# SARBANANDASONOWAL A' v. UNION OF INDIA

- **Citation:** [2006] Supp. 10 S.C.R. 167
- **Court:** Supreme Court of India
- **Decided:** 2006-12-05
- **Bench:** S.B. Sinha, P.K. Balasubramany An
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sarbanandasonowal-a-v-union-of-india-21106
- **Pages:** 30

## Headnote

B
Constitution of India-Articles 14, 21and355-Foreigners Act, 1946Citizenship Act, 1955-Jllegal Migrants (Determination by Tribunals) Act,
1983 & Rules of 1984-Foreigners (Tribunals) Order, 1964-Foreigners C
(Tribunal) Amendment Order, 2006-Supreme Court earlier struck down 1983
Act as unconstitutional and directed transfer of cases pending in Tribunals
under the Act to the Tribunals constituted under 1964 Order-2006 Amendment
Order introduced to amend 1964 Order making it inapplicable to State of
Assam-Writ Petitions challenging the validity of the 2006 Amendment Order
before Supreme Court-Central Government justifying the amendment D
contending that all complaints now would be compulsorily referred to Tribunal
without making preliminary enquiry-Correctness of-Held, 2006 Amendment
Order is violative of Articles 14 and 355 of the Constitution-Amendment
Order is a subordinate legislation and hence it cannot violate a Central Act
and nullify the directions of this Court by making 1964 Order inapplicable to E
the State-amendment Order does not debar authorities to make preliminary
inquiry of a complaint before reference to the Tribunal-No facts/reasons
given justifying the amendment, hence Amendment Order struck down.
Petitioner filed a Writ Petition before this Court against Union of India
and others for declaring some of the provisions of the Illegal Migrants F
(Determination by Tribunals) Act, 1983 as constitutional, null and void and a
consequent declaration that the Foreigners Act, 1946 and the Rules made
thereunder would apply to the State of Assam. This Court in, Sarbananda
Sonowal v. Union of India & Ors., (2005) 5 SCC 665, allowed the Writ Petition
and struck down the provisions of the 1983 Act as being unconstitutional.
This Court directed that the Tribunals and Appellate Tribunals constituted G
under the Act shall cease to function; and that all cases pending before the
Tribunals under the Act shall stand transferred to the Tribunals constituted
under the Foreigners (Tribunals) Order, 1964 and shall be decided in the
167
H
168
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
'A manner provided thereurider. :tliis Court held that the illegal migrants coming
into the State of Assam cannot be treated differently from those who migrated
to other parts of the country lfaving regard to'ttie provisions of he Citizenship
Act, 1955 and the 1964 Order.
· i·
1
I -'
The Central Government amended the provisions of the 1964 Order
B by bringing Foreigners '(Triliitrial),Amendfuent.Oriler;r20061making the
1964 Order inapplicable to the State of Assam.
The !petitioner, \in'the .present Writ .Petitions, contended that the
Central Governnient,"bY way'ofa subordihate.legislation by bringing the
Amendment Order; 2006, sought to 'nullify;the directions of this Coud in
C its earlier decision to get·all .pending <easesifetating'to alleged immigrants
decided by the t'ribunal mider the 1964 Order; an<I .that the respondent,
instead-of obeying the'mandamus·of this ;Gourt;·given in the interests of
national security and•to preserve demographic'· balance and implementing
the 1964 Order in·Assam; chose.to make-the•l964.0rder inapplicable to
D the State.·.
, •
\.
_l
1'
. •
1~. \.;:
.The ·respo_nd_ents conte_nded that the,provisi.on_s ,of..th~ ~Q06 Order
had been brought)nto exjstence only with a view to given effect to ~he
directions ofthis·Court;,that the amendment.was !Dade to the 1964 Order
on the apprehensions ofltrouble/victimization ~f genui_ne. citizens aMh~
E hands of the specified authori~ies in the-nam~, of d~te~tio_n and depc:>.r_:tation
of forf:!igners was expressed; that suc!t a-,pr<wi~i_on\.had .. to be brought}_i;t
due to higher1,degree.of.in_cu_rsion of_ill_ega_l,~igra11~~ i_nto Assa~ when
compared to other States; that, under the 2006 Order, the Central
Government sliouldcom-ptilsorily;refer a(niatter.to:the TiibunaJ:-which was
F earlier- ·n·ot ·ma'nClaforyi under. the 11964 '0rder;· that the burden of• proof
urider 'the 1946lAd
1 is~

## Text

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....
SARBANANDASONOWAL
A'
v.
UNION OF INDIA
DECEMBER 5, 2006
[S.B. SINHA AND P.K. BALASUBRAMANY AN, JJ.]
