TaxTMI 
TaxTMI 
2005 (7) TMI 654
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.... in the writ petition is that the petitioner is a citizen of India and is ordinarily resident in the State of Assam. He is a former President of the All Assam Students Union, which is the largest non-political students organization in the State which was responsible for leading the students movement in Assam in the late 1970s and early 1980s. He is also a former Chairman of the North East Students' Organisation, which is an umbrella organization of students' association from Assam, Meghalaya, Manipur, Nagaland, Tripura and Arunachal Pradesh and has been actively involved in issues concerning the rights of the people of Assam including the question of illegal migrants settled in the said State. The issues raised in the writ petition concern all residents in the State of Assam whose rights as citizens of India have been materially and gravely prejudiced by the operation of the Illegal Migrants (Determination by Tribunals) Act, 1983 (hereinafter referred to as "the IMDT Act"). The principal grievance of the petitioner is that the IMDT Act is wholly arbitrary, unreasonable and discriminates against a class of citizens of India, making it impossible for citizens who are resident....
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....he Accord further provided that foreigners who have entered into India after 25th March, 1971 will continue to be detected, their names deleted from the electoral rolls and they will be deported from India. In pursuance of this provision, the Citizenship Act, 1955 was amended by Act No.65 of 1985 and Section 6A was inserted with the heading "Special Provisions as to Citizenship of Persons covered by the Assam Accord." It provides that the term "detected to be a foreigner" shall mean so detected under the Foreigners Act and the Foreigners (Tribunals) Order, 1964 framed thereunder. Under the said provision a person of Indian origin as defined under Section 6-A(3) who entered into Assam prior to 1st January, 1966 and has been resident in Assam since then is deemed to be a citizen of India. However, if such a person entered into Assam between 1st January, 1966 and before 25th March, 1971 and has been detected to be a foreigner under the Foreigners Act then he is not entitled to be included in the electoral list for a period of 10 years from the date of detection. This amendment of the Citizenship Act makes it clear that the question of determination or detection of a foreigner is to be....
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.... of the meetings have been filed along with the writ petition. The difficulties created by the provisions of the IMDT Act due to which it has become extremely difficult to identify an illegal migrant and pass a deportation order have also been enumerated in detail. Figures regarding the inquiries initiated since the enforcement of the Act in 1983 and total number of illegal migrants expelled have been given to which we will refer to later on. It is also pleaded that a huge number of Bangladesh nationals who have crossed over to India, have occupied vast tracts of land in sensitive international border which has very serious implication for national security. 4. The Union of India filed a counter affidavit on 18th July, 2000, which has been sworn by Shri Jatinder Bir Singh, Director, Ministry of Home Affairs. In paragraph 7 of this affidavit, it was stated that a proposal to repeal the IMDT Act is under consideration of Government of India. A copy of the reply given by Shri I.D. Swami, Minister of State in the Ministry of Home Affairs in the Rajya Sabha on 8th March, 2000 has been filed as Annexure R-2 to the counter affidavit, wherein the Minister had said that in the State of Ass....
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.... corridor to migrate to other parts of the country. 5. The large-scale influx of illegal Bangladesh immigrants has led to large tracts of sensitive international borders being occupied by foreigners. This has serious implications for internal security. 6. The types of illegal migrants are as follows: - a) those who came with valid visa/documents and overstayed; b) those who came with forged visa/documents; and c) those who entered surreptitiously. 7. During talks between the Prime Ministers of India and Bangladesh in February, 1972, the Prime Minister of Bangladesh had assured the return of all Bangladesh nationals who had taken shelter in India since March 25, 1971. Accordingly a circular was issued by the Government of India on 30.9.1972 setting out guidelines for action to be taken in respect of persons who had come to India from Bangladesh. According to this circular, those Bangladesh nationals who had come to India before 25 March 1971 were not to be sent back and those who entered India in or after the said date were to be repatriated." In paragraph 12 of the counter affidavit it is stated that "the basic objection of the petitioner is under consideration of the ....
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....nst national interest inasmuch as in view of the stringent provisions in the IMDT Act regarding detection and deportation of foreigners, the illegal migrants whose presence are in lakhs in the State of Assam could not be deported. The State Government has thus been insisting upon the Central Government for repeal of the IMDT Act. On account of unabated influx of illegal migrants from Bangladesh, a widespread movement started in Assam spearheaded by All Assam Students' Union (AASU) in the year 1978-79 demanding expulsion of such illegal migrants from Assam which as contended by the agitationists, not only threatened their own existence in their own State but also threatened security of the country. Large scale satyagrah, bandhs, dharnas, etc. were organized by AASU and All Assam Gana Sangram Parishad and the agitation got mass support from the people. After several rounds of discussion, a memorandum of settlement known as Assam Accord was signed on 15th August, 1985 which, amongst others, envisaged the provision for detection and deletion of name of foreigners from the electoral roll and also their deportation. Paragraph 8 of the counter affidavit, which has a bearing on the con....
