of the citizens of the State of Assam;
(iii) What is the scope of the fundamental right
contained in Article 29(1)? Is the fundamental right
absolute in its terms? In particular, what is the meaning
c
of the expression "culture" and the expression
"conserve"? Whether Section SA violates Article 29(1 )? 0
{iv) Whether Section GA violates Article 355? What
is the true interpretation of Article 355 of the
Constitution? Would an influx of illegal migrants into a
State of India constitute "external aggression" and/or
"internal disturbance"? Does the expression "State" E
occurring in this Article refer only to a territorial region
or does it also include the people living in the State,
which would include their culture and identity?
(v) Whether Section 6A violates Article 14 in that, it
singles out Assam from other border States (which F
comprise a distinct class) and discriminates against it.
Also whether there is no rational basis for having a
separate cut-off date for regularizing illegal migrants who
enter Assam as opposed to the rest of the country; and
(vi) Whether Section GA violates Article 21 in that
the lives and personal liberty of the citizens of Assam
have been affected adversely by the massive influx of
illegal migrants from Bangladesh.
G
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SUPREME COURT REPORTS
[2014] 14 S.C.R.
A
(vii) Whether delay is a factor that can be taken into
account in moulding relief under a petition filed under
Article 32 of the Constitution?
(viii) Whether, after a large number of migrants from
East Pakistan. have enjoyed rights as Citizens of India
B for over 40 years, any relief can be given in the petitions
filed in the present cases?
(ix) Whether section GA violates the basic premise
of the Constitution and the Citizenship Act in that it
c permits Citizens who have allegedly not lost their
Citizenship of East Pakistan to become deemed Citizens
of India, thereby conferring dual Citizenship to such
persons?
(x) Whether section GA violates the fundamental
D basis of section 5(1) proviso and section 5(2) of the
Citizenship Act (as it stood in 1985) in that it permits a
class of migrants to become deemed Citizens of India
without any reciprocity from Bangladesh and without
taking the oath of allegiance to the Indian Constitution?
E
(xi) Whether the Immigrants (Expulsion from Assam)
Act, 1950 being a special enactment qua immigrants into
Assam, alone can apply to migrants from East Pakistan/
Bangladesh to the exclusion of th!l general Foreigners
Act and the Foreigners (Tribunals) Order, 19G4 made
F thereunder?
.(xii) Whether Section GA violates the Rule of Law in
that it gives way to political expediency and not to
Government according to law?
G
(xiii) Whether Section GA violates fundamental
H
· rights in that no mechanism is provided to determine
which persons are ordinarily resident in Assam since the
dates of their entry into Assam, thus granting deemed
ASSAM SANMILITA MAHASANGHA & ORS. v. UNION OF
749
INDIA&ORS.
citizenship to such persons arbitrarily? [Para 33] A
[783-B-H; 783-A-H; 785-A-C]
3.1 The statement of objects and reasons for the
enactment of Section 6A states, that, the said Section
was inserted into the statute book in 1985 to implement
one part of the Assam Accord dated 15'" August, 1985. B
Whereas a part of paragraph 5 of the Accord has been
fully implemented by enacting Section 6A, precious little
has been done by the Union of India and the State of
Assam to implement the other parts of the Accord. It is
evident from the White Paper on the Foreigners Issue C
. dated 20'" October, 2012, prepared by the State of Assam
that even -as on October 20, 2012, very little has been
done to implement paragraphs 5(part), 6, 9 and 10 of the
Assam Accord. The number of tribunals set up is
abysmally low resulting in an abysmally low number of D
decisions by these tribunals. Whereas almost 1,50,000 ·
persons were deported between 1961 to 1965 under The
Immigrants (Expulsion of Assam) Act, 1950, the number
of deportations from 1985 till date is stated to be a mere
2,000 odd. Even these deportees .are mostly, if not all, E
"push backs" which results in the same deportees
coming back, post deportation from a border which is
completely porous. [Paras 35, 37, 38, 39][785-E-F;
787-G-H; 788-A; 795-G-H; 807-G-H; 808-A-B] .
