2005 Supreme(SC) 873

2005(5) Supreme 10
Supreme Court of India
(Under Art. 32 of the Constitution of India)
R.C. Lahoti, CJI, G.P. Mathur & P.K. Balasubramanyan, JJ.
Sarbananda Sonowal —Petitioner
versus
Union of India & Anr. —Respondents
Writ Petition (C) No. 131 of 2000
Decided on 12-7-2005
Counsel for the Parties :
For the Petitioner : Ashok H. Desai, Uday U. Lalit, Sr. Advocates, Ms. Niti Dikshit, Prateek Jalan, Prashant Kumar, Advocates.
For the Respondents : Amarendra Sharan, Additional Solicitor General, K.K. Venugopal, M.N. Krishnamani, Sr. Advocates, Amit Bhandari, Ashok Bhan, Navin Prakash, Ms. Rekha Pandey, Ms. Purnima Bhat Kak, A. Subba Rao, Gaurav Aggarwal, Manish Tiwari, P. Parmes­waran, Ms. Sushama Suri, D.S. Mahra, Mrs. Anil Katiyar, S.B. Upadhyay, Advocate (NP), Ms. Neelam Sharma, Tara Chandra Sharma, Ajay Sharma, Rupesh Kumar, Tarun Sharma, Ms. Seema Bengani, Rituraj Biswas, Gopal Singh, Ms. Hemantika Wahi, Ms. Sadhna Sandhu, Mrs. Monika Bapna, Shakil Ahmed Syed, V.K. Sidharthan, JR. Luwang, Atul Kumar, Anil Srivastava, Saurabh Srivastava, Ranjan Mukherjee, Azim H. Laskar, Anil K. Chopra, Azim H. Laskar, Abhijit Sengupta, Manish Goswami, Sanjib Goswami, U. Hazarika and Ms. Sumita Hazarika, Advocates.

Important point
The provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Illegal Migrants (Determination by Tribunals) Rules, 1984 are declared to be ultra vires the Constitution of India and are struck down.

Headnote:(i) Illegal Migrants (Determination by Tribunals) Act (Act No. 39 of 1983), 1983—Sections 3, 4, 8, 8A, 10, 11, 12, 14, 20 and 25—Illegal Migrants (Determination by Tribunals) Rules, 1984—Rules 4 to 7, 8, 14 to 19—Foreigners Act, 1946—Sections 2(a), 3, 4(3), 5, 6, 7, 12, 14 (as amended by Act No. 16 of 2004), 14A, 14B, 14C—Constitution of India—Article 355—Public interest litigation challenging provisions of Illegal Migrants Act as null and void—Allegations that the IMDT Act creates a situation whereunder it has become impossible to challenge presence of foreigner in Assam—Bangladesh nationals who have crossed over to India, having created serious implications for national security—In view of stringent provisions in IMDT Act regarding detection and deportation of foreigners, illegal migrants whose pre­sence are in lakhs in State of Assam could not be deported—Onus of proof as illegal migrants lies on the prose­cution under IMDT Act which is oppos­ed to the Foreigners Act—Punishment provided under the Foreigners Act is more severe than under the IMDT Act—Provisions of IMDT Act and rules made thereunder are declared to be ultra vires the Constitution of India—All cases pending before the Tribunals under the IMDT Act shall stand transferred to Tribunals under the Foreig­ners (Tribunals) Order.

       Held : Procedure under the Foreigners Act and also under the Foreigners (Tribunals) Order, 1964 if far more effective in identification and deportation of foreigners as compared to the procedure under the IMDT Act and the Rules made thereunder. There being no corresponding provision like Section 9 of the Foreigners Act which places the burden of proof upon the person concerned who claims to be an Indian citizen, which is absolutely essential in relation to the nature of inquiry being conducted regarding determination of a person’s citizenship (where the facts on the basis of which an opinion is to be formed and a decision is taken are entirely within the knowledge of the said person) has made the task of the law enforcement agencies of the State not only difficult but virtually impossible. The IMDT Act has been so enacted and the Rules thereunder have been so made that innumerable and unsurmountable difficulties are created in the matter of identification and deportation of illegal migrants. (Para 39)

       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 said provision which, as demonstrated above, almost entirely ends in their favour, enables them to have a document having official sanctity to the effect that they are not illegal migrants. As already discussed, the presence of such a large number of illegal migrants from 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 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 to the said places passes through the State of Assam. (Para 39)

       In view of the discussion made above, the writ petition succeeds and is allowed with the following directions :

       (1) The provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Illegal Migrants (Determination by Tribunals) Rules, 1984 are declared to be ultra vires the Constitution of India and are struck down;

       (2) The Tribunals and the Appellate Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall 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 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 whose cases were not referred to the Tribunals by the competent authority whether on 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.

       (6) The respondents are directed to constitute sufficient number 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. (Para 58)

       (ii) Words and Phrases—Word ‘aggression’—Comprehensive word having very wide meaning—Influx of large number of persons from across the border into India would be an act of aggression—Constitution of India—Article 355—Foreigners Act, 1946.

       Held : One of the most respected and learned Judges of the recent times has termed the influx of persons from erstwhile colonies of Britain into Britain as “invasion”. 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 every case. The definition of “aggression” as adopted by UN General Assembly Resolution 3314 (XXIX) was, however, for a limited purpose, namely, where the Security Council or the United Nations Organization could interfere and adopt measures in the event of an aggression by one nation against another and the acts enumerated therein which may amount to aggression cannot restrict or curtail the meaning or the sense in which the word “aggression” has been used in Article 355 of the Constitution. (Para 36)