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....that the IMDT Act is an ineffective piece of legislation and it is standing in the way of detection and deletion of post 1971 foreigners in Assam and, therefore, the same should be repealed. 6. However, on 8th August, 2001, the State of Assam moved I.A. No.5 of 2001 praying that the State of Assam be permitted to withdraw the earlier affidavit filed on 28th August, 2000 and seeking permission to place on record a new affidavit. In this affidavit it is averred that general elections were held in the State of Assam in May 2001 wherein the Congress government had come to power replacing the government headed by Assam Gana Parishad. The State Government in its Cabinet meeting held on 28th June, 2001 had reviewed the earlier affidavit and had obtained a legal opinion in the matter. It is further averred that "the affidavit filed by the former AGP led government does not reflect the correct position of law and hence a new affidavit is required to be filed. The State Government is of the opinion that the IMDT Act is constitutional and there is no question of either repeal or striking down of the Act." It is also averred that in the election manifesto of the Indian National Congress in th....
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.... the matter of constitutional validity of the IMDT Act does not depend on political issues, but depends on facts and legal grounds. The relevant part of the opening part of the affidavit which has some relevance is being reproduced below :- "In this context, it is submitted that detection of illegal migrants, who belong to the same ethnic stock as Indians is not an easy task. However, large-scale illegal migrants from Bangladesh have not only threatened the demographic structure of the area but have seriously impaired the security of the nation, particularly in the present circumstances. The need for expeditious identification of illegal migrants is more pressing now than ever. It is not a matter of dealing with a religious or linguistic group. It is a question of identifying those who illegally crossed over the border and continue to live in India contrary to the Indian law and the Constitution. The facts and figures which have been stated by the Union of India in its affidavit filed in the case titled "Jamiat Ulama-E-Hind & Another vs. Union of India and others Writ Petition (Civil) No. 7 of 2001" clearly indicate that it is the existence of the IMDT Act, which has been t....
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....te of Assam when the provisions of the Foreigners Act, 1946 are quite effective for detection and deportation of illegal migrants (foreigners) which is applicable to the rest of the country. Lastly, it is prayed that the constitutional validity of the IMDT Act may be examined in the light and background of the above facts. 9. The petitioner has also filed a reply to the additional affidavit filed on behalf of the State of Assam, where besides reiterating his earlier pleas, it is averred that the Indian National Congress representatives from North East have themselves alluded to the problem of illegal migration in the past. Reference is made to a report of the General Secretaries to the Seventh General Conference of the North-Eastern Congress (I) Co-Ordination Committee dated 3rd July, 1992 wherein it was recorded as under :- "20.1 There are infiltrations though it is a difficult task to examine the precise number. 20.2 The infiltrations are not only by minorities of Bangladesh but also from the majority Muslims. In absolute terms, the number of Muslims crossing into India is likely to be much larger than that of non-Muslims. 20.3 An ideological support is given to the ....
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....5 cases and 376341 inquiries were referred to the Screening Committee. Out of these 87222 cases were referred to Tribunals for opinion and 12180 persons were declared as illegal migrants. This, according to the affidavit, shows that but for the element of judicial scrutiny thousands of Indians would have been deported. It is further averred that as on 31st March, 2004, 519391 number of inquiries were completed by the Tribunals under the Foreigners Act to detect those foreigners who came into Assam during the period 1st January, 1966 to 24th March, 1971 and 29189 persons were declared as foreigners and their names were deleted from the electoral rolls. This shows that the results obtained under the IMDT Act and the Foreigners Act were more or less comparable. Besides above, the details of the fencing work and construction of roads done at the border have also been given. 11. In I.A. No.6 of 2004, the copy of the memorandum submitted before the Parliamentary Standing Committee of Home Affairs on "The Illegal Migrants Laws (Replacing & Amending) Bill, 2003" on behalf of Government of Assam has been filed, which contains the figures regarding inquiries conducted upto 31st August, 2003....
