Paragraph numbers below are the court’s original numbering, recovered from the source text.
22. Sectio~ 5. provides for establishment of Illegal Migrants (Determination) Tribunals. Only a .person who has been a District Judge or Additional District Judge is eligible for becoming a member of the Tribunal and each Tribunal has to consist of two members. Section 9 gives the powers D of the Tribunal. Section 15 provides for establiShment of an Appellate Tribunal which shall consist or not less than two and not more than six members, as the Central Government may think fit. and only a person who is or has been_ a Judge of the High Cou_rt. is eligible to be appointed as m~m ber thereof. The Appellate Tribunal:·shall function in benches .consisting of not less than ~o members. The Meriwrandum -of Appeal shal_l .be accompanied by such fee not E being less than Rs. 25-qr.tnorethan Rs.ton; aSmay be prescribed. Section 21A. provides that it ~hall be la~ful for the police. offi:cer not below the rank of Superintendent of Polic~;.if h~ is satisfied th~t the circumstances so require, and for reasons to be recorded in writing direct any person against whom a reference or an application has been made under th.is· Act to enter into a bond F with or without sureties for making himself availa£le.Jpcinquiry.-Section 25 provides that any person who contravenes or attempts to contravene or fails to comply with any order or direction given under Section 20 or harbours any such person shall be punishable with imprisonment for a tenn which shall not be less than one year but which may extend to three years and with fine, which shall not be less than two thousand rupees. The proviso to the Section G empowers the Court to impose lesser sentence or fine for adequate and special reasons.
23. In exercise of powers conferred by Section 28 of the IMDT Act, the Central Govemmenthas made the ll\egal Migrants (Determination by Tribunals) Rules, 1984 (hereinafter referred to as 'the Rules"). Rule 2(ii) defines a H "competent authority" which means the Central· Government and includes, where a State Government or any officer subordinate to Central Government A or a State Government is empowered by notification under Section 21 to exercise and discharge the powers and duties of the Central Government under Section 8(1) and Section 8-A(l), such State Government or officer. Rule 3 requires that for the purpose of making the reference in relation to any person under Section 8(1) or Section 8-A(I) to the Tribunal, the competent authority seized of the matter shall require the Superintendent of Police. to B direct an officer not below the rank of a Sub-Inspector of Police to make an inquiry. Rules 4 to 7 lay down that the inquiry officer who has been directed to make an inquiry shall call upon that person (alleged illegal migra1_1t) to give information as regards the particulars mentioned in Form-I. He may elicit information from any other person who may be acquainted with the facts and C circumstances of the case. The details of the inquiry have to be entered day by day in a diary kept for the purpose setting forth the time at which ~ny information reached him, the time at which he began and closed his enquiry and the place or places visited by him and the statement of the circumstances ascertained through such enquiry and then he has to submit a report, in Form- II with the diary, to the immediate superior officer who shall endorse the D comqients thereon and submit it to the Screening Committee. Rule 8 provides for constitution of a Screening Committee at every sub-divisional level where the Tribunals are established and shall consist of two members, one of whom shall be Sub-divisional Magistrate and other a police. officer not below the rank of a Deputy Superintendent of Police in the sub-division concerned. The E Screening Committee after scrutiny of the information contained in Form II has to then make its recommendations to the Superintendent of Police as· to whether the person mentioned in the report is or is not an illegal migrant. Rule 9 provides that if on recommendations of the Screening Committee and such further information as the competent authority may call for, it appears to that authority that the question arises as to whether any person is or is not !an F illegal migrant, that auth~rity shall make a reference to the Tribunal for its decision thereon, along with the diary, report of inquiry officer containing the endorsement of his immediate superior officer, recommendation of the Screen~ng Committee and any other further information. So a discretion has been conferred upon the Competent Authority whether to make a reference to the Tribunal G or not. If the Competent Authority chooses not to make a reference, there is no right of appeal and the alleged illegal migrant remains untouched. He dan then safely reside in Assam. Rules 10 and 10-A provide that the application to the Tribunal under Section 8(2) shall be in Form III and to the Central Government under Section 8-A(2) in Form V. Rule 13 provides that the Superintendent of Police shall, as far as may be, follow the procedure as H A specified in :Rules 3 to'~ while making an inquiry in respect of a notice issued to him by the Ttibun;tl under Section 11 (I). Rules 14 to 19 lay down the procedure fdr fitlng apP,eals to the Appellate Tribunal which has to be in F onn IV, th~ fee ~<tbe p~j4:and als6·:,the contents of the Memorandum of Appeal etc.· T4e ~ul~s, t~~~;~W~tairt. a·rery stringent and time cons,uming procedure 8. for hbtdj?.~::~1·f[:~~~~~w,~~~iry:·:.·. · .. • . · ·.
24. In.viewof:S·cfoiion3(l)(c) of the IMDT Act, an illegal migrant is a .'·- person with respect,to. whom all the three conditions, namely, (i) has entered India on or aft,er :~Sth March, 197 I; (ii) is a foreigner which means he is not a citizen· of Indfai and' (iii) has entered India without being in possession of C a valid ·passport o{other .travel documents or any other lawful authority in this behalf, are satisfied. Therefore, if a foreigner has entered India on or after 25th March, 1971, he ·w~uld be dealt. with under the IMDT. Act, while as a foreigner wh()J1as entered any part of India including Assam before 25th March, l971_f;\yould_:be:de~lt with un9er the Foreigners Act. Section 4 of the IMDT;,\~{is''.afi.uyerr}ding.pf6\iJ~ioil<wh,ich lays down .that the IMDT Act or D the_ Rule br otd~r trta~i·iherein;·~hatl have effect notwithstanding anything contained in the Fot~ig~ers).ct, 1946 or the Immigrants· (Expulsion from Assam) Act, 1950 or:tl)~J~>issp<>rt Act or ~ny Rule or Order made thereunder.
Section 8(1) eonfers power on th~ Central Government to make a reference for its decisi~n. to the. triburial whetfiet a~y person is an illeg~l migrant or not. E This reference can also be made- or{~ representation made by an illegal migrant against any order passed against him. under the Foreigners Act not to remain in India. This.provisio~gives speciai advantage to an illegal migrant in Assam, whic~ i~J:iot avaifable to any foreigner in rest of India .. section 8(2) , provides .$~t any pets~~ n_:iay ,make an applic_ation to the Tribunal whether . .any Pe?:~Q~' ~hos~·'!\~~j~J:¥,iY~~~~11·:·t~~ }PP}ica,i!o·n, is or Is not an illegal F migrant bri!;iheJ1rovzso; to fhts:·stfb1.section' imposes a restriction that such r!- ·anappfa:at.i6'hian\~giV~n·ciniy~i,-y:~·J.I~rson Wh~iives Within the jurisdiction · of the -~a~~;;p9fi~~:~;¥!19~,::i~-~~~~Jf:~~·;~lltged illegal migrant is found or resides, Sectfon 8(3}.~mposes some·Jurthei' conditions and restrictions, namely, that the application:shaU:be ac~rimpanied by affidavits sworn by not less than two persons residihg)vithin the jurisdiction of the same police station in G which the alleg~4 ilfegaf,,inig.fant is found or is residing and a Court Fee of Rs. IO has to be pa1d~j;~ction:S~A lays- down that any person may make an application to t):te C~n\t~t-Govem~etit'f<;>r decision by a Tribunal as to whether the l'ersori .~hose·name :and .other- particulars are given in the application is — or\s nofaQ. illegar·.mig~.anc'i~ view of sub-section (2) of this Section, the H application has to be.~icompanied by a declaration by another person residing SARBANANDA SON OW AL v. U.0.1. {G.P.
