# SARBANANDA SONOWAL v. UNION OF INDIA AND ANR

- **Citation:** [2005] Supp. 1 S.C.R. 472
- **Court:** Supreme Court of India
- **Decided:** 2005
- **Bench:** R.C. Lahoti, G .P. Ma Thur, P.K. Balasubramany An
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sarbananda-sonowal-v-union-of-india-and-anr-20759
- **Pages:** 72

## Headnote

Jllegal Migrants (Determination by Tribunals) Act, 1_983:
C
Jllegal Migrants (Determination by Tribunals) Rules, 1984:
Constitution of India, 1950-Articles 14 and 355:
Act and Rules made applicable only to the State of Assam with
overriding effect over Foreigners Act-For the purpose of effective delection
D . and deportation of il!egal migrants-Jn the rest of the Country Foreigners
Act and Rules thereunder applicable-Constitutional validity pf the Act and
the Rules challenged-Held: the Act and the Rules are ultra vires the
Constitution-Procedure under Foreigners Act was far more effective in
detection and deportation of illegal migrants than the impugned Act-Rather
E it is so made as to give advantage to the illegal migrants and not for
achieving the real objective of the enactment-The provisions negate the
constitutional mandate under Article 355-Applicability of the Act to the
State of Assam alone, having no rational nexus with the policy and object
of the Act, is violative of Article 14-The Act has stripped Central Government
of its power to remove illegal migrants provided under Foreigners Act,
F Immigrants (Expulsion from Assam) Act, Passport (Entry into India) Ac/-
Tribunals constituted under the Act will cease to function and the cases
pending before it would be transferred to Tribunals constituted under
Foreigners Act-Passport (entry Into India) Act, 1920-Foreigners Act,
1946-Foreigners (Tribunals) Orders, 1964-Immigrants (Expulsion from
G Assam) Act, 1950-Passport Act, 1967-Citizenship Act, 1955-Section 6AEvidence Act, 1872-Section 106.
Words and Phrases:
'Aggression '-Meaning of in the context of Constitution of India.
H
472
SARBANANDA SONOWAL v. U.0.1.
473
Illegal Migrants (Determination by Tribunals) Act, 1983 and Illegal A
Migrants (Determination by Tribunals) Rules, 1984 were made applicable to
the State of Assam with the professed aim of making detection and deportation
of illegal migrants residing in the State of Assam. Writ Petition u/A 32 of
the Constitution of India was filed by way of Public Interest Litigation seeking
declaration of certain provisions of the Act as ultra vires the Constitution of B
India and declaration of Rules, as ultra vires the Constitution and also u/s 28
of the Act and also sought declaration that Foreigners Act, 1946 and Rules
made thereunder shall apply to the State of Assam.
Allowing the Petition, the Court
HELD: I.I. The provisions of the Illegal Migrants (Determination by C
Tribunals) Act, 1983 (IMDT Act) are ultra vires the Constitution of India.
The Illegal Migrants (Determination by Tribunals) Rules, 1984 are also ultra
vires and are struck down. (542-C; 543-A)
1.2. The procedure under the Foreigners Act and also under the D
Fortigners (Tribunals) Order, 1964 is far more effective in identification and
deportation of foreigners as compared to the procedure under the IMDT Act
and the Rules made thereunder. There being no corresponding provision like
Section 9 of the Foreigners Act which places the burden of proof upon the
person concerned who claims to be an Indian citizen, which is absolutely
essential in relation to the nature of inquiry being conducted regarding E
determination ofa 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 F
innumerable .and unsurmountable difficulties are created in the matter of
identification and deportation of illegal migrants. The application of the IMDT
Act and the Rules made thereunder in the State of Assam has created the
biggest hurdle and is the main impediment or barrier in identification and
deportation of illegal migrants. On the contrary, it is coming to the advantage
of such illegal migrants as any proceedings initiated against them un

## Text

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A
B
SARBANANDA SONOWAL
v.
UNION OF INDIA AND ANR.
JULY I 2, 2005
I
[R.C. LAHOTI, CJ., G .P. MA THUR AND P.K. BALASUBRAMANY AN, JJ.]