B
Constitution of India-Articles 14, 21and355-Foreigners Act, 1946Citizenship Act, 1955-Jllegal Migrants (Determination by Tribunals) Act,
1983 & Rules of 1984-Foreigners (Tribunals) Order, 1964-Foreigners C
(Tribunal) Amendment Order, 2006-Supreme Court earlier struck down 1983
Act as unconstitutional and directed transfer of cases pending in Tribunals
under the Act to the Tribunals constituted under 1964 Order-2006 Amendment
Order introduced to amend 1964 Order making it inapplicable to State of
Assam-Writ Petitions challenging the validity of the 2006 Amendment Order
before Supreme Court-Central Government justifying the amendment D
contending that all complaints now would be compulsorily referred to Tribunal
without making preliminary enquiry-Correctness of-Held, 2006 Amendment
Order is violative of Articles 14 and 355 of the Constitution-Amendment
Order is a subordinate legislation and hence it cannot violate a Central Act
and nullify the directions of this Court by making 1964 Order inapplicable to E
the State-amendment Order does not debar authorities to make preliminary
inquiry of a complaint before reference to the Tribunal-No facts/reasons
given justifying the amendment, hence Amendment Order struck down.
Petitioner filed a Writ Petition before this Court against Union of India
and others for declaring some of the provisions of the Illegal Migrants F
(Determination by Tribunals) Act, 1983 as constitutional, null and void and a
consequent declaration that the Foreigners Act, 1946 and the Rules made
thereunder would apply to the State of Assam. This Court in, Sarbananda
Sonowal v. Union of India & Ors., (2005) 5 SCC 665, allowed the Writ Petition
and struck down the provisions of the 1983 Act as being unconstitutional.
This Court directed that the Tribunals and Appellate Tribunals constituted G
under the Act shall cease to function; and that all cases pending before the
Tribunals under the Act shall stand transferred to the Tribunals constituted
under the Foreigners (Tribunals) Order, 1964 and shall be decided in the
167
H
168
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
'A manner provided thereurider. :tliis Court held that the illegal migrants coming
into the State of Assam cannot be treated differently from those who migrated
to other parts of the country lfaving regard to'ttie provisions of he Citizenship
Act, 1955 and the 1964 Order.
· i·
1
I -'
The Central Government amended the provisions of the 1964 Order
B by bringing Foreigners '(Triliitrial),Amendfuent.Oriler;r20061making the
1964 Order inapplicable to the State of Assam.
The !petitioner, \in'the .present Writ .Petitions, contended that the
Central Governnient,"bY way'ofa subordihate.legislation by bringing the
Amendment Order; 2006, sought to 'nullify;the directions of this Coud in
C its earlier decision to get·all .pending <easesifetating'to alleged immigrants
decided by the t'ribunal mider the 1964 Order; an<I .that the respondent,
instead-of obeying the'mandamus·of this ;Gourt;·given in the interests of
national security and•to preserve demographic'· balance and implementing
the 1964 Order in·Assam; chose.to make-the•l964.0rder inapplicable to
D the State.·.
, •
\.
_l
1'
. •
1~. \.;:
.The ·respo_nd_ents conte_nded that the,provisi.on_s ,of..th~ ~Q06 Order
had been brought)nto exjstence only with a view to given effect to ~he
directions ofthis·Court;,that the amendment.was !Dade to the 1964 Order
on the apprehensions ofltrouble/victimization ~f genui_ne. citizens aMh~
E hands of the specified authori~ies in the-nam~, of d~te~tio_n and depc:>.r_:tation
of forf:!igners was expressed; that suc!t a-,pr<wi~i_on\.had .. to be brought}_i;t
due to higher1,degree.of.in_cu_rsion of_ill_ega_l,~igra11~~ i_nto Assa~ when
compared to other States; that, under the 2006 Order, the Central
Government sliouldcom-ptilsorily;refer a(niatter.to:the TiibunaJ:-which was
F earlier- ·n·ot ·ma'nClaforyi under. the 11964 '0rder;· that the burden of• proof
urider 'the 1946lAd
1 is~notrdiluted;:.ttiat the provisions of1Article 21ior.the
Constittition;tJeiiigiapplicable to:aiperson 'Wh0-had1already:.set his :feet in
India,· h-e would :be entitled to:claitn ~compliante of the:pririciples of natural
justice 'which ·,niay .not ibe;hece'ss·1i:ry :in:ifespect of a person. who has ;yet. to
enter-thellndian1terrifory.1JI l;lilj 'rl!h '!l'•i"'"" ... 1.
""'' J,
11,
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G . , (.t~h.4~.'f~ r: .ourl•sf ~lbtL0!'~1:!
bu~~;!r..fHH~l'···:t 'd'fj 1g~.1 u1 -•. ,l;1·1 ,.•1r
J ~f·
Allowing,tll~ W.rJt Petitions,,(he_,C9!'!t;t o) vh, 11, ,', 1 JI ·•' 1 • ,;.