MATHUR,].] ~ within the jurisdiction of the same revenue sub-divisfon in which the applicant A resides and further conditions are imposed that no person shall make more than ten such applications or more than. ten such declarations. The Central Government may, after making such inquiry, as it deeins fit, reject the application on the ground that it is frivolous or vexatfous-' In view ofthe language used in Section 14 there is no right of appeal against such J1ii'order as right bf appeal is conferred only. against an ord~r' passea by, ~h~ TribunaI::1md~r B Section 12. The order of rejectio~ 'of tlle::applicatlon ,will erture ·t()th~'benefit . •• :i. >.·~, … ·.· -.~-·· … .-.~.-~Ji!"".J" • .. :_.~· ·· … of the alleged illegal migr,ant arid there b_eing tto righLofappeal it ~;ill attai)l · finality making him safe and secure. If the CentraI°'GovetnmenLrilakes a refere~ce it will only initiate the proceedings before the Tribunal causing no immediate prejudice to the illegal migrant and if the Tribunal ultimately hol~s C against him, he will have a right of appeal to the Appellate Tribunal.
25. It is very important to note here that lMDT Act does not contain any provision similar to Section 9 of the Foreigners Act, 1946 regarding burden of proof. On the contrary it is conspicuously :silent about )t. In such circumstances a very heavy burden is cast ul}on the authorities of the State D or the applicant to establish that a person is an illegal: migrant as defined in Section 3(l)(c) of IMDTAct and is liable for deportation.
26. Rule 4 requires an inquiry officer to elicit information and particular~ from the alleged illegal migrant on the points mentioned in Form I. Itetn No.5, 10, 11, 12 of this Form are as under:- 5. Address in the country of origin (village, police station, district and country). IO. Does the person hold any passp~rt: iSsuecFby ariy' f-0reign country ? If so furnish particulars. · · ;· ; . : ' · ".' • '.. · . 11. What are the reasons for leaving.the person's country of origin ~ :~ . ''•"' :O• .; …… '· r' -… . ',J .. ~ .. : '·J ~–:· •• , .. .,:.·. ,.".'" (t·;;.., :: .. · 12. If the. person· ff as. enterj;!d into lndi~ ·~jth()\!t a· passport,. how' the 1 person·. eriiere'd · Jll(li~·~i-~.:- ;;·~-:·» '. -~ >~T~; ~ ·~·~-~;:~~.._. :~· · ·_ .·i , ·. · ·-'·'· …. ·:". ··.,> · …. ·: · .. ·. ,Q (Name of village, DistriCrfrom· which the pers.on entered). Date of entry. It is elementary that a person who has iileg~lly ·c~mdfom Bangladesh : to India and is residing here for his better eco~ortiic prospects or employment etc. would never disclose that he has come from'Bahgladesh but.would assert H – A that he is an Indian national and resides in India. There is no question of his telling his date of entry or giving any information on the aforesaid points. According to Rules 7 and 8 of the Rules, the inquiry officer has to submit a report in Form II and Item No.5, 10, 11 and 12 are exactly identical to that in Form I. Rules 10, 10-A and 10-B lay down that an application to the B Tribunal under Section 8(2) shall be made in Form III, an application to the Central Government under Section 8-A(2) shail be made in Form V and a declaration under Section 8-A(2) shall be made in Forms V and VI. Curiously enough Column No.6 of Form III requires the applicant to furnish the foliowing information regarding the alleged illegal migrant: – c (a) whether he entered India on or after 25th March, 1971; (b) date of his entry into India; (c) whether he is a foreigner; and (d) whether he entered India without bein~ in possession of a valid passport or travel document or lawful authority in that behalf. The contents of the application (form III) have to be affirmed by the applicant that what is stated in the application is true to the best of his information and belief. The application to the Central Government has to be made in Form V which contains a similar Column 6 with two further additions, namely; (i) the approximate distance between the place of residence of the applicant and the alleged illegal migrant; (ii) since when the alleged illegal migrant is staying at the said place. In Column 7 the applicant has to give details of (a) documentary; and (b) oral F evidence in his possession. The application has to be affirmed that the facts stated are true to the best of his information and belief and that he has not made more than 10 such applications. It contains a further clause to the following effect : "I am aware that in the event of this application being found as false or made with a view to cause vexation to the person named in this application or any member of his family, I am liable to be proceeded against in accordance with law for giving false evidence." Form VI which is a declaration to be made under Section 8-A(2) by another person in.corroboration of the application contains a similar affirmation H clause and also the clause quoted above regarding prosecution in the event SARBANANDA SONOWAL v. U.6.t [O:P. MATHUR, J.] the facts mentioned are found to be false .
27. To give the exact date of entry into India of a Bangladeshi national, who has illegally and surreptitiously crossed the international border, is not only difficult but virtuously impossible. A citizen doing his duty towards nation of pointing out the presence -of a Bangladeshi national !9 the authorities of the State is put under threat of·~rifJlinal prosecution, if the contents of the B application are found to be fal5e. Thi.s is bound.t~ 'have a cascading effect on citizens who will prefer to remain a .quiet sped~tor to the continued influx of illegal migrants from Bangladesh. rather . than to ·take initiative in the it detection or deportation.
28. The analysis of the provisions ~fIMDT Act arid the Rules maM C thereunder clearly demonstrate thaqhe provisions thereof a~e very stringent as compared to the provisions ofForeigners Act, 1946 or foreigners (Tribunals).· Order, 1964, in the matter of detection and deportation of illegal migrants. It is far more easier to secure conviction of a person' in a ciiminal trial where. he may be awarded a capital punishment or imprisonment for life than to D establish that a person is an illegal migrant .on account of extremely difficult, cumbersome and time consuming procedure lai'd down in the IMDT Act and the Rules made thereunder. The Act does ncit contain any provision for constitution of a screening committee which has been done under the Rules and has been conferred a very wide p~wer of rejecting complaints against·~ which no appeal lies. The figures supplied in the initial affidavit filed by the E State of Assam show that more than eighty five per cent enquiries initiated were rejected and no reference was made to the Tribunal.
Similarly, the restrictions imposed on an applicant, a citizen oflridia doing a national duty of pointing out the presence of an illegal migrant in Assam, that he should be resident of same police station or same sub-division where the illegal p migrant resides or is found does not carry any sense as these migrants keep moving. The requirement regarding application being accompanied by affidavits of two persons who are residents of same police station or being accompanied by declaration of another person who is resident of same sub-division or that not more than ten such applications can be filed or ten such declarations made do not serve any purpose except to create hurdles in .the matter of G identification and deportation of illegal migrants. Not every person feels that _ he owes a duty towards the nation and he should initiate proceedings for deportation of an illegal migrant. The applicant als9 incurs. risk to his own security and safety besides spending time and energy :in prosecuting the matter.
