The burden of proof lies on the alleged foreigner under Section 9 of the Foreigners Act, 1946, and the procedure for disposal of questions under the Foreigners (Tribunals) Order, 1964 does not violate Article 21 of the Constitution of India.

Judgment

S.B. SINHA, J. - The validity of two pieces of subordinate legislation, one amending the Foreigners (Tribunals) Order, 1964 and the other, the Foreigners (Tribunals for Assam) Order, 2006 in the context of an earlier decision rendered by this Court is the question involved in these writ petitions filed under Article 32 of the Constitution of India by the petitioners.

2. Sarbananda Sonowal filed WP (C) No. 131 of 2000 under Article 32 of the Constitution of India against the Union of India and others for declaring some of the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 (for short "the IMDT Act") as unconstitutional, null and void and a consequent declaration that the Foreigners Act, 1946 (for short "the 1946 Act") and the Rules made thereunder would apply to the State of Assam. The pleas raised in the said writ petition found favour with a three - Judge Bench of this Court in Sarbananda Sonowal v. Union of India I. The said decision is hereinafter referred to as Sonowal II. It was directed therein: (SCC p. 726, para 84)

"84. 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 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 there - under 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 C 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."

3. The Court while issuing the aforementioned directions considered the 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.

4. 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").

5. Subsequent to the said decision, instead of implementing the directions therein, the Central Government in exercise of its power under Section 3 of the 1946 Act made an order known as the "Foreigners (Tribunals) Amendment Order, 2006" (for short "the 2006 Order"), which was published in the Official Gazette dated 10 - 2 - 2006. On 10 - 2 - 2006, the Central Government amended the 1964 Order principally making the same inapplicable to the State of Assam. Clause 2 of the said Order reads thus:

"2. In the Foreigners (Tribunals) Order, 1964 - -

(a) para 1 shall be renumbered as sub - p