3.2 In the light of the above position, it is necessary
to issue appropriate directions to the Union of India and
the.State of Assam to ensure that effective steps are taken
to prevent illegal access to the country from Bangladesh;
F
to detect foreigners belonging to the stream of 1.1.1966 G
to 24.3.1971 so as to give effect to the provisions of
Section 6(3) & (4) of the Citizenship Act and to detect
and deport all illegal migrants who have come to the State
of Assam afte~ 25.3.1971. [Para 42][808-E-G]
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SUPREME COURT REPORTS
[2014] 14 S.C.R.
A
3.3 The Union and the State are broadly in
agreement in respect of the steps that are required to be
taken, as well as the action taken till date and further the
measures that are required to be taken in the future. On
an overall consideration of the immediate dimensions
B of the issues and the pc;>tential that the same have for
the future, direct.ions under Article 142 of the
Constitution, in respect of Border fencing, Border Roads
and provision for flood lights; making Foreigners
Tribunals functional; and regarding existing Mechanism.
C of Deportation of Declared Illegal Migrants in view the
requirements of international protocol, Union of India
to enter into necessary discussions with the Government
of Bangladesh to streamline the procedure of
deportation. [Para 42, 46][815-G~H; 816-E-F; 817-B-C]
D
4. Insofar as Writ Petition (C) No. 274/2009 is
concerned, on and from the date of this judgment, the
time schedule as given in this judgment should govern
the work of updating of the NRC in Assam so that the
entire updated NRC is published by the end of January,
E 2016. [Para 48][817-DcF]
CASE LAW REFERENCE
1978 (2) SCR 621
referred to.
Para 32
2003 (1) Suppl. SCR 175 referred to.
Para 32
F
1985 (2) Suppl. SCR 51
referred to.
Para 32
(1969) 1 sec 110
referred to.
Para 22
.
1970 (2) SCR 697
referred to.
Para 25
G 1974 (2) SCR 216
referred to.
Para 26
2004 (2) SCR 1098
referred to.
Para 27
2008 (15) SCR 194
referred to. ·
Para 28
2012 (3) SCR 295
referred to.
Para 29
H
ASSAM SANMILITAMAHASANGHA& ORS. v. UNION OF
751
INDIA&ORS.
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
A
562 of 2012.
(Under Article 32 of the Constitution of India)
With
Writ Petition (Civil) Nos. 876/2014 and 274/2009.
B
Neeraj Kishan Kaul, ASG, Kamal Nayan Chaudhari,
Jaideep Gupta, Salman Khurshid, Soli Sorabjee, Rakesh
Khanna, Ashok Panda, Sr. Advs., Krishna Sarma, AAG, Manish
Goswami, Rameshwar Prasad Goyal, Shiv Mangal Sharma,
C
Sanyat Lodha, Raghvendra Bajaj, Vivek Mohanty, Saurabh
Rajpal, Ms. Anjali Chauhan, Shrey Kapoor, Ms. Sushma Suri,
Avijit Roy, Navnit Kumar (for Mis. Corporate Law Group), B.
Krishna Prasad, F_uzailAhmadAyyubi, Gulfeshan, Ms.Anjana
Mathur Gupta, Abdul Qadir, Anas Tanvir Siddiqui, Aziz Ur0
Rehman, Mustafa Khaddim, lmtiaz, Syed Ali Ahmad, Syed
Tanweer Ahmad, S.S. Bandyopadhyay, Mohan Pandey, Mohit
D. Ram, Shadan Farasat, ShakilAhmed Syed, Uzmi Jamil,
Tabrez, Shibashi~h Misra, Milan Laskar, Mohd. Parvez Dabas, .
Syed Mehdi Imam, Prateek Jalan, Ms. Malvika Trivedi, Rahul
Kriplani, Ankit Yadav, T. Mahipal, G. S. Chatterjee, Abhinav
E
Mukherjee, Gaurav Sharma, Ms. Sukhbeer Kaur Bajwa,
Shreekant N. Terdal, Advs. for the Appearing Parties.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. A Prophet is without honour in his own country.