Similarly, there is hardly any sense in rriaking a provision for mentioning H A the time and date of visit to a place by an enquiry officer in a diary. A deep analysis of the IMDT Act and the Rules made thereunder would reveal that they have been purposely so enacted or made so as to give shelter or protection to illegal migrants who came to Assam from Bangladesh on or after 25th March, 1971 rather than to identify and deport them.
29. The learned Additional Solicitor General and Shri K.K. Venugopal have laid great stress on the submission that the IMDT Act provides a very fair procedure for detennining whether a person is an illegal migrant or not as the said question is decided by a Judicial Tribunal consisting of two members, who are or have been Additional District iudges or District Judges. C Similarly, the Appellate Tribunal consists of two members, who are or have been Judge of a High Court. The argument overlooks the fact that 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 an enquiry at the threshold by not making a reference to the Tribunal. The D figures supplied in the affidavits show that more than 85 per cent of the enquiries were rejected in this manner. It means that an order in favour of an alleged illegal migrant, which is not even appealable, ca{!. be passed by the executive but an order declaring a person to be illegal migrant must necessarily be passed by a Judicial Tribunal with a further right of appeal to the Appellate E Tribunal. This shows how one-sided the provisions of the IMDT Act are. They have been so made that they only result in giving advantage and benefits to an illegal migrant and. not for achieving the real objective of the enactment, namely, of detection and deportation of a Bangladeshi national who has illegally crossed the border on or after 25th March, 1971.
30. The State of Assam in its affidavit filed on 24.8.2000 has pointed out some practical problems..in the implementation of the IMDTAct due to which the Act has not become effective and the results are extremely poor, which are as under: – "(i) The onus of proof as illegal migrants lies on the prosecution under IMDT Act which is opposed to the Foreigners Act, 1946 under which the onus is on the suspected foreigners. (ii) There is no provision in IMDT Act for compelling the suspect ·. to furnish particulars required in Form No. I of !MDT Rules and a corresponding penal provision to deal . with such suspect in · case of their refusal to furnish information as required in Rule 5. …. -4 (ill) There is no provision for compelling suspect witness to furnish A information or statement to Police Officers making enquiries and as such taking recourse to action under Section 176 IPC is difficult in case of refusal. (iv) The Enquiry Officer is not empowered to search home/pre~ises of the suspects nor can he compel the suspects to proouce B documents to give necessary information. (v) Prosecution witnesses do not appear before the Tribuna~ for want of necessary allowances . (vi) Once the Tribunals declares a person as an illegal migrant, he/ she becomes untraceable either before the notice is served or c during the grace period of 30 days. (vii) Notice/summons issued by the Tribunals cannot easily be served due to frequent changes of address by the illegal migranis in unknown destinations. (viii) The expulsion _orders cannot be served as the illegal. migqmts, with frequent change of address, merge with the people of similar ethnic origin. (ix) It is provided in the Act that for filing complaint against a suspected person to determine as to whether he is an illegal E migrant, two persons living within the same Police Station are required to file the complaint with filing of affidavit and an amount ofRs.10.00 which was originally Rs.25.00 is to be deposited with the application. This provision of the Act puts a severe restriction in filing any complaint against an illegal migrant. (x) The Tribunals after observing a long drawn. procedure declare a F person as illegal migrant who is to be deported from India !but sue~ deportation ~ecomes very difficult as the illegal mignmts change their residence and shift to some other areas. (XI) There are instances of strong resistance to the Enquiry Officer G conducting enquiries against the illegal migrants in Char areas (riverain areas) and other locations where there is he~vy concentration of immigrant population."
31. Section 25 of the IMDT Act provides that contravention or non- compliance of any order made under Section 20 shall be punishable with H A imprisonment for a term which may not be less than one year but which may extend to three years and with fine, which shall not be less than two thousand rupees. The proviso to this section says that the Court '!lay for special ~·nci_ adequate reasons to be recorded impose the sentence of imprisonment fo~ ·a term of less than one year or a fine of less than two thousand rupees. Section 14 of the Foreigners Act (after amendment by Act No.16 _of 2004) provides B for imprisonment which may extend to five years and fine. Section 14-A and 14-B of the Foreigners Act provide punishment for a term which shall not;be less than two years but may extend to eight years and also fine whic,4 _shall not be less than ten thousand rupees but may extend to fifty thousand rupees.
Section 14-C provides the same punishment for abetment of any one C of the above offences. Thus, the punishment provided under the Fore.lgners Act is more severe than under the IMDT Act. 32 .. The foremost duty of the -Central Govemmel).t. is to ·defend the 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 D disturbance and maintain law and order. Kautilya in his masterly work "The Arthashastra" has said that a King had two responsibilities to his state, one internal and one external, for which he needed an army. One of the main responsibilities was Raksha or protection of the state from external aggression. The defence of the realm, a constant preoccupation for the king, consisted E not only of the physical defence of the kingdom but also the prevention of treachery, revolts and rebellion.
The physical defensive measures were the frontier posts to prevent the entry of undesirable aliens and forts in various parts of the country. (Arthashastra by Kautilya translated by Shri L.N. Rangarajan, who was in Indian Foreign Service and ambassador of India ip several countries published by Penguin Books 1992 Edn. page 676). The very F first entry, namely, Entry 1 of List I of the Seventh Schedule is "Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination of effective demobilization". In fact entries 1 to 4 of List I of Seventh Schedule mainly deal with armed forces. Article 355 of the Constitution G of India reads as under :- 355. Duty of the Union to protect States against'external aggression and internal disturbance.-It shall be the duty ,of the Union to protect every State against external aggression and internal disturbance and to ensure that the· Government of every State is carried on in accordance with the provisions of this Constitution." The word "aggression" is a word of very wide import. Various meanings A to the word have been given in the dictionaries, like, "an assault, an inroad, the practice of setting upon anyone; an offensive action or procedure; the practice of making attacks or encroachments; the action of a nati.on in violatin'g the rights especially the territorial rights of another nation; over_t destruction; covert hostile attitudes." The word "aggression" is not to be confused only with "war". Though war would be included within the ambit and scope of the word "aggression1' but it comprises many other acts which cannot be termed as war.
In Kawasaki v. Bant~hm S.S. Company, (I 938) 3 All ER 80, the following definition of"war'.' as given in Hall on International Law has been quoted with approval :- "When differences between States reach a point at which both partie~ resort to force, or one of them does acts of violence, which the other chooses to look upon as a breach of the peace, the relation of war is set up, in which the combatants may use regulated violence against each other, until one of the two has been brought to accept sucl~ D terms as his enemy is willing to grant." In Introduction to International Law by J.G. Starke (Chapter 18) it is said that the war in its most generally understood sense is a contest between two or more states primarily through their armed forces, the ultimate purpose of each contestant or each contestant group being to vanquish the other or E others and impose its own conditions of peace. With the passage of time, the nature of war itself has become more distinctly Clarified as a formal status of armed hostility, in which the intention of the parties, the so-called animus belligerendi may be a decisive factor. The modern war may involve not merely the armed forces of belligerent states but their entire population. In' p Essays on Modem Law of War by L.C. Green the author has said that in accordance with traditional international law, "war is- a contention between, two or more States through their armed forces, for the purpose of overpowering , each other and imposing such conditions of peace as the victor pleases.". The framers of the Constitution have consciously used the word "aggression" , and not "war" in Article 355.