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....ry. Zulfikar Ali Bhutto in his book "Myths of Independence" wrote "It would be wrong that Kashmir is the only dispute that divides India and Pakistan, though undoubtedly the most significant. One at least is nearly as important as the Kashmir dispute, that of Assam and some districts of India adjacent to East Pakistan. To these Pakistan has very good claims". Even a pro-India leader like Sheikh Mujibur Rahman in his book "Eastern Pakistan; its population & economics" observed, "Because Eastern Pakistan must have sufficient land for its expansion and because Assam has abundant forests and mineral resources, coal, petroleum etc., Eastern Pakistan must include Assam to be financially and economically strong. CONTRIBUTORY FACTORS 10. Besides the above considerations, there are other contributory factors facilitating infiltration from Bangladesh. Ethnic, linguistic and religious commonality between the illegal migrants and many people on our side of the border enables them to find shelter. It makes their detection difficult. Some political parties have been encouraging and even helping illegal migration with a view to building vote banks. These immigrants are hardworking and are....
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....8 and one district Morigaon is fast approaching this position. 20. The growth of Muslim population has been emphasized in the previous paragraph to indicate the extent of illegal migration from Bangladesh to Assam because as stated earlier, the illegal migrants coming into India after 1971 have been almost exclusively Muslims. 21. Pakistan's ISI has been active in Bangladesh supporting militant movement in Assam. Muslim militant organization have mushroomed in Assam and there are reports of some 50 Assamese Muslim youths having gone for training to Afghanistan and Kashmir. CONSEQUENCES 22. The dangerous consequences of large scale illegal migration from Bangladesh, both for the people of Assam and more for the Nation as a whole, need to be emphatically stressed. No misconceived and mistaken notions of secularism should be allowed to come in the way of doing so. 23. As a result of population movement from Bangladesh, the spectre looms large of the indigenous people of Assam being reduced to a minority in their home State. Their cultural survival will be in jeopardy, their political control will be a weakened and their employment opportunities will be undermined. 24. The si....
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....ional agreements, national commitments and humanitarian considerations, it has been decided to proceed as follows: - Foreigners Issue 5.1 For purposes of detection and deletion of foreigners, 1.1.1966 shall be the base date and year. 5.2 All persons who came to Assam prior to 1.1.1966, including those amongst them whose names appeared on the electoral rolls used in 1967 elections, shall be regularized. 5.3 Foreigners who came to Assam after 1.1.1966 (inclusive) and up to 24th March 1971 shall be detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order 1964. 5.4 Names of foreigners so detected will be deleted from the electoral rolls in force. Such persons will be required to register themselves before the Registration Office of the respective districts in accordance with the provisions of the Registration of Foreigners Act, 1939 and the Registration of Foreigners Rules, 1939. 5.5 For this purpose, Govt. of India will undertake suitable strengthening of the governmental machinery. 5.6 On the expiry of a period of ten years following the date of detection, the names of all such persons which have been deleted from the electoral....
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....) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and (b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and (c) has been detected to be a foreigner; shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (hereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom. Explanation In the case of every person seeking registration under this sub-section, the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such person to be a foreigner, shall be deemed to be sufficient proof of the requirement under clause ) of this sub-section and if any question arises as to whether such person complies with any other requirement under this Sub-section, the registering authority shall: - (i) if such opinion contains a finding with r....
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.... domain of judiciary. 14. Before adverting to the provisions of the IMDT Act, it is necessary to have a brief look at the enactments made for dealing with foreigners. The first enactment governing the foreigners was the Foreigners Act, 1864, which provided for the expulsion of foreigners and their apprehension, detention pending removal and for a ban on their entry into India after removal. The situation created by the Second World War led to promulgation of Foreigners Ordinance in 1939 which was replaced by Foreigners Act, 1940. Section 7 of this Act read as under :- "Burden of proof If any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872, lie upon such person." The legislature then enacted the Foreigners Act, 1946 which repealed the 1940 Act. Section 2(a) of this Act defines a "foreigner" and it means a person....
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....ll not be less than two years but may extend to eight years. Section 14C provides for some punishment for abetment of offences under Section 14A or 14B. Section 9 of this Act is important and it reads as under :- "9. Burden of proof If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person." This Act confers wide ranging powers to deal with all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner for prohibiting, regulating or restricting their or his entry into India or their presence or continued presence including his arrest, detention and confinement. The most important provision is Section 9 which casts the burden of proving that a person is not a foreigner or is not a foreigner of suc....
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....t needs to be emphasized that the general rule in the leading democracies of the world is that where a person claims to be a citizen of a particular country, the burden is upon him to prove that he is a citizen of that country. In United Kingdom, the relevant provision is contained in the Immigration Act, 1971 and sub-Section (1), (8) and (9) of Section 3 thereof read as under : "3. General provisions for regulation and control. (1) Except as otherwise provided by or under this Act, where a person is not a British citizen (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under this Act; (b) he may be given leave to enter the United Kingdom (or when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given a limited leave to enter or remain in the United Kingdom, it may be given subject to conditions restricting his employment or occupation in the United Kingdom, or requiring him to register with the police, or both. xxx xxx xxx xxx (8) When any question arises under this Act whether or not a person is a British ci....