Substitute 'citizen' for 'prophet' and you will get the gist of the
various writ petitions filed under Article 32 of the Constitution
of India assailing Section 6Aofthe Citizenship Act.
F
G
2. It all began when the Burmese ceded Assam to the
British on 24'" February, 1826 as per the treaty of Yandabo,
thus bringing to an end Ah om rule in Assam which had begun
sometime in the 131"·century. The British annexed Assam
and placed it as an administrative unit of the Bengal Province.
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SUPREME COURT REPORTS
[2014] 14 S.C.R.
A
As early as 1931, C.S. Mullan, the Census Superintendent in
B
c
his census report stated:
"Probably the most important event in the province
during the last 25 years- an event, moreover, which
seems likely to alter permanently the whole feature of
Assam and to destroy the whole structure of Assamese
culture and civilization has been the invasion of a vast
horde of /and-hungry immigrants mostly Muslims, from
the districts of E as! Bengal . ... wheresoever the carcass,
there the vultures wi!I gathered together " (Politics of
Migration by Dr. Manju Singh, Anita Publications,
Jaipur, 1990, Page 59)
3. In 1935, when the Government of India Act was
promulgated ,Assam was, under Section 46(1 ), stated to be a
0
Governor's province. It was in this scenario that the Foreigners
Act of 1946 was enacted under which the burden of proving
whether a person is or is not a foreigner lies upon such person.
At the commencement of the Constitution of India, Article 5
stated that every person who has his domicile in the territory
E of India and who was either born in the territory of India; or
either of whose parents were born in the territory of India; or
who has been ordinarily resident in the territory of India for not
less than 5 years immediately preceding such commencement
shall be a citizen of India. As an exception, Article 6, which is
F
important forthe determination of some of the questions arising
in these writ petitions, states as follows:
"Rights of citizenship of certain persons who have
migrated to India from Pakistan. -Notwithstanding
anything in Article 5, a person who has migrated to the
G
territory of India from the territory now included in Pakistan
shall be deemed to be a citizen of India at the
commencement of thi.s Constitution if
(a) he or either of his parents or any of his grand-parents
was born in India as defined in the Government of India
H
Act, 1935 (as originally enacted); and
ASSAM SANMILITAMAHASANGHA& ORS. v. UNION OF
753
INDIA & ORS. [R. F. NARI MAN, J.]
(b)(i) in the case where such person has so migrated
A
before the nineteenth day of July, 1948, he has been
ordinarily resident in the territory of India since the date
of his migration, or
(ii) in the case where such person has so migrated on or
after the nineteenth day of July, 1948 , he has been
8
registered as a citizen of India by an officer appointed in
that behalf by the Government of the Dominion of India
on an application made by him therefor to such officer
before the commencement of this Constitution in the form
and manner prescribed by that Government: Provided
C
that no person shall be so registered unless he has been
resident in the territory of India or at least six months
immediately preceding the date of his application."
4. 19'" July, 1948, therefore, became the baseline for 0
such persons as were referred to in Article 6 for being citizens
of India.
5. At this stage, the Immigrants (Expulsion from Assam)
Act, 1950 was enacted to protect the indigenous inhabitants
of Assam. The statement of objects and reasons of this Act
E
says
"during the last few months a serious situation had arisen
from the immigration of a very large number of East Bengal
residents into Assam. Such large migration is disturbing-the
economy of the province, besides giving rise to a serious law
F
and order problem. The bill seeks to confer necessary powers
on the Central Government to deal with the situation."
6. In pursuance of this object, Sections 2 and 4 of this
Act which also have a bearing on some of ttie issues raised in . G
these petitions state as follows:
"2. Power to order expulsion of certain immigrants.-
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 H
754
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SUPREME COURT REPORTS
[2014] 14 S.C.R.
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 interests of the general public
of India or of any section thereof or of any Sclieduled
Tribe in Assam, the Central Government may by order-
( a) direct such person or class of persons to remove
himself or themselves from india or Assam within such
time and by such route as may be specified in the order;· .
and
(b) give such further directions in regard to his or their
removal from India or Assam as it may consider
necessary or expedient;
Provided that nothing in this section shall 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 or has left his place
of residence in such area and who has been
subsequently residing in Assam.