33. Article I of Chapter I of the Charter of the United Nations gives the purposes of the United Nations and the first is to maintain international peace and security, and to that end : to take effective collective measures for the · prevention and removal of threats to the peace, and for the suppression of . H acts of aggression or other breaches of peace, and to bring about by peaceful A means, and in confonnity with the principles of justice and international law, adjustments or settlement of international disputes or situations which might lead to a breach of peace. On account of use of expression "acts of aggression" it was thought necessary to define "aggression" and explain what it exactly means. The International Law Commission defined the tenn "aggression" as B any act of aggression including the employment of anned forces by a State against another State for any purpose other than national or collective self- defence or any decision by a competent organ of the United Nations.
But at the 1954 Assembly, there was opposition to this definition. In his book Conflict through Consensus by Julius Stone (1977 Edn.), the author has described in great detail how after twenty years of discussion by a Special C Committee on "aggression"' a consensus was arrived at and an agreed definition was approved by the United Nations Assembly on 12th April, 1974 vide Resolution No.3314 (XXIX). The Soviet Union pressed for inclusion of "ideological aggression" and also "the promotion of the propaganda offascist- nazi views, racial and national exclusiveness, hatred and contempt for other D peoples." Iran pressed for inclusion of "indirect aggression, of intervention in another State's internal or foreign affairs", including "direct or indirect incitement to civil war, threats to internal security, and incitement to revolt by · the supply of arms or by other means.". Many States wanted the definition to include "economic aggression".
Shri M. Jaipal of India advocated that in view of "modem techniques of coercion" the definition of aggression should E have included "economic pressures" and "interventionary and subversive operations." (See page 97 of the book) Julius Stone has quoted the following comments of Charles de Visscher, on the notion of aggression : "aggression, in the present state of international relations, is not a concept that can be enclosed in any definition whatsoever : the finding that it has. occurred in any F concrete case involves political and military judgments and a subjective weighing of motives that make this in each instance a strictly individual matter." Rapporteur Spiropoulos explained to the International Law Commission that a detennination of aggression "can only be given in each concrete case in conjunction with all constitutive elements of the concept of the definition". According to the author what needs also to be kept in mind is that this is G precisely because the "aggression" notion is a fact value complex of such vast range. (See pages 108-109 of the book). Therefore, "aggression" is a word of very wide import having complex dimensions and would to a large extent depend upon fact situation and its impact.
34. There was a large scale influx of persons from the then East Pakistan H into India before the commencement of December 1971 Indo-Pak war. On 3rd November, 1971, one month before the actual commencement ofthe war, Dr. A Nagendra Singh, India's representative in the Sixth Committee of the General Assembly on the Definition of Aggression, made a statement, wherein he said:- . " ……….. , ….. The first consideration, in the view of the Indian Delegation, is that aggression must be comprehensively defined. Though precision B may be the first virtue of a good definition, we would not like to sacrifice the requirement of a comprehensive definition of aggression at any cost. There are many reasons for holding this view. Aggression can be of several kinds such as direct or indirect, armed in nature or even without the use of any arms whatsoever. There can be even C direct aggression without arms …………………………………… We would accordingly support the categorical view expressed by the distinguished delegate of Burma, the U.K. and others that a definition of aggression excluding indirect methods would b~ incomplete and therefore dangerous. •••H••• .. ••••••••••••••H•••••••••••••H•H•••••••H•••H••••••••••uo••••••••••H••••••••• .. •:•••••••••••••••••••••••H••-.. •••••••oo•••••••••••••••~•H••••• For example, there could be a unique type of bloodless aggression from a vast and incessant flow of millions of human beings forced to E ' flee into another State. If this invasion of unarmed men in totally unmanageable proportion were to not only impair the economic and political well-being of the receiving victim State but to threaten its very existence, I am afraid, Mr. Chairman, it would have to be categorized as aggression. In such a case, there may not be use of armed force across the frontier since the use of force may be tot~lly F confined within one's territorial boundary, but if this results in inundating the neighbouring State by millions of fleeing citizens of the offending State, there could be an aggression of a worst order ……………………………………….. What I wish to convey, Mr. Chairman, is the complexity of the problem which does not permit of a four-line G definition of aggression· much less an ad-interim declaration on it.'; (See Vol. l l (1971) Indian Journal oflntemational Lawp. 724) ~ This shows that the stand of our country before the U.N.O. was that influx of large number of persons from across the border into India would be H A an act of aggression.
35. In the later part of nineteenth century large number of Chinese labour had started going to U.S.A. The U.S. Congress passed legislations to restrict and then to totally stop their entry in the country. One such Chinese labourer who had earlier worked there for over ten years and had a certificate B to that effect came back after a visit to his home in China but was detained in the ship in San Francisco port. His habeas corpus petition was dismissed by the circuit court and then an appeal was taken. to U.S. Supreme Court. Certain observations made in the judgment, which is reported in 130 U.S. 581 (Chae Chan Ping v. United States), are very illuminating and are being C reproduced below: – "To preserve, its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain: these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character or from vast hordes of its people crowding in upon us. The Government, possessing the powers which are to be exercised for protection apd security, is clothed with authority to determine the occasion on i~hich the powers shall be called forth; and its determination, ·so far as the subjects affected ~re concerned, are necessarily conclusive upon all its departments and'officers. If, therefor~, th~·povernment of the United. States,through its legislative department, considers the presence of foreigners of a different race in the country, who will not assimilate with us to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the . foreigners are subjects. The existence of war would render the necessity of the proceeding only more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist and the same authority which adjudges the necessity in one case must also determine it in the other." (Emphasis supplied) China is not contiguous to U.S.A.
The journey from a port in China to San Francisco, as the facts of the case show, used to take about a month and_ H having regard to the expenses involved and the carrying capacity of a ship in those days (1870;90) the numbernfChinese labour coming to U.S.A. would t S2:-/ have been miniscule compared to the influx of people from Bangladesh. Yet A the U.S. Supreme Court viewed it as "aggression" and the presence of such foreigners as "dangerous to peace and security of the nation".
36. Lord Denning in his book "The Due Process of Law" has writteq an "Introduction" to Part Five "Entrances and Exits" (page 155) and the opening paragraph thereof reads as under : 1 B "In recent times England has been invaded – not by enemies nor by friends but by those who seek England as a haven. In their own countries there are poverty, disease and no homes. In England there, is social security a national health service and guaranteed housing all. to be had for the asking without payment and without working for it.: C Once here, each seeks to bring his relatives to join him. So they: multiply exceedingly." (Emphasis supplied): Thus, one of the most respected and learned Judges of the recent times: D has tenned 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 fonnula but will depend on the fact situation of every case. ' The definition of "aggression" as adopted by UN General Assembly ' E Resolution 3314 (XXIX) was, however, for a limited purpose, namely, whe_re the Security Council or the United Nations Organization couid 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" , F has been used in Article 355 of the Constitution.