Jllegal Migrants (Determination by Tribunals) Act, 1_983:
C
Jllegal Migrants (Determination by Tribunals) Rules, 1984:
Constitution of India, 1950-Articles 14 and 355:
Act and Rules made applicable only to the State of Assam with
overriding effect over Foreigners Act-For the purpose of effective delection
D . and deportation of il!egal migrants-Jn the rest of the Country Foreigners
Act and Rules thereunder applicable-Constitutional validity pf the Act and
the Rules challenged-Held: the Act and the Rules are ultra vires the
Constitution-Procedure under Foreigners Act was far more effective in
detection and deportation of illegal migrants than the impugned Act-Rather
E it is so made as to give advantage to the illegal migrants and not for
achieving the real objective of the enactment-The provisions negate the
constitutional mandate under Article 355-Applicability of the Act to the
State of Assam alone, having no rational nexus with the policy and object
of the Act, is violative of Article 14-The Act has stripped Central Government
of its power to remove illegal migrants provided under Foreigners Act,
F Immigrants (Expulsion from Assam) Act, Passport (Entry into India) Ac/-
Tribunals constituted under the Act will cease to function and the cases
pending before it would be transferred to Tribunals constituted under
Foreigners Act-Passport (entry Into India) Act, 1920-Foreigners Act,
1946-Foreigners (Tribunals) Orders, 1964-Immigrants (Expulsion from
G Assam) Act, 1950-Passport Act, 1967-Citizenship Act, 1955-Section 6AEvidence Act, 1872-Section 106.
Words and Phrases:
'Aggression '-Meaning of in the context of Constitution of India.
H
472
SARBANANDA SONOWAL v. U.0.1.
473
Illegal Migrants (Determination by Tribunals) Act, 1983 and Illegal A
Migrants (Determination by Tribunals) Rules, 1984 were made applicable to
the State of Assam with the professed aim of making detection and deportation
of illegal migrants residing in the State of Assam. Writ Petition u/A 32 of
the Constitution of India was filed by way of Public Interest Litigation seeking
declaration of certain provisions of the Act as ultra vires the Constitution of B
India and declaration of Rules, as ultra vires the Constitution and also u/s 28
of the Act and also sought declaration that Foreigners Act, 1946 and Rules
made thereunder shall apply to the State of Assam.
Allowing the Petition, the Court
HELD: I.I. The provisions of the Illegal Migrants (Determination by C
Tribunals) Act, 1983 (IMDT Act) are ultra vires the Constitution of India.
The Illegal Migrants (Determination by Tribunals) Rules, 1984 are also ultra
vires and are struck down. (542-C; 543-A)
1.2. The procedure under the Foreigners Act and also under the D
Fortigners (Tribunals) Order, 1964 is far more effective in identification and
deportation of foreigners as compared to the procedure under the IMDT Act
and the Rules made thereunder. There being no corresponding provision like
Section 9 of the Foreigners Act which places the burden of proof upon the
person concerned who claims to be an Indian citizen, which is absolutely
essential in relation to the nature of inquiry being conducted regarding E
determination ofa 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 F
innumerable .and unsurmountable difficulties are created in the matter of
identification and deportation of illegal migrants. The application of the IMDT
Act and the Rules made thereunder in the State of Assam has created the
biggest hurdle and is the main impediment or barrier in identification and
deportation of illegal migrants. On the contrary, it is coming to the advantage
of such illegal migrants as any proceedings initiated against them under the G
said provision which almost entirely ends in their favour, enables them to have
a ~ocument having official sanctity to the effect that t~y are not mega\
migrants. (529-A-F)
·
1.3. There is good and sound reason for placing the burden of proof
upon the person concerned who asserts to be a citizen of a particular country. H
474
SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A In order to establish one's citizenship, normally he may be required to give
evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv)
their place of birth and citizenship. Some times the place of birth of his grand
parents may also be relevant like under Section 6-A(l)(d) of the Citizenship
Act. If the State authorities dispute the clai"! of citizenship by a person and
B 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. Though in a criminal case the general rule is
that the burden of proof is on the prosecution but if any fact is especially
C within the knowledge of the accused, he has to lead evidence to prove the said
fact. [505-G-H; 506-A-B]
Shambhu Nath Mehra v. The State of Ajmer, ·AIR (1956) SC 404;
Collector of Customs, Madras v. D. Bhoormull, AlR {1974) SC 859; State of
West Bengal v. Meer Mohd. Umar, [2000J 8 SCC 382; ~anjai@ Kaka v. State,
D (NCT of Delhi), (2001] 3 SCC 190 and Ezhil v. State of Tamil Nadu, AIR (2002)
SC 2017, relied on.