4. Power to give effect orders, etc.-
Any authority empowered by or in pursuance of the
provisions of this Act to exercise any power may, in
addition to any other action expressly provided for in this
Act, take or cause to be taken .such steps, and use or
cause to be used such force, as may in its opinion be
reasonably necessary for the effective exercise of such
power."
7. It was during the census of 1951 that a National
Register of Citizens was prepared under a directive of the
G Ministry of Home Affairs containing information village-wise of
each and every person enumerated therein. Details such as
the number and names of persons, the houses or holdings
belonging to them, father's name or husband's name,
nationality, age, the means of livelihood were all indicated
1-j
therein.
..
ASSAM SANMILITAMAHASANGHA& ORS. v. UNION OF 755
INDIA& ORS. [R. F. NARIMAN, J.]
.8. Between 1948 and 1971, there were large scale A
migrations from East Pakistan to Assam. As is well known,
West Pakistan commenced hostilities against East Pakistan
on 25'" March, 1971 culminating in the war which
dismembered the two parts of Pakistan and in which a new ·
nation, Bangladesh, was born. It is interesting to note that B
immediately after the successful culmination of the war in
Bangladesh, on 19'" March, 1972, a treaty for friendship, cooperation and peace was signed between India and
Bangladesh. Article 8 of the said treaty is in the following terms:
"In accordance with the ties of friendship existing between
C
the two countries each of the High Contracting Parties
solemnly declares that it shall not enter into or participate
in any military alliance directed against the other party.
Each of the High Contracting Parties shall refrain from
any aggression against the other party and shall not allow D
the use of its territory for committing any act that may
cause military damage to or constitute a threat to the
security of the other High Contracting Party"
9. Given the continuing influx of illegal migrants from
E
Bangladesh into Assam, the All Assam Students Union first
submitted a memorandum to the then Prime Minister of India
(in 1980) inviting her urgent attention to this issue. As a result
of such representations, Parliament enacted the Illegal
Migrants (Determination by Tribunal) Act, 1983. ThisActwas F
made applicable only to Assam and was expected to be a
measure which speeded up the determination of illegal
migrants in the State of Assam with a view to their deportation.
10. Not being satisfied with this parliamentary measure,
and in view of large scale agitations in the State of Assam, an
G
accord was signed known as the "Assam Accord" on 15'"
August, 1985 between the AASU, AAGSP and the Central and
the State Governments. This Accord is worth quoting in
extenso:
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- SUPREME COURT REPORTS
"ASSAM ACCORD
15th August, 1985
[2014] 14 S.C.R.
(Accord between AASU, AAGSP, Central and State
Government on the Foreigner Problem Issue)
-MEMORANDUM OF SETTLEMENT
1. Government have all along been most anxious to find.
a satisfactory solution to the problem of Foreigners in
Assam. The All Assam Students' 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 affects
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 Ministers
yplevels 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 provision, international
agreements, national commitments and humanitarian
considerations, it has been dedded to proceed as
follows:-
Foreigners Issue:
5.
ASSAM SANMILITA MAHASANGHA & ORS. v. UNION OF . 757
!NOIA & ORS. [R. F. NARI MAN, J.]
1. For purpose of detection and deletion of foreigners,
A
1-1-1966 shall be the base date and year.
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.
B
3. Foreigners who came to Assam after 1-1-1966
(inclusive) and upto 24th March, 1971 shall be detected
in accordance with the provisions of the Foreigners Act,
1946 and the Foreigners (Tribunals) Order, 1939.
c
4. Names of foreigners so detected will be deleted from
the electoral rolls in force. Such persons will be required
to register themselves before the Registration Officers
of the respective districts in accordance with the
provisions of the Registration of Foreigners Act, 1939 D
and the Registration of Foreigners Rules, 1939.
5. For this purpose, Government of India will undertake
suitable strengthening of the governmental machinery.
6. On the expiry of the period of ten year following the
E
date of detection, the names of all such persons which
have been deleted from the electoral rolls shall be
restored.
