Foreigners Tribunal procedure: arbitrary Assam exclusion and burden-shifting safeguards under the 2006 order were struck down.

Assam was unlawfully excluded from the 1964 Foreigners Tribunal regime, because a subordinate order cannot create an arbitrary territorial exception or defeat binding judicial directions; the exclusion was held discriminatory and violative of Articles 14 and 355. The 2006 procedure was also invalid because it required prima facie establishment of basic facts before reference and notice, which conflicted with the Foreigners Act, 1946 by shifting the initial evidentiary burden away from the person proceeded against. The impugned order was quashed, and implementation of the 1964 Order was reaffirmed.

---

---

Issues: (i) whether the Foreigners (Tribunal) Amendment Order, 2006 and the Foreigners (Tribunal) for Assam Order, 2006 were invalid for making the Foreigners (Tribunals) Order, 1964 inapplicable to the State of Assam; (ii) whether the procedure introduced by the 2006 Order, including the requirement that basic facts be prima facie established before reference and notice, was inconsistent with the statutory scheme and constitutionally impermissible.

Issue (i): whether the Foreigners (Tribunal) Amendment Order, 2006 and the Foreigners (Tribunal) for Assam Order, 2006 were invalid for making the Foreigners (Tribunals) Order, 1964 inapplicable to the State of Assam.

Analysis: The exclusion of Assam alone from the operation of the 1964 Order created a separate regime without rational justification. The reasons advanced for the exclusion were not supported by facts, and the measure had the effect of defeating earlier binding directions requiring implementation of the 1964 Order in Assam. A subordinate legislative measure cannot be used to nullify the effect of a judicial mandate or to create an arbitrary territorial classification that has no rational nexus with the object of the law.

Conclusion: The exclusion of Assam was held to be discriminatory, arbitrary, and violative of Articles 14 and 355 of the Constitution of India, and the impugned amendment was struck down.

Issue (ii): whether the procedure introduced by the 2006 Order, including the requirement that basic facts be prima facie established before reference and notice, was inconsistent with the statutory scheme and constitutionally impermissible.

Analysis: The Court held that the Foreigners Act, 1946 places the burden of proof on the person proceeded against, and that the 1964 Order and the statutory scheme already provided a fair procedure. By requiring the Tribunal to ensure that basic facts were prima facie established before proceeding, the 2006 Order shifted the initial evidentiary burden in a manner inconsistent with Section 9 of the Foreigners Act, 1946. The Order also could not dilute the statutory burden of proof or weaken the machinery for identifying foreigners, especially in light of the constitutional obligation under Article 355.

Conclusion: The procedure introduced by the 2006 Order was held to be unreasonable, arbitrary, and contrary to the statutory framework and constitutional obligations.

Final Conclusion: The writ petitions were allowed, the 2006 Order was quashed, and the earlier directions requiring implementation of the 1964 Order were reaffirmed and directed to be carried out.

Ratio Decidendi: A subordinate legislative order cannot override a binding judicial mandate or create an arbitrary territorial exception to a statutory procedure, and any procedure for determining foreigner status must conform to the parent Act, preserve the statutory burden of proof, and satisfy constitutional requirements of non-arbitrariness and equality.

---