37. The very first sentence of the Statement of Objects and Reasons of • the IMDT Act says "the influx of foreigners who illegally migrated into India across the borders of the sensitive Eastern and North-Eastern regions of the country and remained in the country poses a threat to the integrity and :G security of the said region." It further says that "continuance of these persons in India has given rise to serious problems." The Preamble of the Act says that "the continuance of such foreigners in India is detrimental to the interests of the public of India." The Governor of Assam in his report dated 8th November, 1998 sent to the President of India has clearly said that unabated H A influx of illegal migrants of Bangladesh into Assam has led to a perceptible change in the demographic pattern of the State and has reduced the Assamese people to a minority in their own State. It is a contributory factor behind the outbreak of insurgency in the State and illegal migration not only affects the people of Assam but has more dangei;ous dimensions of greatly undermining B our national security.
Pakistan's LS.I. is very active in Bangladesh supporting militants in Assam. Muslim militant organizations have mushroomed in Assam. The report also says that this can lead to the severing of the entire landmass of the north-east with all its resources from the rest of the country which will have disastrous strategic and economic consequences. The report is by a person who has held the high and responsible position of Deputy Chief of C the Army Staff and is very well equipp~d to recognize the potential danger or threat to the security of the nation by the unabated influx and continued presence of Bangladeshi nationals in India. Bangladesh is one of the world's most populous countries having very few industries. The economic prospects of the people in that country being extremely grim, they are to~ keen to cross over the border and occupy the land wherever it is possible to do so. The D report of the Governor, the affidavits and other material on record show that millions of Bangladeshi nationals have illegally crossed the international border and have occupied vast tracts of land like "Char land" barren or cultiv~ble land, forest area and have ta~en possession of the same in the State of Assam.
Their willingness to work at low wag~ has deprived Indian citizens E and specially people in Assam of employment opportunities. This, as stated in the Governor's report, has led to insurgency in Assam. Insurgency is undoubtedly a serious form of internal disturbance which causes grave threat to the life of people, creates panic situation and also hampers the growth and ecm1omi~ prosperity of the_ State of Assam though it possesses vast natural – resources. · 38. This being the situation ther_e ·can be no manner of doubt that the State of Assam is· facing "external aggression and internal disturbance" .on account of large scale illegal migration of Bangladeshi nationals. It, therefore, becomes the duty of Union of fodia to take-all measures for protection.of the G State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose. _:+;_, 39.
We have considered the provisions of the Foreigners Act;-Foreigners H (Tribunals) Order, 1964 and-also the IMDT Act and the Rules made thereunder SAR8i".\NANDA SONOWAL v. U.0.1. [G.P. MATHUR, J.) in considerable detail in the earlier part of the judgment. They clearly A demonstrate that the procedure under the Foreigners Act and also under the Foreigners (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 B person ·(oncemed 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 t~e facts on the basis of which ·an_.ppin.ion is to be formed and a decision is taken are entirely within the kno~ledge of the said person) has made the"task of tbe law enforcem~nt . .ag~nci~s of the State -not only difficult but virt_ually impossible.
The IMDT :C :_.. –…,. – .. · -~Act has been so enacted and the Rules thereunder have been so made that innumerable and unsurmountable. 9iffic~lties are created in the matter of · / identification and deportatio.n of illegal· migrants. No elaborate discussion on this aspect is required as the iig~r~}~-di~c1osed in the affidavits filed by the Union of India and the State of As$am speak for themselves. Though inquiries were initiated in 3107 59 cases under the IMDT Act but out of this only 10015 D " persons were declared as illegal migrants and fi!l~lly only 1481 illegal migrants were physically expelled upto 30th April, 2000. This comes to less than half per cent of the cases initiatedi- In, the State of West Bengal, where the , Foreigners Actis applicable, 48~Q46 persons were actually deported between .· 1983 and N_ovember 1998, which is a lesser period and even this result was :E termed as -unsatisfactory in the counter affidavit filed by the Union of India. Thus, t~ere cannot be ·even a slightest doubt that the application of the IMDT Act·and the Rules made thereunder in the State of Assam has created the -biggest hurdfe l!-,nd 'is 1he~;~ain impediment or barrier in identification and deportation of illega!.rnig'#ants. On the contrary, it is coming to the advantage of such illegal migrants as any proceedings initiated against them under the f 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 G 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 H A 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, Nagalaitd; etc. as ·the route to the said places passes through the State. of Assam. t 40. The Parliament enacted the Immigrants (Expulsion from Assam) Act, 1950 and the;Statement of Objects .and Reasons thereof read~ as under; – "Quring the.fast few months a serious · situ~tion had arisen from ~the immigration of a very Jarge number of East'.Bengal residents into Assam.
Such large '1}ign~tion is disturbing the ecpnomy of the Province, besides giving rise to a serious law and order pr-Oblem. The Bill seeks to confer necess~ry powers on the Central Go\'.ernment to deal with the situation." The Preamble to the aforesaid Act says: ~ . "An Act to provide ·for the expulsJon of certain immigrants from Assam." ·· … Section 2 of this Act lays down that if the Central Government is of opinion. that any person or class of pe~sons, having. be~n ordinarily resident . . ·t in any place outside India~ has or ~ave, whether, before or after the E commencement of this Act, come into Assam an~ ~hat the stay" of such person or class of persons in Assam. is detrimental to the interest of the general public of India or of any section thereof or of any Sl:heduled Tribe in Assam, the Central Government tnay by order direct such person or class of pers9ns to remove himself or themselves from India or Assam and give F such further direction in regard to his or their removal from India.
Proviso of this Section says that it will not apply to any person who on account of civil disturbances or the fear of such disturbances in any area now forming part of Pakistan has been displaced from his place of residence in such area and who has been subsequently residing in Assam. Section 3 confers power on Central Government to delegate the powers and duties conferred upon it by G Section 2 to any officers subordinate to the Central Government. It may be noted that the reference to the word "East Bangal" in the Statement of Objects and Reasons of the aforesaid Act, which came into force on l st March, 1950, meant.East Pakistan, which is the present Bangladesh. Realising the serious law and order problem created by migration from East Pakistan H and the serious_ situation arising therefroln. the sai~ Act was enacted andf . ' · SARBANANDASONOWALv. U.0.1. [G.P.MATHUR,J.] conferred very wide powers upon the Central Government to direct removal A of any person outside India.
However, on account of Section 4 of the IMDT Act the Immigrants (Expulsion from Assam) Act, 1950 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 presence was creating serious law and order problem, which fact had been B realized by the Central Government as early as in 1950. The IMDT Act instead of maintaining peace has only revived internal disturbance. 41. Another important enac.tment, whose provisions have been superseded by Section 4 of.the IMDT Act, is The Passport (Entry into India) C Act, 1920. Sub-section ( 1) of Section 3 of this Act conferred power upon the Central Government to make rules requiring that J1ersons entering India shall be in possession of passports and for all matters ancillary or incidental to that purpose.