7. All persons who were expelled earlier, but have since
re-entered illegally into Assam, shall be expelled.
F
8. Foreignerswho came to Assam on or after March 25.
1971 shall continue to be detected. deleted and expelled
in accordance with the law. Immediate and practical
steps shall be taken to expel such foreigners.
9. The Government will give due consideration to certain
difficulties express by the AASU/AAGSP regarding the
implementation of the Illegal Migrants (Determination by
Tribunals) Act, 1983.
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Safeguards and Economic Develop.ment:
6. Constitutional, legislative and administrative
safeguards. as may be appropriate. shall be provided
to protect. preserve and promote the cultural. social,
linguistic identity and heritage of the Assamese people.
7. The Government takes this opportunity to renew their
commitment for the speedy all round economic
development of Assam, so as to improve the standard
of living of the people. Special emphasis will be placed
on the educati.on and Science & Technology through
establishment of national institutions.
Other Issues:
8.
D
1. The Government will arrange for the issue of
citizenship certificate in future only by the authorities of
the Central Government.
2. Specific complaints that may be made bytheAASU/
AAGSP about irregular issuance of Indian Citizenship
E
Certificates (ICC) will be looked into.
9.
1. The international border shall be made secure against
future infiltration by erection of physical barriers like walls
F
barbed wire fencing and other obstacles at appropriate
places. Patrolling by security forces on land and riverine
routes all along the international border shall be
adequately intensified. In order to further strengthen the
security arrangements, to prevent ijbeffectively future
G
infiltration, an adequate number of check posts shall be
setup.
2. Besides the arrangements mentioned above and
keeping in view security considerations, a road all along
the international border shall be constructed so as to
H
facilitate patrolling by security forces. Land between
ASSAM SANMILITA MAHASANGHA & ORS. v. UNION OF
759
INDIA & ORS. [R. F. NARI MAN, J.]
border and the road would be kept free of human A
habitation, wherever possible. Riverine patrolling along
the international border would be intensified. All effective
measures would be adopted to prevent infiltrators
crossing or attempting to cross the international bor~er.
10. It will be ensured that relevant laws for prevention of B
encroachment of government lands and lands in tribal
belts and blocks are strictly enforced and unauthorized
encroachers evicted as laid down under such laws.
11. It will be ensured thatthe law restricting acquisition c
of immovable property by foreigners in Assam is strictly
enforced.
12. It will be ensured that Birth and Death Registers are
duly maintained.
Restoration of Normalcy:
13. The All Assam Students Unions (AASU) and the All
Assam Gana Sang ram Paris had (AAGSP) call off the
agitation, assure full co-operation and dedicate
themselves towards the development of the Country.
14. The Central and the State Government have agreed
to:
D
E
1. Review with sympathy and withdraw cases of
disciplinary action taken against employees in the context
of the agitation and to ensure thatthere is no victimization;
F ·
2. Frame a scheme for ex-gratia payment to next of kin
of those who were killed in the course in the agitation.
3. Give sympathetic cons·ideration to proposal for
relaxation of upper age limit for employment in public G
service in Assam, having regard to exceptional situation
that prevailed in holding academic and competitive
examinations etc. in the context of agitation in Assam:
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A
4. Undertake review of detention cases, if any, as well
as cases against persons charged with criminal offences
in connection with \he agitation; except those charged
with commission of heinous offences.
B
5. Consider withdrawal of the prohibitory orders/
notifications in force, if any:
I
15. The Ministry of Home Affairs will be the nodal Ministry
for the implementation of the a_bove.
Sd/-
Sd/-
c
(P.K. Mahanta)
(R.D. Pradhan)
President
Home Secretary
All Assam Students' Union
Government of India
D
Sd/-
Sd/-
(B.K. Phukan)
(Smt. P. P. Trivedi)
•
General Secretary
Chief Secretary
'All Assam Students' Union
Government of
E
Assam
Sd/-
(Biraj Sharma)
Convenor
F
All Assam Students' Union
In the Presence of
Sd/-
G
(Rajiv Gandhi)
Prime Minister of
India
Date: 15th August, 1985
H
Place: New Delhi"
ASSAM SANMILITAMAHASANGHA& ORS. v. UNION OF
761
INDIA& ORS. [R. F. NARIMAN, J.]