R .. v. Oliver, [1943] All ER 800 and R. v. Turner (1916) 5 Mand S 206
14 Digest 430; Williams v. Russel (1993) 149 LT 190; referred to.
E
1.4. IMDT Act cannot be said to be providing a very fair procedure for
determining whether a person is an illegal migrant or not. The Screening
Committee does not consist of any judicial member but is manned by the
executive. The same is the case with the Competent Authority. But the
Screening Committee or the Competent Authority have the power to reject
F an enquiry at the threshold by not making a reference to the Tribunal. The
figures supplied in the affidavits show that more than 85 per cent of the
enquiries were rejected in this manner. [520-B, C, DJ
1.5. Realising the serious law and order problem created by migration
from East Pakistan and the serious situation arising therefrom Immigrants
G (Expulsion from Assam) Act, 1950 was enacted and conferred very wide powers
upon the Central Government to direct removal of any person outside India.
However, on .account of Section 4 of the IMDT Act the 1950 Act has been
superseded and the provisions of the said Act have ceased to apply to the State
of Assam. Thus by enacting the IMDT Act the Parliament has divested the
Central Government of the power to remove migrants from Bangladesh, whose
H presence was creating serious law and order problem, which fact had been
SARBANANDA SONOWAL v. U.0.1.
475
realized by the Central Government as early as in 1950. The IMDT Act instead A
ofmaintaining peace has only revived internal disturbance.
[530-H; 531-A, BJ
1.6. The provisions of the The Passport (Entry into India) Act, 1920 have
been superseded by Section 4 of the IMDT Act. It has stripped the Central .
Government of its power of removal of such person from India and also the B
power of arrest of such person without warrant possessed by a police officer
of the rank of Sub-Inspector or above. (531-C, H; 532-A]
2.1. Provisions of the IMDT Act and the Rules made thereunder clearly
negate the constitutional mand~te contained in Article 355 of the Constitution, C
where a duty has been cast upon the Union of India to protect every State
against external aggressiOn and internal disturbance. The IMDT Act which
contravenes Article 355 of the Constitution is, therefore, wholly
unconstitutional and must be struck down. [532-B]
2.2. The foremost duty of the Ce~tral Government is to defend the D
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. Article 355 of the Constitution of
India deals with Duty of the Union to protect States against external aggressjon
and internal disturbance. [522-D]
E
Arthashastra by Kautilya translated by Shri L.N. Rangarajan, referred
to.
2.3. The word "aggression" is a word of very wide import. The word
"aggression" is not to be confused only with "war". Though war would be
included within the ambit and scope of the word "aggression" but it comprises F
many other acts which cannot be termed as war. "Aggression" is a word of
very wide import having complex dimensions and would to a large extent depend
upon fact situation and its impact. The word "aggression" is, therefore, an
all comprehensive word having very wide meaning. Its meaning cannot be
explained by a straight jacket formula but will depend on the fact situation of G
every case. The framers of the Constitution have consciously used the word
"aggression" and not "war" in Article 355. (523-A-B-C]
Kawasaki v. Bantahm S.S. Company, (1938) 3 All ER 80 and Chae Chan
Ping v. United States, 130 US 581, referred to.
H
476
SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A
Introduction to International Law by J.G. Starke; Indian Journal of
International Law Vol. 11 (1971) p. 724 and Essays on Modern Law of War
by L.C. Green; Conflict through Consensus by Julius Stone (1977 Edn.),
reierred to.
2.4. Presence of such a large number of illeg~I migrants froi:n
B Bangladesh, which runs into millions, is in fact an "aggression" on the State
of Assam and has also contributed significantly in causing serious "internal
disturbances" in the shape of insurgency of alarming proportion making the
life of the people of Assam wholly insecure and the panic generated thereby
has created a fear psychosis. This has resulted in seriously hampering the
C growth of the State of Assam although it has vast natural resources as people
from rest of the country have a general perception that it is a disturbed area
and this factor has resulted in not generating any employment opportunity
which has contributed to a large measure in giving rise to insurgency. The
impact is such that it not only affects the State of Assam but it also affects its
sister States like Arunachal Pradesh, Meghalaya, Nagaland, etc. as the route
D to the said places passes through the State of Assam. [S29-G-H; 530-A]
3.1. 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. The influx of Bangladeshi nationals who
E have illegally migrated into Assam pose a threat to the integrity and security
of north-eastern region. Their presence has changed the demographic
character of that region and the local people of Assam have been·reduced to
a status of minority in certain districts. In such circumstances, if the
Parliament had enacted a legislation exclusively for the State of Assam which
p
was more stringent than the Foreigners Act, which is applicable to rest of
India, and also in the State of Assam for identification of such persons who
migrated from the territory of present Bangladesh between 1st January, 1966
to 24th March, 1971, such a legislation would have passed the test of Article
14 as the differentiation so made would have had rational nexus with the avowed
policy and objective of the Act. But the mere making of a geographical
G classification cannot be sustained where the Act instead of achieving the object
of the legislation defeats the very purpose for which the legislation has be.en
made. 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
H criteria completely overlooking the other aspect of"rational nexus with the
SARBANANDA SONOWALv. U.0.1.