· .1 l · ,, n , t• ·-:.riv•h, I ult "' h, 11 ,i- ni 1J hrrnl~ lluz!, nl •:IJ ·r;i,nu ,, , r :.•11 •
.. _ . H~~R~iP:, ~2l~~J.!~ ~.~~~?~~J?,~~~~i.~~,,t~.e,~p~~~~~~Wi;o-~s.,o.r.tr~~~l~(
victimization of genuine citizens at the hands of the specified authorities in
the name of detection and deportation of foreigners as contended by the Central
H
SARBANANDA SONOWAL v. U.O.I.
169
Government. Nothing was also shown to come to a conclusion that the 1964 A
Order worked harshly on anyone who was sought to be proceeded against
under the Foreigners Act, 1946 and under the 1964 Order. No particular
reason is given for making a departure from the existing procedure. No facts
or details are furnished in supp'ort. Ttie peculiar situation other than what is
noticed by this Court in it~ earlier decision is not explained.
B
1174-G; 175-D, F, G, HJ
Sarbananda Sonowa/ v. Union of India & Ors., {2005] 5 SCC 665,
referred to.
1.2. The making of the 1964 Order inoperative to the State is
discriminatory and is violative of Article 14 of the Constitution of India. C
No reasons are given to justify such exclusion. The notification making
the 1964 Order inapplicable to the State by the 2006 Order is unreasonable
and arbitrary, violating Article 14 of the Constitution of India. In making
the 1964 Order inapplicable to the State of Assam alone, when the other
States having boundaries with Bangladesh, are still expected to apply that D
Order, the respondents have acted arbitrarily and have not kept in mind
the interests of the country. No rational reason has been put forward to
justify such a separate treatment for the State. Therefore, the 2006 Order
is violative of Article 355 and Article 14 of the Constitution. (178-B, q
1.3. The Central Government or the authorities specified in this behalf, E
by reason of the provisions of the 2006 Order, are not precluded from making
an investigation or inquiry into a complaint received. A preliminary inquiry,
which may riot be as intrusive was necessary in terms of the 1964 Order,
must be held so as to form an opinion as to whether there is any truth or
substance in the allegations made in the complaint. 1185-A, B, C]
F
1.4. By .reason of the 2006 Order, the requirement to arrive at a
subjective satisfaction on the part of the- Central Government cannot be
said to have been taken away in view of the fact that expressions "by
order" and "refer the question" still exist in the statute and thus
appropriate meaning thereto should be assigned. Before a statutory G
authority passes an order or makes a reference to a Tribunal, a satisfaction
iflo be arrived at. Whenever such a satisfaction is to be arrived at, which
must be reflected in the order of reference, the same may be subject to
the principles of judicial review. [185-E-F)
The Barium Chemicals Ltd. & Anr. v. Sh. A.J. Rana & Ors., [1972] 1 H
170
SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.
A SCC 240; Kaiser-I-Hind (P) Ltd v. National Textile Corpn. (Maharashtra
North) Ltd, [2002) 8 SCC 182 and State Anti-Corruption Branch), Govt. of
NCTof Delhi & Anr. v. Dr. RC.Anand & Anr., (200414 SCC 615, referred to.
1.5. While interpreting the provisions of the Act, the changes made in
the expression will have to be taken into consideration; but, while doing so,
B the burden of the Central Government cannot be thrown on the Tribunal The
Central Government may not retain discretion in its own hands but by reason
thereof it cannot also refuse to perform its duties to make investi6ation in
the matter for the purpose of rendition of proper assistance to the Tribunal
for determining the question. The duty to protect the State and the nation
C from aggression rests with the Central Government. Even assuming that is
imperative on the part of the Central government to refer the question without
making an investigation, the Order does not debar the authority to place its
view point while referring a matter in the Tribunal. (187-G; 188-A, B, q
1.6. If a complaint is made and the Central Government merely forwards
D it, there will be no material before the Tribunal on the basis of which it would
be able to determine whether sufficient ground for proceeding with the matter
exists or not. If on the basis of such a complaint, the Tribunal comes to a
conclusion that there is no sufficient ground, it will have no other option having
regard to the phraseology used in 2006 Order to dismiss the same. But, if
the Tribunal is formulating the ground so as to er.able it to communicate the
E same to be alleged foreigner, the Tribunal would be able to proceed
methodologically. (188-D, EJ
I. 7. The Tribunal would have to apply its mind to the materials on
record to enable itself to arrive at a conclusion as to whether there exists
F any sufficient ground for proceeding in the matter. For the said purpose,
not only a satisfaction is required to be arrived at by the Tribunal but
the basic facts in respect thereof are required to be established. No
criterion has been laid down therefor. At that juncture, the Tribunal may
not have any assistance ofany other authority. Ex-facie, the Tribunal would
have to take the entire burden upon itself. (188-F, GI·
G
H
1.8. The Principle of Natural Justice is required to be complied with
before a Tribunal passes an order of deportation. The 1946 Act and the Orders
framed thereunder contain inbuilt procedure. The procedures laid down therein
are fair and unreasonable. Only because, the burden of proo.r is on the
procedure, it same by itself would pot mean that the procedure is ultra vires
•
SARBANANDA SONOWAL v. U.0.1.