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....s. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 18. Though in a criminal case the general rule is that the burden of proof is on the prosecution but if any fact is especially within the knowledge of the accused, he has to lead evidence to prove the said fact. In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404 it was held as follows: "Section 106 is an exception to S. 101. The latter with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and S. 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre- eminently or exceptionally within his knowledge." In Collector of Customs, Madras ....
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....the learned Judge held as under: "On the principle laid down in R. v. Turner and numerous other cases where it is an offence to do an act without lawful authority, the person who sets up the lawful authority must prove it and the prosecution need not prove the absence of lawful authority. I think the onus of the negative averment in this case was on the accused to prove the possession of the policy required by the statute." 19. Section 9 of the Foreigners Act regarding burden of proof is basically on the same lines as the corresponding provision is in U.K. and some other Western nations and is based upon sound legal principle that the facts which are peculiarly within the knowledge of a person should prove it and not the party who avers the negative. 20. Clause (b) of sub-Section 6-A(1) of the Citizenship Act, 1955 defines "detected to be a foreigner" and it means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order 1964 by a Tribunal constituted under the said Order. Similarly, the explanation appended to Section 6-A(2) also refers to the "opinion of the Tribunal constituted under the Foreigners (Tribunal....
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....nnections with the people of India and without having in their possession any lawful authority so to do, illegally remained in India; AND WHEREAS the continuance of such foreigners in India is detrimental to the interests of the public of India; AND WHEREAS on account of the number of such foreigners and the manner in which such foreigners have clandestinely been trying to pass off as citizens of India and all other relevant circumstances, it is necessary for the protection of the citizens of India to make special provisions for the detection of such foreigners in Assam and also in any other part of India in which such foreigners may be found to have remained illegally;" Some of the provisions of the Act which are relevant are being reproduced below :- 3. Definitions and construction of references - (1) In this Act, unless the context requires (a) xxx xxx xxx (b) "foreigner" has the same meaning as in the Foreigners Act, 1946; (c) "illegal migrant" means a person in respect of whom each of the following conditions is satisfied, namely:- (i) he has entered into India on or after the 25th day of March, 1971; (ii) he is a foreigner; (iii) ....
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....dence of the person name in such reference is, at the time of making such reference, situated : Provided that where such person has no place of residence, the reference shall be made to the Tribunal within the territorial limits of whose jurisdiction such person is, at the time of making such reference, found. (5) Every application under sub-section (2) shall be made to the Tribunal within the territorial limits of whose jurisdiction the person named in such application is found or, as the case may be, has his place of residence, at the time of making such application. 8-A. Application to the Central Government for reference (1) Any person may make an application to the Central Government, for decision by a Tribunal, as to whether the person whose name and other particulars are given in the application, is or is not an illegal migrant, and where any such application is received by the Central Government, it may, on the basis of any information in its possession or after making such inquiry as it deems fit, reject the application on the ground that the application is frivolous or vexatious or it does not comply with the requirements of this section or refer such application ....
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....f, on a consideration of the report made by the prescribed authority, the Tribunal is satisfied that - (a) the person named in the application is not an illegal migrant or that the applicant is frivolous or vexatious, or has not been made in good faith, the Tribunal shall, after giving the applicant an opportunity to be heard, reject the application ; (b) there are reasonable grounds to believe that the person named in the application is an illegal migrant, the Tribunal shall issue a notice accompanied by a copy of the application, to the person named in the application, calling upon him to make, within thirty days from the date of receipt of the notice, such representation with regard to the averments made in the application and to produce such evidence as he may think fit in support of his defence ; Provided that if the Tribunal is satisfied that the person aforesaid was prevented by sufficient cause from making his representation and from producing evidence in support of his defence within the said period of thirty days, it may permit him to make his representation and to produce evidence in support of his defence, within such further period, not exceeding thirty ....
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....specified in the order and may give such further directions in regard to his removal from India as it may consider necessary or expedient. (2) Any police officer not below the rank of a Superintendent of Police shall have such powers as may be necessary, including the power to obtain a bond from any person for the due compliance of an order under sub- section (1) and to arrest such person in the event of his failure to furnish such bond to the satisfaction of such police officer. 22. Section 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 of the Tribunal. Section 15 provides for establishment of an Appellate Tribunal which shall consist of 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 Court is eligible to be appointed as member thereof. The Appellate Tribunal shall function in benches consisting of not less than two members. The Memorandum of Appeal shal....