477
policy and object of the Act" it would be open to the legislature to apply A
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. (533-G-H; 534-A-D)
3.2. Even though an order may have been passed under the Foreigners
Act against an illegal migrant, he gets a right to make a representation to B
the Central Government for making a reference to the Tribunal, which will
then proceed in accordance with IMDT Act having a further right of appeal to
the Appellate Tribunal. There being no provision like Section 9 of the
Foreigners Act regarding burden of proof in the IMDT Act, the whole
complexion of the case will change in favour of the illegal migrant. This right C
is not available to any other person similarly situated against whom an order
under the Foreigners Act may have been passed, if he is in any other part of
India other than the State of Assam. (529-B)
Budhan Chaudhry v. State of Bihar, AIR (1955) SC 191; D.P. Joshi v.
State of Madhya Bharat, AIR (1955) SC 334; Kishan Singh v. State of D
Rajasthan, AIR (1955) SC 795; Gopi Chandv. Delhi Administration AIR (1959)
SC 609; Kangshari Haldar v. State of West Bengal, AIR (1960) SC 457 and
Clarence Pais v. Union of India, (2001) 4 SCC 325, referred to.
(532-D, F-G)
4. In a criminal trial where a person is prosecuted and punished for E
commission of a crime and may thus be deprived of his life or liberty, it is not
enough that h~ 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 dt:Jlortation, he is not being deprived of F
his life or personal liberty. The deportation proceedings are not proceedings
for prosecution where a man may be convicted or sentenced. The Foreigners
Act and the Foreigners (Tribunals) Order, 1964 are applicable to whole of
India and even to the State of Assam for identification of foreigners who have
entered Assam between lst January, 1966 and 24th March, 1971 in view of
the language used in Section 6-A of Citizenship Act. It is, therefore, not open G
to Union oflndia or State of Assam or for that matter anyone to contend that
the procedure prescribed in the aforesaid enactment is not just, fair and
reasonable and thus violative of Article 21 of the Constitution. The procedure
under the Foreigners Act and the Foreigners (Tribunals) Order, 1964 is just,
fair and reasonable and does not offend any constitutional provision.
H
(535-F-H; 536-A-B)
478
SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A
5. It cannot be said that aliens also possess several rights and the
procedure for their identification and deportation should be detailed and
elaborate in order to ensure fairness to them. 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
B India and they are liable to be deported. [536-C; 539-F]
Louis De Raedt v. Union of India, (1991) 3 SCC 554 and State of
Arunachal Pradesh v. KhudiRam Chakma, (1994) Supp. SCC 615, relied on.
[539-A, CJ
Rex v. Bottrill, (1947) 1 K.B. 41; Attorney-Genera/for Canada v. Cain,
C (1906) AC 542; Chae Chan Ping v. United States, (193~) U.S. 581; Fong Yue
Ting v. United States 149 U.S. 698 and Nishimura Ekiu v. United States, 142,
652, referred to. (537-C, D, F; 538-A, F)
Introduction to International Law by J.G. Starke (1st Indian re-print
D 1994) Chapter 12 (page 348); Oppenheim 's International Law (Ninth Edn.