11. It was in pursuance of this accord that Section 6A A
was inserted in the Citizenship Act in 1985. The Statement of
Objects and Reasons of the Act specifically states that it is
legislation required to give effect to the Assam Accord. Section
6A states as follows:
"6A. Special provisions as to citizenship of persons
8
covered by the Assam Accord.-·
(1) For the purposes of this section-
( a) "Assam" means the territories included in the State
of Assam immediately before the commencement of the C
Citizenship (Amend-men!) Act, 1985;
(b) "detected to be a foreigner" means detected to be a
foreigner in accordance with the provisions of the
Foreigners Act, 1946 (31 of 1946) and the Foreigners
(Tribunals) Order, 1964 by a Tribunal constituted under D
the said Order;
(c) "specified territory" means the territories included in
Bangladesh immediately before the commencement of
the Citizenship (Amendment) Act, 1985;
E
(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
F
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-sections (6) and (7),
G
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
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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 (thereafter 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.-ln the case of every person seeking
registration under this sub-section, the opinion of the
Tribunal constituted under the Foreigners (Tribunals)
Order, .1964 holding such person to be a foreigner, shall
be deemed to be sufficient proof of the requirement
under clause (c) of this sub-section and if any question
arises .as to whether such person complies with any other
requirement under this sue-section, the registering
authority shall,-
(i) if such opinion contains a finding with respect to such
other requirement, decide the question in conformity with
such finding;
(ii) if such opinion does not contain a finding with respect
to such other requirement, referthe question to a Tribunal
ASSAM SANMILITA MAHASANGHA & ORS. v. UNION OF
763
INDIA & ORS. [R. F. NARI MAN, J.]
constituted under the said Order having jurisdiction in
A
accordance with such rules as the Central Government
may make in this behalf under section 18 and decide
· the question in conformity with the opinion received on
such reference.
••
(4) A person registered under sub-section (3) shall have,
B
as from the date on which he has been detected to be a
foreigner and till the expiry of a period of ten years from
that date, the same rights and obligations as a citizen of
India (including the right to obtain a passport under the
Passports Act, 1967 (15 of 1967) and the obligations C
connected therewith), but shall not be entitled to have his
name included in any electoral roll for any Assembly or
Parliamentary constituency at any time before the expiry
of the said period of ten years.
D
(5) A person registered under sub-section (3) shall be
deemed to be a citizen of India for all purposes as from
the date of expiry of a period of ten years from the date
on which he has been detected to be a foreigner.
(6) Without prejudice to the provisions of section 8,-
E
(a) if any person referred to in sub-section (2) submits in
the prescribed manner and form and to the prescribed
authority within sixty days from the date of
commencement of the Citizenship (Amendment) Act,
1985, for year a declaration that he does not wish to be
F
a citizen of India, such person shall not be deemed to
have become a citizen of India under that sub-section;
(b) If any person referred to in sub-section (3) submits in
the prescribed manner and form and to the prescribed G
authority within sixty days from the date of
commencement the Citizenship (Amendment) Act, 1985,
for year or from the date on which he has been detected
to be a foreigner, whicheveris later, a declaration that he
· does not wish to be governed by the provisions of that H
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[2014] 14 S.C.R.
A
sub-section and sub-sections (4) and (5), it shall not be
necessary for such person to register himself under subsection (3).
B
c
D
E
Explanation.-\A(here a person required to file a
declaration under this sub-section does not have the
capacity to enter into a contract, such declaration may
be filed on his behalf by any person competent under the
law for the time being in force to act on his behalf.
(7) Nothing in sub-sections (2) to (6) shal~ apply in relation
to any person-
( a) who, immediately before the commencement of the
Citi~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, for year 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
notwithstanding anything contained in any other law for
the time being in force."