Sub-section (2) of this Section says that without prejudice to the , generality of the powers conferred by sub-section (I), the rules may prohibit the entry into India or any part thereof of any person who has· not in his D possession a passport issued to him and also prescribe the authorities by whom passports must have been issued or renewed and the conditions which they must comply for the purposes of the Act. Sub-section (3) lays down that · the rules made under this Section may provide that any contravention thereof or of any order issued under the authority of any such rule shall be punishable E with imprisonment for a term which may· extend to three months or with fine or with both. Section 4 says that any officer of police not below the rank of Sub-Inspector and any officer of the customs department empowered by a general or special order of the Central Government in this behalf may arrest without warrant any person who has contravened or against whom a reasonable suspicion' exists that he has contravened any rule ~r order made under F Section 3.
Section 5 provides that the Central Government may, by general or special order, direct the removal of any person from India who, in contravention of any rule made under Section 3 prohibiting entry into India without passport, has entered therein, and thereupon any officer of the qovernment shall have all reasonable powers necessary to enforce such direction. By virtue of the G power conferred by this Act, all such nationals of Bangladesh, who have entered India without a passport, could be arrested without a warrant by a police officer not below the rank of Sub-Inspector. The Central Government also had the power t-0 direct removal of any such person who had entered India in contravention of a rule made under Section 3 prohibiting entry into India without a passport. However, Section 4 of the iMDT Act has stripped H A the Central Government of its power of removal of such person from India and also the power of arrest of such person without warrant possessed by a police officer of the rank of Sub-Inspector or above. 42.
The above discussion leads to irresistible conclusion that the provisions of the IMDT Act and the Rules made thereunder clearly negate B the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to prot~ct 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. c 43. Shri Ashok Desai, learned senior counsel appearing for the writ petitioner, has submitted that the application of the IMDT Act to the State of Assam alone is wholly discriminatory and violates Article 14 of the Constitution as the classification made is not founded upon any intelligible differentia and there -is no nexus between the basis of the classification and D the object of the IMDT Act. Reliance has been placed on a Seven Judge Bench decision of this Court in Budhan Chaudhry v. State of Bihar, AIR (1955) SC 191 and some other cases in support of this submission.
Shri Amarendra Saran, learned Additional Solicitor General and also Shri K.K. Venugopal, learned senior counsel appearing for the State of Assam, have submitted that the classification made on the basis of historical facts and/or E geographical criteria is a perfectly valid classification and the petitioner cannot complain of violation of Article 14 on the ground that the IMDT Act has been made applicable only to the State of Assam. It has been further urged that a classification made whereunder an Act is made applicable only to some of the Districts in a State or even to a part of a District on account of some p geographical consideration would be perfectly valid and would not offend Article 14 of the Constitution in any manner. In support of this submission, learned counsel have placed reliance on several decisions namely, D.P. Joshi v. State of Madhya Bharat, AIR (1955) SC 334, Kishan Singh v. State of Rajasthan AIR (1955) SC 795, Gopi Chand v. Delhi Administration AIR 1959 SC 609, Kangshari Haldar v. State of West Bengal, AIR (1960) SC 457 and G Clarence Pais v. Union of India, [2001] 4 sec 325.
We do' not consider it necessary to refer to all the cases cited by learned counsel for the parties as the principle enunciated therein is basically the same and it will suffice to refer to only one such decision, namely, Kan gs hart Haldar (supra), where Gajendragadkar, J. (as His Lordship then was) held as under : "In considering the validity of the impugned statute on the ground SARBANANDASONOWALv. U.0.1. [G.P.MATHUR,J.] that it violates Article 14 it would first be necessary to ascertain the A policy underlying the statute and the object intended to be achieved by it. In this process the preamble to the Act and its material provisions can and must be considered. Having thus ascertained the policy and the object of the Act the court should apply the dual test in examining its validity: Is the classification rational and based on intelligible B differentia; and, has the basis of differentiation any rational nexus with its avowed policy and object? If both these tests are satisfied, the statute must be held to be valid; and in such a case the consideration as to whether the same result could not have been better achieved by adopting a different classification would be foreign to the scope of the judicial enquiry. If either of the two tests is not C satisfied, the statute must be struck down as violative of Article 14." 44.
Section 8(1) of the IMDT Act says that if any question arises as to whether any person is or is not an illegal migrant, the Central Government may, whether such question has ar!sen on a representation made by such person against an order under the Foreigners Act, 1946 requiring him not to D remain in India or to any other effect or has arisen in any other manner whatsoever, refer such question. to a Tribunal for decision. This provision gives very special and advantageous right to an illegal migrant. Even though an order may have been passed under the Foreigners Act against an illegal migrant, he gets a right to mak~ a representation to the Central Government for making a reference to the Tfib'~nal, which wili'then proceed in accordance E with IMDT Act having a furth~r ~ight 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 is not available to any other person similarly situate against whom an order under the Foreigners Act may F have been passed, if he is in any other part of India other than the State of Assam. 45. As mentioned earlier, the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of north-eastern region. Their presence has changed the demographic character G 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 ertacted a legislation exclusively for the State of Assam which 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 H A from the territory of present Bangladesh between lst 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 classification cannot be sustained where the Act instead of achieving the B object of the legislation defeats the very purpose for which the legislation has been made. As discussed earlier, the provisions of the Foreigners Act are far more effective in identification and deportation of foreigners who have illegally crossed the international border and have entered India without any authority of law and have no authority to continue to remain in India. For satisfying the test of Article 14, the geographical factor alone in making a classification C is not enough but there must be a nexus with the objects sought to be achieved. If geographical consideration becomes the sole criteria completely overlooking the other aspect of "rational nexus with the policy and object of the Act" it would be open to the legislature to apply enactments made by it to any sub-division or district within the State and leaving others at its sweet D will.
This is not the underlying spirit or the legal principle on which Article 14 is founded. Since the classification made whereby IMDT Act is made applicable only to the ~tate 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. 46. Shri Ashok Desai, learned senior counsel for the petitioner has also urged that the reports of the Governor and also the earlier counter affidavits filed by Union of India and State of Assam show that the w.hole demographic pattern of the State of Assam has undergone a change and the local people of Assam have been reduced to a minority in their own State on account of large influx of illegal migrants from Bangladesh. According to learned counsel, F this amounts to violation of the rights guaranteed under Article 29(1) of the Constitution as the people of Assam have a fundamental right to conserve their language, script or culture.
Undoubtedly, Article 29(1) confers a fundamental right on all sections of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its G own to conserve the same and any invasion of this right would be ultra vires. The enforcement of the IMDT Act has no doubt facilitated to a very large extent the illegal migrants from Bangladesh to co~tinue to reside in Assam, who on account of their huge number affect the language, script and .culture of the local people. However, we do not wish to express any concluded opinion whether on the fact situation the IMDT Act can be thus said to be H violating Article 29(1) of the Constitution as the necessary factual basis for i SARBANANDA SONOWAL v. U.0.I. [G.P. MATHUR, J.] determination of this question has not been laid in the pleadings. 47. Shri Shanti Bhushan, learned senior counsel for the petitioners irt Writ Petition No.7 of2001 (Jamiat Ulma-E-Hind and Anr. v. Union of India & Anr. ), wherein a prayer has been made to issue a direction to Union of India: that the IMDT Act should be made applicable to whole of India, requested that he may be heard on the question of vires of the IMDT Act, as the B decision on the said point will have a serious impact on the writ petition i~ which he is appearing as counsel.· We have; therefore,.-heard Shri Shanti Bhushan on the limited point regarding the constitutional validity of the IMDT Act.