1992 - 400, 401 and 413, referred to. (536-C, HJ
6. It cannot be said that 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. The principle has no
E application to the fact situation of the present case. The contention of the
petitioner is not that merely because the provisions of the IMDT Act provide
many safeguards to an alleged illegal migrant in comparison to the Foreigners
Act the IMDT Act is ultra vires. The contention is that as the Statement of
Objects and Reasons show that the influx of foreigners who illegally migrated
into India across the borders' of the sensitive Eastern and North-Eastern
F regions of the country and have remained in the country, pose a threat to the
integrity and security of the said region and further.their continuance in India
has given rise to serious problems and also the clandestine manner in which
these persons are trying to pass off as citizens of India has rendered their
detection difficult and there being need for their speedy detection and the
G interest of general public, a classification was made on geographical basis
whereby the Act was enforced only in the State of Assam in supersession to
the Foreigners Act. But the Act so made contains such provisions and
prescribes such procedure that it has become virtually impossible to detect
and deport a foreigner which is evident from the statistical data furnished by
the respondent themselves. The basis of differentiation. has thus no nexus with
H the object sought to be achieved and, therefore, the classification made for
-t
SARBANANDA SONOWAL v. U.0.1.
479
application of IMDT Act to·the State of Assam violates Article 14 and is A
consequently liable to be struck down. (539-G; 540-B-E]
The Special Courts Bill, (178) AIR (1979) SC 478 and A.R. Antulay v.
R.S. Nayak, AIR (1988) SC 153, referred to.
7. Section 8 of the IMDT Act is not similar to Section 9 of the B
Citizenship Act. Section 9 of the Citizenship Act applies to a situation where
the question is whether an Indian citizen has lost his citizenship by acquiring
the citizenship of a foreign country. Such a question can be decided only by
the Central Government. The present case is concerned with identification
and deportation of such Bangladeshi nationals who have illegally crossed the
international border and have taken up residence in Assam. The question of C
loss of Indian citizenship on account of acquisition of citizenship of another
country does not at all arise for consideration here. [540-F-G]
8. Article 51-A(d) of the Constitution says that it shall be the duty of
every citizen oflndia to defend the country and render national service when
called upon to do so. If an Act made by legislature has the disastrous effect of D
giving shelter and protection to foreign nationals who have illegally
transgressed the international border and are residing in India and further
the Act is unconstitutional, any citizen is entitled to bring it to the notice of
the Court by filing a writ petition under Article 32 of the Constitution.
(541-C-DJ E
Dr. D.C. Wadhwa v. State ofBihar, AIR (1987) SC 579 and R.K. Garg v.
Union of India, AIR (1981) SC 2138, followed. (541-E; 542-A)
Prof Yashpal and Anr. v. State of Chhattisgarh, JT (2005) 2 SC 165,
relied on. [542-B]
S.P. Guptav. Union of India, (1981) Supp. SCC 87, referred to.
[541-A]
F
9.1. 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, G
the Immigrants (Expulsion from Assam) Act, 1950 and the Passport Act, 1967
shall apply to the State of Assam. All cases pending before the Tribunals under
the Illegal Migrants (Determination by Tribunals) Act, 1983 shall stand
transferred to the Tribunals constituted under the Foreigners (Tribunals)
Order, 1964 and shall be decided in the manner provided in the Foreigners H
480
SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A Act, the Rules made thereunder and the procedure prescribed under the
Foreigners (Tribunals) Order, 1964. [542-C-E)
9.2. It will be open to the authorities of the Central Government or State
Government to initiate fresh proceedings under the Foreigners Act against
all such persons whose cases were not referred to the Tribunals constituted
B under the Illegal Migrants (Determination by Tribunals) Act, 1983 by the
competent authority whether on account of the recommendation of the
Screening Committee or any other reason whatsoever. The appeals pending
before the Appellate Tribunals shall be deemed fo have abated. (542-F, GJ
9.3. The respondents are directed to constitute sufficient number of
C Tribunals under the Foreigners (Tribunals) Order, 1964 to effectively deal
with cases of foreigners, who have illegally come fro_m Bangladesh or are
inegally residing in Assam. (543-EJ
D
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 131 of2000.
(Under Article 32 of the Constitution of India). '
Ashok H. Desai, Uday U. Lalit, Ms. Niti Dikshit, Prateek Jalan, Prashant
Kumar with them for the Petitioner.
Amarendra Sharan, Additional Solicitor General, K.K.Venugopal, M.N.
Krishnamani, Amit Bhandari, Ashok Bhan, Navin Prakash, Ms.Rekha Pandey,
E Ms. Purnima Bhat Kak, A. Subba Rao, Gaurav Aggarwal, Manish Tiwari, P.