171
the provisions of Article 21 of the Constitution of India. Article 21 would not A
be offended if the procedure is fair and unreasonable. (189-G-H; 190-A)
1.9. The 2006 Order is a subordinate legislation. It cannot violate a
substantive law made by the Parliament. The parent Act remains in force
and applicable. It is not open to the authority concerned to nullify the
directions of this Court by way of subordinate legislation by making 1964 B
Order inapplicable to the State of Assam. (190-F)
Kera/a Samsthana Chethu Thozhila/i Union v. State of Kera/a & Ors.,
(2006) 3 SCALE 534; Ashok Lanka & Anr. v. Rishi Dixit & Ors., (2005) 5
SCC 598; Bombay Dyeing & Mfg. Co. Ltd v. Bombay Environment Action C
Group & Ors., (2006) 3 SCALE 1 and Vasu Dev Singh & Ors. v. Union of
India & Ors., (2006) 11 SCALE 108, referred to.
R. v. Oliver, [19431 2 All ER 800 and Williams v. Russel, (1993) 149
LT 190, referred to.
Craies On Statute Law, 7th Edition, referred to.
1.10. A person, who claims himself to be a citizen of India in terms of
D
the Constitution of India or the Citizenship Act, is entitled to all safeguards
both substantive and procedural provided for therein to show that he is a
citizen. Having regard to the fact that the Tribunal in the notice to be sent to E
the proceeded is required to set out the main grounds; evidently the primary
onus in relation thereto would be on the State. However, once the Tribunal is
satisfied itself about the existence of grounds, the burden of proof would be
upon the proceeded. Only because burden of proof under certain situations is
placed on the accused, the same would not mean that he is deprived of the
procedural safeguard. (193-B; 194-F)
F
Hiten Pal Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 and Anil
Rishi v. Gurbaksh Singh. (2005) S SCALE 153. referred to.
1.11. A strict implementation of the directions of this Court issued
in Sarbananda Sonowal v. Union of India & Ors., (2005) 5 SCC 665 so as G
to ensure that illegal immigrants are sent out of the country, while inspite
of lapse of time, the Tribunals under the 1964 Order had not been
strengthened. There is a lack of will in the matter of ensuring that illegal
immigrants are sent out of the country. The.2006 Order has been issued
just as a cover up for non-implementation ofthe directions of this Court. The
H
...
172
·SUPREME COURT REPORTS {2006] SUPP. 10 S.C.R.
A 2006 Order.does:not serve the purpose~ought to be achieved;by the·1946:Act
or the Citizenship 'Act, and the obligations cast on. the Central Government to
protect the nation in terms of Article 355 of the Constitution of India. The
20060rde'fiS'therefore'found fo be unreasonable and isstied:in·an arbitrary
exerdse'of power.'[l95;G;•196.:A, B;'CJ'''': ' 1 .i:
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i.w 1 GIVlLORIGINAc-JURISDICTION: Writ·Petition (Civil) No. 117 of2006.
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(Under Article 32 of the Constitution of India.)
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K.K. Veniigopal, Riku Sarrna and Momta Devi Oniom for the State of
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one. aniendmg the Foreigners (Tribunal) Order, 1964 and the other, the,
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filed WP (C) No! 131 of2000 und~r'ArtiCie·j2
of tile'icoH~iiil.iti3iPof iiiaia'againstu'nion' of 1riaia anC!
1oihefs 1for'decfarfog'
so'thd 'of tile'
1 prclvisi6~s 'of the Illegal Migrantf'(Det~nninatioit"by' Tribi'.irials):
f1 Act, I 983 (for short "the IMDT Act") as' u~coristihltional, n'ull 1 and· vdld and 1
a consequent declaration1that the Foi:eigners,Act, 1946 (for-short 'the· 1946
Act') and the Rules made.thereunder .would apply to th~ ,State of Assam. The
pleas raised in the said writ petition found favour with a 3-Judge Bench of
ttiis,Cou·it,'in .. the :(lecision re·potted ,in [2005)-5 SCC 665. The said •deCision
G> is 1hereiilafter referre"d io ;as Sonowal I. It was directed therein: .