Learned counsel has submitted that though some of the Articles in_ Part III of the Constitution dealing with fundamental rights like Article C 19(1)(d) and (e) would not apply to a foreigner, yet he is entitled to the; protection of Article 21 as the application of the said Article is not confined to citizens alone. Learned counsel has submitted that in view of the clear mandate of Article 21 that no person shall be deprived of his life or personai: liberty except according to procedure established by law, there has to be al fair procedure for expulsion of foreigners. According to the learned counsel, 1 D the IMDT'2'\ct lays down a fair procedure, namely determination by ajudicia\! Tribunal of the question of citizenship of a person and his deportation. It has thus been submitted that the IMDT Act which seeks to achieve this object' meets the requirements of Article 21 of the Constitution and thus its validity ' cannot be impugned.
The learned Additional Solicitor General and Shri K.K. ! E Venugopal, during the course of their arguments, have also laid great stress I on the fact that the IMDT Act has been enacted to give protection to genuine ' Indian citizens and to save their harassment. It is not possible to accept the submission made. The view taken by this I Court is that in a criminal trial where a person is prosecuted and punished 1_ p for commission of a crime and may thus be deprived of his life or liberty, it: is not enough that he 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 i reason that in the matter of identification of a foreigner and his deportation, : he is not being deprived of his life or personal liberty. The deportation 1 G 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 1st January, 1966 and 24th March, i 971 in view of the language !JSed in Section 6-A of : H A Citizenship Act. It is, therefore, not open to Union of India 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 9f Article 21 of the Constitution. In our opinion, th~ procedure under the Foreigners Act and the Foreigners (Tribunals) Order, 1964 is just, fair and B reasonable and does not offend any constitutional provision. 48. ··we consider it necessary here to briefly notice the.law regarding deportation of aliens as there appears to be some misconception about it and it has been argued with some vehemence that aliens also possess several rights and the procedure for their identification and deportation should be C detailed and elaborate in order to ensure fairness to them. 49.
In Introduction to International Law by J.G. Starke (1st Indian re- print 1994) in Chapter 12 (page 348), the law on the points has been stated thus: – "Most states claim in legal theory to exclude all aliens at will, affirming that such unqualified right is an essential attribute of soverign government. The courts of Great Britain and the United States have laid it down that the right to exclude aliens at will is an incident of territorfal sovereignty. Unless bound by an international treaty to the contrary, states are not subject to a duty under international law to admit aliens or any duty thereunder not to expel them. Nor does international law impose any duty as to the period of stay of an admitted alien." Like the power to refuse admission this is regarded as an incident of the State's territorial sovereignty. International law does not prohibit the expulsion F enmasse of aliens. (page 351).
Reference has also been made to Article B of the International Covenant of 1966 on Civil and Political Rights which provides that an alien lawfully in the territory of a State party to the Covenant may be expelled only pursuant to a decision reached by law, and except where compelling reasons of national security otherwise require, is to be allowed to G submit the reasons against his expulsion and to have his case reviewed by and to be represented for the purpose before the competent authority. It is important to note that this Covenant of 1966 would apply provided an alien is lawfully in India, namely, with valid passport, visa etc. and not to those who have entered illegally or unlawfully. Similar view has been expressed in · Oppenheim's International Law (Ninth Edn. 1992 in paragraphs 400, 401 and H 413). The author has said that the reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy, competent to exclude A aliens from the whole or any part of its territory.
In paragraph 413 it is said that the right of States to expel aliens is generally recognized. It matters not whether the alien is only on a temporary visit, or has settled down for professional business or any other purposes on its territory, having established his domicile there. A belligerent may consider it convenient to expel all hostile: nationals residing or temporarily staying within its territory; although such a; B measure may be very harsh on individual aliens, it is generally accepted that. such expulsion is justifiable. Having regard to Article 13 of the International : Covenant-on Civil and Political Rights, 1966, an alien lawfully in a State's: territory may be expelled only in pursuance of a decision reached in accordance c 50. In Rex v. Bottrill, (1947) 1 K.B. 41, it was said that the King under the Constitution of United Kingdom is under no db ligation to admit into the ! country or to retain there when admitted, any alien.
Every alien in the United Kingdom is there only because his presence has been licensed by the King. . It follows that at common law the King can at will withdraw his license and l D cause the Executive to expel the alien, whether enemy or friend. For holding ·so reliance was placed on Attorney-Genera/for Canada v. Cain, (1906) AC 542, where Lord Atkinson said: – "One of the rights possessed by the Supreme power in every state- is the right to refuse to pennit an alien to enter that state, to annex E what conditions it pleases to the permission to enter it, and to expel or deport from the state, at pleasure, even a friendly alien, especially if it considers his presence in the state opposed to its peace, order, and good government, or to its sqcial or material interests." In Chae Chan Ping v. United States, (1930) U.S. 581, the United State ,F Supreme Court held : "The po\Ver of exclusion of foreigners being an incident of sovereignty belonging to the Government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the Government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers of Government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations B c of private interest. The exercise of these pnblic trusts is not the subject of barter or contract." This principle was reiterated in Fong Yue Tingv,.
United States 149 U.S. 698, where the court ruled: – "The government of each· state has. always the right to compel foreigners who are found within its territory to go away, by having them taken to the frontier. This right is based on the fact that, the foreigner not making part of the nation, his individual reception into the territory is matter of pure permission, of simple tolerance, and creates no obligation. The exercise of this right may be subjected,· doubtless, to certain· forms by the domestic laws of each country;· but the right exists none the less, universally ,recognized and put in force." "The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is. often applied to the expulsion ofa citizen from his country by way of punishment. It is but a method of enforcing the retµrn to his own country of an alien who has not complied with the conditions upon the performance of which .; ·the government of the nation, acting within its corstitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty or property, without due process of law; and the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application." 51.
In Nishimura Ekiu v. United States, 142 US 652, it was adjudged that, although Congress might, if it saw fit, authorize the courts to investigate and ascertain the facts upon which the alien's right to land was made by the statutes to depend, yet Congress might entrust the final determination of G those facts to an executive officer, and that, if it did so, his order was due process of law and no other tribunal, unless expressly authorized by law to do so, was at liberty to re-examine the evidence on which he acted, or to controvert its sufficiency. Thus according to United States Supreme Court the determination of rights of an alien even by Executive will be in compliance H of due process of law. 52. In Louis De Raedt v. Union of India, (1991] 3 SCC 554 the two A . foreign nationals engaged in missi<mary work had come to India in 1937 and 1948 respectively with proper documents like passport and visa etc. and wer;e continuously living here but by the order dated 8th July, 1987 their prayer for further extension of the period of stay was rejected and they were asked to leave the country by 31st July, 1987.
