Assam Sanmilita Mahasangha vs Union of India

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(SC) 899

SUPREME COURT OF INDIA
Ranjan Gogoi, R.F. Nariman, JJ.
Assam Sanmilita Mahasangha & Ors. – Petitioners
Versus
Union of India & Ors. – Respondents
WRIT PETITION (CIVIL) NO. 562 OF 2012
WITH
Assam Public Works – Petitioner
Versus
Union of India & Ors. – Respondents
WRIT PETITION (CIVIL) NO. 274 OF 2009
WITH
All Assam Ahom Association & Ors. – Petitioners
Versus
Union of India & Ors. – Respondents
WRIT PETITION (CIVIL) NO. 876 OF 2014
Decided On : 17-12-2014

Advocates:
MAIN POINTS
Article 32 itself is a fundamental right.
Petition under Article 32 raising pleas under Articles 21 and 29 cannot be dismissed at the threshold on ground of delay and latches.
Article 145(3) requires that substantial question of interpretation of Constitution should be referred to a Constitution Bench.
Directions issued for implementation of section 6(3) and (4) of the Citizenship Act, 1955.

Headnote:(a) Constitution of India – Article 32 – Heart and soul of the Constitution guaranteeing right to move Supreme Court for enforcement of fundamental rights – Article 32 itself becomes a fundamental right. (Para 21)
       (b) Constitution of India – Article 32 – Delay and latches – Writ petition under Article 32 can be dismissed on ground of delay – However, no time limit except utmost expedition laid down – Maintainability of delayed petition depends on facts of each case considering nature and extent of breach of the fundamental right, remedy claimed, explanation for delay and accrual of third party rights. (Para 22, 23, 24, 25, 29)
       (1974) 1 SCC 317; (2004) 11 SCC 526; (2009) 1 SCC 768; (2012) 3 SCC 727 – Relied upon
       (1969) 1 SCC 110; (1970) 1 SCC 84 – Referred
       © Constitution of India – Article 32 – Petition under – Delay and latches – Pleas raised by whole class of people under Articles 21 and 29 – Agitations on this core ongoing – Petitions cannot be dismissed at the threshold on ground of delay/latches. (Para 31)
       (1978) 1 SCC 248; (2003) 6 SCC 1; (1985) 3 SCC 545 – Relied upon
       (d) Constitution of India – Article 145(3) – Substantial question of interpretation of Constitution arising – Matter referred to be place before a Constitution Bench. (Para 33, 34)
       (e) Citizenship Act, 1955 – Section 6(3) and (4) – Implementation of Assam accord – Detection and deportation of illegal immigrants from Bangka Desh – The Immigrants (Expulsion of Assam) Act, 1950 – Constitution of Foreigners tribunal extremely slow, and results disappointing – Almost 1,50,000 persons deported between 1961 to 1965 but the number of deportations from 1985 till date stated to be a mere 2,000 odd, mostly if not all “push backs” – Entire Bangla Desh border remaining porous – Directions issued to ensure taking effective steps to prevent illegal access to the country from Bangladesh; to detect foreigners belonging to the stream of 1.1.1966 to 24.3.1971 so as to give effect to the provisions of Section 6(3) & (4) of the Citizenship Act and to detect and deport all illegal migrants who have come to the State of Assam after 25.3.1971. (Para 39, 42, 46)
       (2005) 5 SCC 665 – Relied upon
       (2007) 1 SCC 174 – Referred
       Facts of the case:
       Desperate with large scale influx of illegal immigrants from Bangla Desh, the people of Assam have assailed the section 6A of the Citizenship Act.
       Finding of the Court:
       Pleas raised under Articles 21 and 29. Petition under Article 32 cannot be dismissed for delay an latches.
       Result: Constitutional questions referred to Constitution bench. Directions issued under section 6(3) and (4) of Citizenship Act, 1955.

JUDGMENT

R.F. Nariman, J.

1. A Prophet is without honour in his own country. Substitute ‘citizen’ for ‘prophet’ and you will get the gist of the various writ petitions filed under Article 32 of the Constitution of India assailing Section 6A of the Citizenship Act.

2. It all began when the Burmese ceded Assam to the British on 24th February, 1826 as per the treaty of Yandabo, thus bringing to an end Ahom rule in Assam which had begun sometime in the 13th century. The British annexed Assam and placed it as an administrative unit of the Bengal Province. As early as 1931, C.S. Mullan, the Census Superintendent in his census report stated:

“Probably the most important event in the province during the last 25 years- an event, moreover, which seems likely to alter permanently the whole feature of Assam and to destroy the whole structure of Assamese culture and civilization has been the invasion of a vast horde of land-hungry immigrants mostly Muslims, from the districts of East Bengal. … wheresoever the carcass, there the vultures will gathered together ” (Politics of Migration by Dr. Manju Singh, Anita Publications, Jaipur, 1990, Page 59)

3. In 1935, when the Government of India Act was promulgated, Assam was, under Section 46(1), stated to be a Governor’s province. It was in this scenario that the Foreigners Act of 1946 was enacted under which the burden of proving whether a person is or is not a foreigner lies upon such person. At the commencement of the Constitution of India, Article 5 stated that every person who has his domicile in the territory of India and who was either born in the territory of India; or either of whose parents were born in the territory of India; or who has been ordinarily resident in the territory of India for not less than 5 years immediately preceding such commencement shall be a citizen of India. As an exception, Article 6, which is important for the determination of some of the questions arising in these writ petitions, states as follows:

“Rights of citizenship of certain persons who have migrated to India from Pakistan. --Notwithstanding anything in Article 5, a person who has migrated to the 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 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

(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 therefor to such officer before the commencement of this Constitution in the form and manner prescribed by that Government: Provided that no person shall be so registered unless he has been resident in the territory of India or at least six months immediately preceding the date of his application.”

4. 19th July, 1948, therefore, became the baseline for such persons as were referred to in Article 6 for being citizens of India.

5. At this stage, the Immigrants (Expulsion from Assam) Act, 1950 was enacted to protect the indigenous inhabitants of Assam. The statement of objects and reasons of this Act says

“during the last few months a serious situation had arisen from the immigration of a very large number of East Bengal residents into Assam. Such large migration is disturbing the economy of the province, besides giving rise to a serious law and order problem. The bill seeks to confer necessary powers on the Central Government to deal with the situation.”

6. In pursuance of thi

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2014 Supreme(SC) 899

Cases Referred (11)