Panneswaran, Ms. Sushama Suri, D.S. Mahra, Mrs.Anil Katiyar, S.B. Upadhay,
(NP}, Ms. Neelam Shanna, Tara Chandra Shanna, Ajay Shanna, Rupesh Kumar,
Tarun Shanna, Ms. Seema Bengani, Rituraj Biswas, Gopal Singh, Ms.Hemantika
Wahi, Ms. Sadhna Sandhu, Mrs. Monika Bapna, Shakil Ahmed Syed, V.K.
Sidharthan, J.R. Luwang, Atul Kumar, Anil Srivastava, Saurabh Srivastava,
F Ranjan Mukherjee, Azim H. Laskar, Anil K. Chopra, Abhijit Sengupta, Manish
Goswami, Sanjib Goswami, U.Hazarika and Ms. Sumita Hazarika with them for
the Respondents.
The Judgment of the Court was delivered by
G
G.P. MATHUR, J. I. This writ petition under Article 32 of the Constitution
of India has been filed by way of public interest litigation for declaring certain
provisions of the Illegal Migrants (Detennination by Tribunals) Act, (Act
No.39of1983) 1983 as ultra vires the Constitution oflndia, null and void and
consequent declaration that the Foreigners Act, 1946 and the Rules made
thereunder shall apply to the State of Assam. The second prayer made is to
H declare the Illegal Migrants (Detennination by Tribunals) Rules, 1984 as ultra
t
'
'
SARBANANDA SONOWAL v. U.0.1. [G.P. MATHUR, J.)
481
vires the Constitution of India and also under Section 28 of the aforesaid Act A
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 B
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 Chainnan of the North East Students' Organisation, which is an umbrella
organization of students' association from Assam, Meghalaya, Manipur, C
Nagaland1 Tripura and Arunachal Pradesh and has been actively involved in
issues conteming the rights of the people of Assam including the question
of illegal thigrants settled in the said State. The issues raised in the writ
petition concern all residents in the State of Assam whose rights as citizens
of India have been materially and gravely prejudiced by the operation of the
Illegal Migrants (Determination by Tribunals) Act, 1983 (hereinafter referred D
to as "the IMDT Act"). The principal grievance of the petitioner is that the
IMDT Act is wholly arbitrary, unreasonable and discriminates against a class
of citizens of India, making it impossible for citizens who are residents in
Assam to secure the detection and deportation of foreigners from Indian soil.
The Foreigners Act, 1946, applies to all the foreigners throughout India, but E
the IMDT Act which was enacted subsequently with the professed aim of
making detection and deportation of the illegal migrants residing in Assam
easier has completely failed to meet even the standards prescribed in the
Foreigners Act. That apart, even those provisions of the IMDT Act which
afford some measure of protection to some genuine Indian citizens against
illegal migrants are not being properly enforced due to extraneous political F
considerations in derogation of the rights of Indian citizens living in Assam.
The result of the IMDT Act has been that a number of non-Indians, who
surreptitiously entered into Assam after March 25, 1971 without possession
of valid passport, travel documents or other lawful authority to do so, continue
to reside in Assam. Their presence has changed the whole character, cultural G
and ethnic composition of the area and the IMDT Act creates a situation
whereunder it has become virtually impossible to challenge the presence of
a foreigner and to secure his detection, deportation or even deletion of his
name from the electoral list as they get protection on account of the provisions
of the Act. According to the census figures, which have been given in the
writ petition, the rate of growth of the population in Assam is far more than H
482
SUPREME COURT REPORTS (2005] SUPP. I S.C.R.
A rest of India which shows that large number of foreigners have migrated to
different areas of Assam and have settled there. It is further averred that in
view of the problem of illegal migration of foreigners into Assam and their
continued presence therein, a State wide protest movement of students was
organized which continued for a long period. As a result of the students'
B
movement and ensuing negotiations, a memorandum of settlement dated 15th
August, 1985 was entered into between All Assam Students' Union and the
Union oflndia and the State of Assam, which is commonly known as "Assam
Accord". The terms of the Accord specifically provided that steps would be
taken to detect and deport illegal migrants from Assam and it 1also contained
a clause that "the Government will give due consideration to certain difficulties
c 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
D
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
E January, 1966 a~d has been resident in Assam since then is deemed to be a
citizen of India, However, if such a person entered into Assam between l st
January, 1966 and before 25th March, 1971 and has been detected to be a
foreigner under the Foreigners Act then he is not entitled to be included in
the electoral list for a period of l 0 years from the date of detection. This
F
amendment of the Citizenship Act makes it clear that the, question of
determination or detection of a foreigner is to be governed by the provisions
of the existing Central legislation, viz. the Foreigners Act, 1946 and the
Foreigners (Tribunals) Order, 1964.