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1 ~_.1 i"84."ln·.view of, the discussion made .abovt',!, the writ.petition suc~eeds
k·ni!• andris·allowed1with1the;following directions:., . ,
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SARBANANDA SONOWAL v. U.0.1. [S.B. SINHA, J.]
173 ·
Tribunals) Act, 1983 and the Illegal Migrants (Determination by A
Tribunals) Rules, 1984 are declared to be ultra vires the Constitution
and are struck down.
(2) The Tribunals and the Appellate Tribunals constituted under
the Illegal Migrants (Determination by Tribunals) Act, 1983 shall B
cease to function.
(3) All cases pending before the Tribunals under the Illegal
Migrants (Determination by Tribunals) Act, 1983 shall stand
transferred to the Tribunals constituted under the Foreigners (Tribunals)
Order, 1964 and shall be decided in the manner provided in the C
1
Foreigners Act, the Rules made thereunder and the procedure
prescribed under the Foreigners (Tribunals) Order, 1964.
(4) It will be open to the authorities to initiate fresh proceedings
under the Foreigners Act against all such persons w~ose. cases wer,e
not referred to the Tribunals by the competent authority whether on O
account of the recommendation of the Screening Committee or any
other reason whatsoever.
(5) All appeals pending before the Appellate Tribunal shall be
deemed to have abated.
E
(6) The respondents are directed to constitute sufficient number:
i
of Tribunals under the Foreigners (Tribunals) Order, 1964 to
effectively deal with cases of foreigners, who have "illegally come
from Bangladesh or are illegally residing in Assam."
The Court while issuing the aforementioned .directions considered the. F,
provisions of the IMDT Act in great detail vis-a-vis, the duties and functions
•
of the Central Government and other States in terms of Article 355 of the
Constitution of India and the problem of illegal migration of citizens of
Bangladesh inter alia into the State of Assam and the threat posed by it to
the security of the nation.
3.
This Court opined that there was absolutely no reason why the
illegal migrants coming into the State of Assam should be treated differently
from those who had migrated to the other parts of the country having regard
to the provisions of the Citizenship Act, 1955 and the Foreigners (Tribunals)
Order 1964 (for short "the 1964 Order").
4. Subsequent to the said. decision, instead of implementing the
G
' )
174
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A directions therein, the Central Government in exercise of its power under
Section 3 of the 1946 Act made an Order known as "the Foreigners (Tribunal)
Amendment Order, 2006" (for short "the 2006 Order''), which was published
in the Official Gazette dated I 0th February, 2006. On 10th February, 2006, the
Central Government amended the 1964 Order principally making the same
B inapplicable to the State of Assam. Clause 2 of the said Order reads thus:
c
"In the Foreigners (Tribunal) Order, 1964:-
(a) paragraph 1 shall be renumbered as sub-paragraph (I) thereof
and after sub-paragraph (1) as so renumbered the following subparagraph shall be inserted, namely:-
"(2) This Order shall apply to the whole of India except the State
of Assam."
Thus by way of a subordinate legislation the directions issued by this
Court in the earlier binding decision to get all pending cases relating to
D alleged immigrants decided by the Tribunal under the 1964 Order is sought
to be nullified. It is done in spite of the reasoning in Sonowal l leading to
the directions issued therein. It must be noted that the parent Act stands
unamended.
5. Instead of obeying the mandamus issued by this Court essentially in
E the interests of national security and to preserve the demographic balance of
a part of India, that is Bharat, and implementing the 1964 Order in Assam
in letter and spirit, the Authorities that be, have chosen to make the 1964
Order itself inapplicable to Assam. Whether the authority that should be
interested in the welfare of the nation, its security and integrity, can do so in
the light of the facts noticed and relied on in Sonowal I is the question? In
F the reply filed on behalf of the Union of India, after stating that some steps
have been taken to implement the directions of this Court in the earlier writ
petition, it is stated:
G
"In the meantime, Representations were received by the Government
oflndia from various organizations of Assam for providing safeguards
for genuine Indian citizens either by framing a new law or by amending
the existing provisions. Apprehensions of trouble/victimization of
genuine citizens at the hands of the specified authorities in the name
of detection and deportation of foreigners was expressed."
H Adequate facts, nay, no fact, is pleaded to justify such apprehension. It is
SARBANANDASONOWALv. U.0.1. [S.B. SINHA,J.]