They then challenged the order by filing a writ petition. This Court held that the power of the Government of India to B expel foreigners is absolute and unlimited and there is no provision in thb Constitution fettering its discretion and the executive government ha~ unrestricted right to expel a foreigner. So far as right to be heard is concerned1 there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case. 1 C 53. In State of Arunachal Pradesh v. Khudi Ram Chakma, (1994) Supp SCC 615, following Louis De Raedt (supra), it was held that the fundamental right of a foreigner is confined to Article 21 for life and liberty and does not include the right to reside and stay in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of the country. After referring D to some well-known and authoritative books on International Law it was observed that the persons who reside in the territories of countries of which\ .. they are not pationals, possess a special stat\,Js under International Law.
States reserve the right to expel them from their territory and to refuse to grant them certain rights which are enjoyed by their own nationals like right to vote,' E hold public office or to engage in political activities. Aliens may be debarred from joining the civil services or certain profession or from owning some properties and the State may place them under restrictions in the interest of' national security or public order. Nevertheless, once lawfully admitted to a, territory, they are entitled to certain immediate rights necessary to the . enjoyment of ordinary private life. Thus, the Bangladeshi nationals who have ! F 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 India and they are liable tQ_ be deported. 54. The learned Additional Solicitor General has also submitted that the vires of.a special statute seeking to make some provisions or some defined 1 G object cannot be challenged by comparing its provisions with .a general statute covering the field.
In support ,of this proposition he has placed reliance on In re The Special Courts Bill, (1978) AIR (1979) SC 478 and A.R. ' Antulay v. R.S. Nayak, AIR (1988) SC 1531. In the former case, it was held that once a classification is upheld by the application of the dual test, ,H A subjection of harsher treatment or disadvantageous procedure loses its relevance, the reason being that for the purposes of Article 14 unequafs cannot complain of unequal treatment. In our opinion, the proposition urged by the learned Additional Solicit9r General has no 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 safegµards to B 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 regions of the country and have remained in the country, pose a threat to the integrit)t and security of C the said region and further their continuance in lndia 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 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 D 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 the object sdught tg be achieved and, therefore, the classification made for application of IMDT Act E to tJ:ie State of Assam violates Article 14 and is consequently liable to be struck down. 55. Shri K.K. Venugopal has submitted that Section 8 of the IMDT Act is similar to Section 9 of the Citizenship Act and, therefore, the same· interpretation should be placed upon Section 8. In our opinion it is not F possible to accept such a contention. 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. We are concerned here with identification and deportation of such Bangladeshi nationals who have illegally crossed the international border and have taken up residence in Assam. The G question of loss of Indian citizenship on account of acquisition of citizenship of another country does not at all arise for consideration here. 56. The learned Additional Solicitor General has submitted that the present writ petition has been filed by way of public interest litigation and H seeks to achieve a political purpose. I.t is urged that the petitioner Shri SARBANANDASONOWAL v. U.0.1. [G.P. MATHUR, J.) Sarbananda Sonowal was earlier an MLA of Assam Gana Parishad party and A is now a Member of Parliament and what his party could not achieve politically, he wants to achieve by means of this public interest litigation. lt is urged that as held in S.P.
Gupta v. Union of India, (198IJSupp. SCC 87 and some other -cases that a public interest litigation cannot be entertained where its object is to attain a political purpose, the present petition is liable to be dismissed. B Shri K.K. Venugopal, learned senior counsel for the State of Assam, has in addition submitted that no fundamental right of the petitioner has, been violated and, therefore, the present petition under Article 32 of the Constitution is not maintainable. We are unable to accept the submission made. It is the foremost duty of the Central Government to protect its borders and prevent trespass by foreign nationals. Article 51-A( d) of the Constitution says that C it shall be the duty of every citizen of India 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 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 fotice of the Court by filing a writ petition under Article 32 of the D Constitution.
There are any number of instances where such writ petitions have been entertained by this Court at the instance of citizens who were not themselves personally aggrieved in the sense that there was no direct invasion of their own fundamental right. In Dr. D.C. Wadhwa v. State of Bihar, AIR (I 987) SC 579, the petitioner had filed writ petition under Article 32 of the E Constitution challenging the action of the Governor ofBihar in promulgating ordinances from time to time under Article 213 of Constitution of India without getting them replaced by Acts of the Legislature. The Constitution Bench held that the petitioner has sufficient interest to maintain a petition under Article 32 even as a member of the public because it is the right of every citizen to insist that he should be governed by laws made in accordance F with the Constitution and not law made by the executive in violation of the constitutional provisions.
It was also held that if any particular ordinance was being challenged by the petitioner he may not have the locus standi to challenge it simply as a member of the public unless some legal right or interest of his is violated or threatened by such ordinance, but here what G petitioner as a member of the public was complaining of is a practice which is being followed by the State of Bihar of repromulgting the ordinances from time to time \Vithout their provisions being enacted into Acts of the Legislature. The Court ruled that the petition had been filed for vindication of public interest and he must therefore be held to be entitled .to maintain his writ A petitions. In R.K. Garg v. Uniowof India, AIR 1981 SC 2138 the constitutional validity of Special Bearer Bonds (Immunities and Exemptions) Ordinance and — the Act of 1981 was challenged by Shri R.K. Garg, a senior advocate of Supreme Court, by filing a writ petition under Article 32 of Constitution, which was entertained and the validitY of the Act was examined in great detail.
B Recently this Court entertained a petition under Article 32 of the Constitution at the instance of Prof. Yashpal, former Chairman of University Grants Commission by. way of Public Interest Litigation and struck down the Act made by Chhattisgarh Legislature which enabled 112 Private Universities to be established; having no infrastructure whatsoever within a short span of two years. (See JT (2005) 2 SC 165) c 57. To sum up our conclusions, the provisfons of the Illegal Migrants (Determination by Tribunals) Act, 1983 are ultra vires the Constitution of India and are accordingly. struck down. The Illegal Migrants (Determination by Tribunals) Rules, 1984 are a.l~o ultra vires and are struck down. As a result, the Tribunals and the Appellate Tribunals constituted under the Illegal D Migrants (Determination by Tribunals) Act, 1983 shall cease to function. The Passport (Entry into India) Act, 1920, the Foreigners Act, 1946, 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 E 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. In view of the finding that the competent authority and the Screening Committee had no authority or jurisdiction to reject any proceedings initiated against any alleged illegal migrant, the orders of-rejection passed by F such authorities are declared to be void and non est in the eye of law. 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 under the Illegal Migrants (Determination by Tribunals) Act, 1983 by the competent authority G 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 to have abated. 58. In view of the di~cussion made above, the writ petition succeeds and is allowed with the following directions : ——-.._ (I) The provisions of the Illegal Migrants (Determination. by A 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 B ce~e 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 c 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 D .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 E Tribunals under the Foreigners (TribuQals) Order; 1964 to effectively deal with cases of foreigners, who have illegally come from Bangladesh or are illegally residing in Assam.· S9. All the Interlocutory Applications are disposed of in terms of the above order. . K.K.T. Petition allowed .