3. It is further pleaded that after signing of the As~am Accord, several
G assurances were given and sta~ements have bee11 made by the Central
Government that it is examining the failure of the IMDT Act regarding detection
and deportation of foreigners and it is considering steps to repeal the Act.
. A document was signed by Union Home Secretary and Chief Secretary of
Assam -on 27th January, 1990 regarding preparation of a time frame for classwise implementation of the Assam Accord and it was mentioned therein that
· H a decision on the repeal of the IMDT Act would be taken by 28th February,
r
t
;---
~
' I
SARBANANDA SON OW AL v. U .0.1. [G.P. MATHUR, J.)
483
1991. In a meeting held on 20th September, 1990 between Union Home Minister, A
Chief Minister of Assam and representatives of All Assam Students' Union,
the student union reiterated their demand for repeal of the IMDT Act, which
demand was noted and an assurance was given that the Central Government
would initiate discussions with other political parties. The Uni~n Home Minister
in a meeting held on I Ith August, 1997, wherein the petitioner was also
present in his capacity as President of the AASU, stated that the results - B
achieved were extremely poor. It was decided therein that Home Minister
would visit certain sectors of Indo-Bangladesh border to take. stock of the
situation regarding illegal immigration and the inadequacy of the measures
taken to prevent such immigration. Reference has been made to certain other
meetings with the officers of Government oflndia (Ministry of_ Home Affairs) C
on 6th April, 1998 and 23rd September, 1998 wherein it was informed that the
repeal of the IMDT Act was under active consideration of the Government.
It is averred in paragraph 5 (viii)(f) of the writ petition that the President of
India in his address to the Parliament in February, 1999 said that the repeal
of the Act was under active consideration of the Government. A meeting was
again held on 18th March, 1999 between the representatives of the Government D
of India and Government of Assam and also of All Assam Students' Union,
wherein it was assured that the repeal of the !MDT 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 E
difficulties created by .the provisions of the !MDT 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 F
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. G
In paragraph 7 of this affidavit, it was stated that a proposal to repeal the
IMDT Act is under consideration of Government oflndia. A copy of the reply
given by Shri l.D. Swami, Minister of State in the Ministry of Home Affairs
in the Rajya Sabha on 8th March, 2000 has been filed as Annexure R-2 to the
counter affidavit, wherein the Minister .had said that in the State of Assam
Foreigners Tribunals under the Foreigners Act, 1946 are functioning for H
......
484
SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.
A detection of illegal migrants, who had come to the State of Assam after 1st
January, 1966 and up to 24th March, 1971 and the Illegal Migrants Determination
Tribunals under the IMDT Act have been constituted for detection and
deportation of illegal migrants, who had entered into India on or after 25~h
March, 1971. The Hon'ble Minister had further stated that the Government
is of the view that application of the IMDT Act to the State of Assam alone
B is discriminatory and a proposal to repeal the said Act is under consideration
of the Government. A true copy of the latest status report filed by the
Government in Writ Petition No. 125 of 1998, which has been filed seeking
deportation of all Bangladeshi nationals from India, has been filed as Annexure
R-1 to the Counter Affidavit and paragraphs 3 to 7 of the said status report
C are being reproduced below :
"3. Continuing influx ofBangladeshi nationals into India has been on
account of a variety of reasons including religious and economic.
There is a combination of factors on both sides which are responsible
for continuing influx of illegal immigration from Bangladesh. The
D
important "Push Factors" on the Bangladesh side include: -
(a)
steep and continuous increase in population;
(b) sharp deterioration in land-man ratio;
(c)
low rates of economic growth particularly poor performance in
E
agriculture;
The "Pull Factors" on the Indian side include:
(a)
ethni~ proximity and kinship enabling easy shelter to the
immigrants;
F
(b) porous and easily negotiable border with Bangladesh;
(c)
better economic opportunities;
(d) interested religious and political elements encouraging immigration;
4. It is difficult to make a realistic estimate of the number ?f illegal
G
immigrants from Bangladesh because they enter surreptitjously and
are able to mingle easily with the local population due to ethnic and
linguistic similarities. The demographic composition in the districts
bordering Bangladesh has altered with the illegal immigration from
Bangladesh. The districts of Assam and West Bengal bordering
Bangladesh have recorded growth of population higher than the national
H
average. The States of Meghalaya, Mizoram and Tripura have also
-,
SARBANANDA SONOWAL v. U.0.1. [G.P. MATHUR, J.]