175
not explained how Indian citizens would suffer if the 1964 Order is enforced. A
On the other hand, it is stated in the reply itself in paragraph 2:
"In exercise of the powers conferred by Section 3 of the Foreigners
Act, 1946, Foreigners Tribunals ("Tribunals") were set up in the
1960s under the Foreigners (Tribunal) Order, 1964 in the State of
Assam only though the Foreigners (Tribunal) Order 1964 has all B
India application and Tribunals can be set up jn other parts of the
country. Under the Foreigners (Tribunal) Order, 1964, the procedure
provided for disposal of questions referred to the Tribunals was that
the Tribunal would serve upon the person, to whom the question
relates, a copy of the main grounds on which the person is alleged to C
be a foreigner and reasonable opportunity was provided for making
a representation and producing evidence in defence. Such a person
was also to be afforded personal hearing if so desired."
Nothing was also shown at the time of arguments to persuade us to come to
a conclusion that the 1964 Order worked harshly on anyone who was sought D
to be proceeded against under the Foreigners Act and under that Order. The
present exercise is therefore seen to be not a commendable attempt to evade
the directions issued by this Court in the earlier round. That too, by way of
subordinate legislation. Though, we would normally desist from commenting,
when the security of the nation is the issue as highlighted in Sonowal I, we
have to say that the bona fides of the action leaves something to be desired. E
Although bona fides on the part of authority vested with power to make
delegated legislation ordinarily is not a relevant factor, the question is whether
the manner in which it is sought to be done is sufficient in law to get rid of
the judgment of this Court in Sonowal I. . After thus removing the 1964 Order
from the scene, the new Order of 2006 has been issued. Here also, except F
the reason already set out, no particular reason is given for making a departure
from the existing procedure. It is stated in paragraph 2(1) of the reply:
"On consideration of the representations, provisions of the Foreigners
Act, 1946 and the peculiar situation of Assam, it was considered
necessary to have a separate procedure for the Foreigners Tribunals G
in the State of Assam. It is pertinent to note that a separate procedure
for detection of foreigners has already been in existence in Assam for
the last 40 years."
No facts or details are furnished in support. What is the peculiar situation
other than what is noticed in Sonowal I is not explained,.
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6. Paragraph 2 of the 2006 Order provides for constitution of tribunals
in the following terms:
"2. Constitution of Tribunals:- (1) The Central Government or any
authority specified in this regard shall, by order, refer the question as
to whether a person is or Is not foreigner within the meaning of he
Foreigners Act 1946 (31 of 1946) to a Tribunal to be constituted for
the purpose, for its opinion.
(2) The registering authority appointed under sub-rule (1) of rule l6F
of the Citizenship Rules, 1956 shall refer to the Tribunal the question
whether a person of Indian origin complies with any of the
requirements under sub-section (3) of Section 6A of the Citizenship
Act, 1955 (57 of 1955).
(3) The Tribunal shall consist of such number of persons having
judicial experience as the Central Government may think fit to appoint.
D
(4) Where the Tribunal consists of two or more members, one of
them shall be appointed as the Chairman thereof.
E
F
G
H
(5) Till any Tribunal is constituted under sub-paragraph (1), the
Tribunal constituted under the Foreigners (Tribunal) Order, 1964 shall
be deemed to be Tribunals for the purposes of this Order."
Paragraph 3 refers to the procedure for disposal of questions arising.
"3. Procedure for disposal of questions:- (1) The Tribunal upon
receipt of a reference under sub-paragraph (1) of paragraph 2, shall
consider whether there is sufficient ground for proceeding and if the
Tribunal is satisfied that basic facts are prima facie established, it
shall serve on the person to whom the question relates, a copy of the
main grounds on which he is alleged to be a foreigner and give him
a reasonable opportunity of making a representation and producing
evidence in support of his case and after considering such evidence
as may be produced and after hearing such persons as may desire to
be heard, the Tribunal shall submit its opinion to the officer or authority
specified in this behalf in the order of reference.
(2) The Tribunal shall, before giving its opinion on the question
referred to in sub-paragraph (2) of paragraph 2, give the person in
respect of whom the opinion is sought, a reasonable opportunity to
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SARBANANDA SONOWAL v. U.0.1. [S.B. SINHA, J.]
177
represent his case.
(3) Subject to the provisions of this Order, the Tribunal shall have
power to regulate its own procedure."
A
The Tribunal in terms of paragraph 4 of the 2006 Order shall have the
powers of a Civil Court while trying a suit under the Code of Civil Procedure B
in respect of (i) summoning and enforcing the attendance of any person and
examining him on oath; (ii) requiring the discovery and production of any
document; and (iii) issuing commissions for the examination of any witness.
7. Apart from the provisions of the Constitution of India, the matter
relating to detennination of the question as to whether a person is a foreigner C
or not is provided under the 1946 Act.-
The Central Government, in exercise
of its power conferred under the said Act, made an Order known as the
Foreigners (Tribunals) Order, 1964.