12. It will be seen that as part of the Assam Accord, a
huge number of illegal migrants were made deemed citizens
F
of India. It is interesting to note that Parliament has not enacted
any law pertaining to refugees from other countries. Refugee
status can be granted and has been granted in India through
executive orders passed.by the Central Government. In any
case, Section 6A did not merely rest content with granting
G refugee status to those who were illegal migrants from East
Pakistan but went on to grant them the benefit of citizenship
of India so that all persons who had migrated before 1966 and
all persons who migrated before 25'" March, 1971 respectively
were to become citizens of India either immediately or as is
H mentioned by the Act after a period of 10 years once there
ASSAM SANMILITA MAHASANGHA & ORS. v. UNION OF
765
INDIA & ORS. [R. F. NARI MAN, J.]
has been a determination that they have in fact settled in India A
between 1966 and 1971.
13. On 81h of November, 1998, Lieutenant General S.K.
Sinha, the then Governor of Assam, submitted an extensive
report to the then President of India on the grave threat posed
by the influx of people from Bangladesh to Assam. He said:
B
"The dangerous consequences of large scale illegal
migration from Bangladesh, both for the people of Assam
and more for the Nation as a whole, need to be
empathetically stressed. No misconceived and mistaken c
notions of secularism should be allowed to come in the
way of doing so.
As a result of population movement from Bangladesh,
the spectre looms large of the indigenous people of
Assam being reduced to a minority in their home state.
D
Their cultural survival will be in jeopardy, their political
control will be weakened and their employment
opportunities will be undermined.
The silent and invidious demographic invasion of Assam
may result in the loss of the geo-strategically vital districts
E
of lower Assam. The influx of illegal migrants is turning
these districts into a Muslim majority region. It will then
only be a matter of time when a demand for their merger ·
with Bangladesh may be made. The rapid growth of
internationc1I Islamic fundamentalism may provide the
F
driving force for this demand. In this context, it is pertinent
that Bangladesh has long discarded secularism and has
chosen to become an Islamic State. Loss of lower Assam
will severe the entire land mass of the North East, from
the rest of India and the rich natural resources of that G.
region will be lost to the Nation."
14. It was in this backdrop that a writ petition being Writ
Petition No. 131 of 2000 was filed by Sarbananda Sonowal
assailing the Constitutional validity of "The Illegal Migrants
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(Determination by Tribunals) Act, 1983" and the rules made
thereunder.
•
15. In a judgment reported in (2005) 5 SCC 665, this
Court referred to the Assam Accord and to the huge influx of
illegal migrants into the State of Assam and came to the
B · conclusion that the 1983Act and the rules made thereunder
operated in the reverse direction i.e. instead of seeing that
illegal migrants are deported, it did the opposite by placing
· the burden of proof on the State to prove that a person happens
to be an illegal migrant. This Court went on to hold that Article
C 355 of the Constitution had been violated, in as much as the
Union had failed to protect the State of Assam against the
external aggression and internal disturbance caused by the
huge influx of illegal migrants from Bangladesh to Assam and
went on to hold the 1983 Act to be violative of Article 14 as
D well. In as much as thisAct was struck down, the Immigrants
(Expulsion from Assam) Act 1950 together with the Foreigners
Act and the Foreigners Tribunal Order of 1964 were now to be
the tools in the hands of Government to do the job of detecting
illegal migrants who were then to be deported.
E
16. On 14'h July, 2004, in response to an unstarred
question pertaining to deportation of illegal Bangladeshi
migrants, the Minister of. State, Home Affairs, submitted a ·
statement to Parliament indicating therein that the estimated
F
number of illegal Bangladeshi immigrants into India as on 31"
December, 2001 was 1.20 crores, out of which 50 lakhs were.
in Assam.
17. Given the magnitude of the problem, a Foreigners
(Tribunals for Assam) Order of 2006 was promulgated which
· G was again struck down being found to be unreasonable and
arbitrary and which instead of expeditiously discovering illegal
migrants and deporting them, again did the opposite. It was in
(2007) 1 SCC 174, in the second Sonowal writ petition, that
the Supreme Court struck down this order.
H
ASSAM SANMILITAMAHASANGHA& ORS. v. UNION OF
767
INDIA& ORS. [R. F. NARIMAN, J.]
18.