485
recorded high rates of population growth. Illegal immigrants from A
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.
B
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
(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 D
of India on 30.9.1972 setting out guidelines for aetion to be taken in
respect of persons who had come to India from Bangladesh. According
to this circular, those Bangladesh nationals who had come to India
before 25 March 1971 were not to be sent back and those who entered
India in or after the said date were to be repatriated."
E
In paragraph 12 of the counter affidavit it is stated that "the basic
objection of the petitioner is under consideration of the Central Government
that the IMDT Act and the Rules made thereunder are not effective in
comparison to the Foreigners Act, !946, which is applicable to the whole
country except to the State of Assam." In paragraph 18 of the counter F
affidavit it is stated that the administrative powers in respect of the IMDT Act
have been delegated to the Government of Assam under Section 21 of the
aforesaid Act. The second sub-paragraph of paragraph 18 and paragraph 19
of the counter affidavit are important and are being reproduced below :-
"It is further submitted that the detection/expulsion of illegal G
migrants under the IMDT Act, has bee_n extremely dismal. According
to the information furnished by the Government of Assam, the progress
in respect of detection/expulsion of illegal migrants (those who entered
Assam on or after 25.3.1971 upto 30.4.2000) is as follows:
H
A
B
c
D
E
486
SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
I
Total number of enquiries initiated
3,10,759
2
Total number of enquiries completed
3,07,955
3
Total number of enquiries referred to Screening
Committee
3,01,986
4
Total number of enquiries made by the Screening
2,98,465
Committee
5
Total number of enquiries referred to IM(DT)s
38,631
6
Total number of enquiries disposed of by IM(DT)s
16,599
7
Total number of persons declared as illegal
10,015
migrants
8
Total number of illegal migrants physically
1,481
expelled
9
Total number.of illegal migrants to whom
5,733
expulsion order served
;
10
Total number of enquiries pending with Screenin~
3,521
Committee
11
To.ta! number of enquiries pending with the
22,072
Tribunal
;,
in reply to para 9, it is submitted that the Chief Minister of Assam had
requested the then Prime Minister vide his Jetter dated 22.6.96 regarding
F
repeal of the !MDT Act. The Chief Minister again reiterated for scrapping
the IMDT Act, vi de his Jetter dated 31. 7 .96 addressed to the Home Minister.
This view has been reconfirmed by the State Govt. vide its message dated
23.4.98."
In paragraph 22 of the counter affidavit it is stated that a proposal to
G repeal the IMDT Act is under consideration of the Government of India and
in paragraph 24 it is stated that there is need for a uniform Act for detection
and deportation of foreigners for the entire country including Assam.
H
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
SARBANANDA SONOWAL v. U.0.1. [G.P. MATHUR, J.]
487
to the Central Government that the IMDT Act is operating against national A
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 B
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. L~rge scale satyagrah, bandhs, dharnas, etc. were
organized by AASU and All Assam Gana Sangram Parishad and the agitation C
got mass support from the people. After several rounds of discussion, a
memorandum of settlement known as Assam Accord was signed on 15th
August, 1985 which, amongst others, envisaged the provision for detection
and deletion of name of foreigners from the electoral roll and also their
deportation. Paragraph 8 of the counter affidavit, which has a bearing on the
controversy in hand, is being reproduced below :-
D
"8. That it is pertinent to mention that there has been a sharp increase
of the Muslim population in the Respondent/State in the last few
decades.
The statistical analysis of the sharp growth of Muslim population E
in Assam vis-a-vis Hindu population for the decades 1951-61, 196171and1971-1991 is as follows:
Assam
Year
Muslim
Hindu
1951-1961
38.37
33.70
1961-1971
30.99
37.18
..
1971-1991
77.42
41.89
(*Source Directorate of Census, Government of India)
The chart given above clearly indicates that Muslim population
of Assam has shown a rise of 77.42% in 1971-1991, whereas Hindu
population has risen by nearly 41.89% during the said period.
F
G
H
A
B
488
SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
There are three Districts in Assam, which has borders with
Bangladesh viz. Karimganj; Cachar and Dhubri.