Section 9 of the 1946 Act 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
D
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, E
notwithstanding anything contained in the Indian Evidence Act, 1872
(I of 1872), lie upon such persor.."
Rule 3 of the 1964 Order provided the procedure for disposal of the
question.
The 1964 Order has now been made inapplicable to the State of F
Assam. Despite a clear direction in Sonowal I in regard to strict implementation
of the equality clause amongst the migrants from Bangaldesh, the Central
Government made the 2006 Order which is applicable to the State of Assam
only.
8. The factual position that obtains is that as on 3 lst December, 2005, G
14,947 cases were pending before the Foreigners Tribunals functioning in
Assam and 29,429 persons who came to Assam between !st January, 1966
and 24th March, 1971 were identified as foreigners. As far as the Tribunals
set up under the IMDT Act were concerned, as on 12th July, 2005, 88,770
cases were pending and 12,846 persons who came into Assam after 25th
March, 1971 were declared as illegal migrants.
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SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.
A
9. We shall first consider the validity of the amendment to the 1964
Order by notification No. GSR 57 (E) dated New Delhi, the 10th February
2006 so as to make it inapplicable to the State of Assam in the context of
prayer (A) in W.P. (C) No. 119 of 2006. It has already been held in Sonowal
I that the special treatment sought to be meted out to Assam is not justified
B and the extending of a special Act to that territory alone is discriminatory.
The same reasoning applies on all fours to the removing of the 1964 Order
from the scene. Such removal or such making of the Order of 1964 inoperative
to the State of Assam alone is discriminatory and is violative of Article 14
of the Constitution.
C
IO. We have already pointed out that no reasons are given to justify
D
such exclusion. It was all the more necessary to do so in the light of the
reasoning in Sonowal I and the directions issued therein. It is hence found
that the notification making the 1964 Order inapplicable to Assam by amending
Clause 2 of the said Order is unreasonable and arbitrary, violating Article 14
of the Constitution of India.
11. In making the 1964 Order inapplicable to Assam alone, when the
other States having boundaries with Bangladesh, are still expected to apply
that Order, the respondents have acted arbitrarily and have not kept in mind.
the interests of the country as highlighted in Sonowal I. No rational reason
has been put forward to justify such a separate treatment for Assam especially
E in the context of the report of the then Governor of Assam and the other facts
discussed in the earlier decision and the earlier decision itself. Therefore, the
amendment brought about to the 1964 Order by Notification G.S.R. 57 (E)
dated New Delhi, the l 0th February 2006 issued by the Government of India
has to be held to be violative of Article 355 and Article 14 of the Constitution.
p The said Notification is struck down in terms of prayer (a) in W.P. (Civil)
No. 119 of 2006.
12. It is also seen to be an attempt by way of a piece of subordinate
legislation to nullify the mandamus issued by this Court.
The parent Act
remains in force and applicable.
It is not open to the authority concerned
G to nullify the directions of this Court by way of subordinate legislation by
making the very 1964 Order inapplicable to the State of Assam, especially
in the light of the reasoning in Sonowa/ I.
13. Thus, if the Order making the 1964 Order to 1 the State of Assam
inapplicable is found invalid, there is no question of the 2006 Order being
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SARBANANDA SONOWAL v. U.O.I. [S.B. SINHA, J.]
179
promulgated to replace the 1964 Order. The attempt has to be held to be still A
born especially in the context of Sonowal I and the reasoning therein.
The
field continues to be occupied by the 1964 Order and the 2006 Order cannot
operate parallelly.
Moreover, the 2006 Order will fall on the basis of the
reasoning in Sonowal I.
14. Though this is the position, out of deference to the arguments raised B
before us, we will consider the challenge to the 2006 Order independently.
15. A comparative chart showing the changes brought about in
paragraphs 2 and 3 of the 1964 Order by reason of the 2006 Order may be
noticed as under:
Clause
Foreigners (Tribunals)
Foreigners (Tribunals for
Order 1964
Assam) Order 2006
2(1)
The Central Government
The Central Government or
Constitution of
may by order, refer the
any authority specified in
Tribunals
question as to whether a
this regard shall, by order,
person is or is not a
refer the question as to
foreigner within the
whether a person is or is
meaning of the Foreigners
not a foreigner within the
Act, 1946 (31 of 1946) to
meaning of the Foreigners
Tribunal to be constituted
Act, 1946 (31 of 1946) to a
for the purpose, for its
Tribunal to be constituted
opinion.
for the purpose for its
opinion.
3(1)
The Tribunal shall serve
The Tribunal upon receipt
Procedure for
on the person to whom
of a reference under subdisposal of
the question relates, a
paragraph (I) of paragraph
questions
copy of the main grounds
2, shall consider whether
on which he is alleged to
there is sufficient ground
be a foreigner and give
for proceeding and if the
him a reasonable
Tribunal is satisfied that
opportunity of making a
basic facts are prima facie
representation and
established, it shall serve
producing evidence in
on the person to whom the
support of his case and
question relates, a capy
after considering such
of the main grounds on
which he is alleged to be a
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SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
evidence as may be
produced after hearing ·
such persons as may
deserve to be heard, the
Tribunal shall submit its
opinion to the officer or
authority specified in this
behalf in the order of
reference.
foreigner and give him a
reasonable. opportunity of
making a representation
and producing evidence in
support of his case and
after considering such
evidence
as
may
be
produced and after hearing
such persons as may desire
to be heard, the Tribunal
shall submit its opinion to
the officer or authority
specified in this behalf in
the order of reference.
The learned Solicitor General appearing on behalf of the Union of India
and Mr. K.K. Venugopal, learned senior counsel appearing on behalf of the
D State of Assam submitted that the provisions of the 2006 Order had been
brought into existence only with a view to give effect to the judgment of this
Court in Sonowal I. It was contended that given the higher degree of incursion
of illegal migrants into Assam when compared to other States of the Union
and in view of the special features, such a provision had to be brought in.
E It was urged that whereas under the 1964 Order the Central Government might
or might not refer a matter to the Tribunal, the same has been made mandatory
under the 2006 Order.
According to the learned counsel, the Central
Government earlier had an option to refer a matter, but now it did not have.
Once, however, a reference is made to the Tribunal without making any
enquiry whatsoever, it would be for the Tribunal, which has a quasi-judicial
F function to perform, to determine the question as to whether a prima facie
case has been made out for issuance of a show-cause notice having regard
to the sufficiency or otherwise of the grounds which can be found out from
the material placed before it.
By reason thereof, the burden of proof as
specified under the 1946 Act is not diluted. The provisions of Article 21 of
G the Constitution of India being applicable to a person who had already set
his feet in India he would be entitled to claim compliance of the principles of
natural justice which may not be necessary in respect of a person who has
yet to enter the Indian territory.
16. Articles 5, 6 and I 1 of the Constitution of India read as under:
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SARBANANDA SONOWAL v. U.0.1. [S.B. SINHA, J.]
181
"5. Citizenship at the commencement of the Constitution.-At the A
commencement of this Constitution every person who has his domicile
in the territory of India and-
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
B
(c) who has been ordinarily resident in the territory of India for not
less than five years preceding such commencement, shall be a citizen
of India.
6. Rights of citizenship of certain persons who have migrated to
India from Pakistan.-Notwithstanding anything in article 5, a person C
who has migrated to the territory of India from the territory now
included in Pakistan shall be deemed to be a citizen of India at the
commencement of this 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 Act, 1935 (as originally D
enacted); and-
(b) (i) in the case where such person has so migrated before the
nineteenth day of July, 1948, he has been ordinarily resident in the
territory of India since the date of his migration, or
E
(ii) in the case where such person has so migrated on or after the
nineteenth day of July, 1948, he has been 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 therefore to such
officer before the commencement of this Constitution in the form and F
manner prescribed by that Government:
Provided that no person shall be so registered unless he has been
resident in the territory of India for at least six months immediately
preceding the date of his application.
I I. Parliament to regulate the right of citizenship by law. Nothing G
in the foregoing provisions of this Part shall derogate from the power
of Parliament to make any provision with respect to the acquisition
and termination of citizenship and all other matters relating to
citizenship."
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SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A
17. The matter relating to illegal migration to Assam finds place in
B
c
D
E
F
G
clause (3) of Article 6-A of the Citizenship Act. It reads as under:
"(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 lst 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 '.or 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 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 sub-section, the registering authority
shall,
(i) if such opinion contains a finding with respect to such other
requirement, decide the question in conformity with such finding;
(ii) if such opinion does not contain a finding with respect to
such other requirement, refer the question to a Tribunal constituted
under the said Order having jurisdiction in accordance with such
rules as the Central Government may make in this behalf under
Section 18 and decide the question in conformity with the opinion
received on such reference."
The Foreigners Tribunal, it is said, has not been set up in any other part
H of India except the State of Assam. A different regime, therefore, exists in
•
SARBANANDA SONOWAL v. U.0.1. [S.B. SINHA, J.]
183
Assam from the rest of the country. If no tribunal has been established in A
the rest of the country, foreigners are identified by the executive machinery
of the State. Thus, the province of Assam only has been singled out for
adopting a different procedure. The problem in regard to illegal migration
faced by Assam is also faced by other States including the States of West
Bengal, Tripura, etc.
It is, therefore, not in dispute that two different B
procedures have. been laid down by the Central Government by issuing two
different notifications on the same day.
18.