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....uiry 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 comments 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 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 illegal migrant, that authority shall make a reference to the Tribunal for its decision thereon, along with the diary, rep....
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....eigners Act not to remain in India. This provision gives special advantage to an illegal migrant in Assam, which is not available to any foreigner in rest of India. Section 8(2) provides that any person may make an application to the Tribunal whether any person whose name is given in the application is or is not an illegal migrant but the proviso to this sub-section imposes a restriction that such an application can be given only by a person who lives within the jurisdiction of the same police station in which the alleged illegal migrant is found or resides. Section 8(3) imposes some further conditions and restrictions, namely, that the application shall be accompanied by affidavits sworn by not less than two persons residing within the jurisdiction of the same police station in which the alleged illegal migrant is found or is residing and a Court Fee of Rs. 10/- has to be paid. Section 8-A lays down that any person may make an application to the Central Government for decision by a Tribunal as to whether the person whose name and other particulars are given in the application is or is not an illegal migrant. In view of sub-section (2) of this Section, the application has to be acc....
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.... 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 Tribunal under Section 8(2) shall be made in Form III, an application to the Central Government under Section 8-A(2) shall 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 following information regarding the alleged illegal migrant: - (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 being 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 Fo....
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.... Rules made thereunder. The Act does not contain any provision for constitution of a screening committee which has been done under the Rules and has been conferred a very wide power of rejecting complaints against which no appeal lies. The figures supplied in the initial affidavit filed by the 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 of India 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 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 identification and deportation of illegal migrants. Not every person feel....
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....ecome 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 IMDT Rules and a corresponding penal provision to deal with such suspect in case of their refusal to furnish information as required in Rule 5. iii) There is no provision for compelling suspect witness to furnish 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/premises of the suspects nor can he compel the suspects to produce documents to give necessary information. v) Prosecution witnesses do not appear before the Tribunal 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 during the grace period of 30 days. vii) Notice/summons issued by ....
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....and make the life of the citizens safe and secure. The Government has also a duty to prevent any internal 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 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 in several countries published by Penguin Books 1992 Edn. page 676). The very 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 ....
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....n 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 1 of Chapter 1 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 acts of aggression or other breaches of peace, and to bring about by peaceful means, and in conformity 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 term "aggression" as any act of aggression including the employment of armed forces ....
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....akistan into India before the commencement of December 1971 Indo-Pak war. On 3rd November, 1971, one month before the actual commencement of the war, Dr. 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 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 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 be incomplete and therefore dangerous. For example, there could be a unique type of bloodless aggression from a vast and incessant flow of millions of human beings forced to flee into another....
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....l its departments and officers. If, therefore, the Government 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 having regard to the expenses involved and the carrying capacity of a ship in those days (1870-90) the number of Chinese labour coming to U.S.A. would have been miniscule compared to the influx of people from Bangladesh. Yet the U.S. Supreme Court viewed it as "aggression" and the presence of such foreigners as "dangerous to peace an....
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....le 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 dangerous dimensions of greatly undermining our national security. Pakistan's I.S.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 the Army Staff and is very well equipped 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 too keen to cross over the border and occupy the land wherever it is possible to do so. The report of the Governor, the affidavits and ot....
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.... made that innumerable and unsurmountable difficulties are created in the matter of identification and deportation of illegal migrants. No elaborate discussion on this aspect is required as the figures disclosed in the affidavits filed by the Union of India and the State of Assam speak for themselves. Though inquiries were initiated in 310759 cases under the IMDT Act but out of this only 10015 persons were declared as illegal migrants and finally only 1481 illegal migrants were physically expelled upto 30th April, 2000. This comes to less than half per cent of the cases initiated. In the State of West Bengal, where the Foreigners Act is applicable, 489046 persons were actually deported between 1983 and November 1998, which is a lesser period and even this result was termed as unsatisfactory in the counter affidavit filed by the Union of India. Thus, there 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 hurdle and is the main impediment or barrier in identification and deportation of illegal migrants. On the contrary, it is coming to the advantage of such illegal migrants as any proceed....
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....m and give 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 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 1st March, 1950, meant East Pakistan, which is the present Bangladesh. Realising the serious law and order problem created by migration from East Pakistan and the serious situation arising therefrom the said Act was enacted and conferred very wide powers upon the Central Government to direct removal 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 A....
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....d the power to 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 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 the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect 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. 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....
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....r 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 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 arisen on a representation made by such person against an order under the Foreigners Act, 1946 requiring him not to 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 make a representation to the Central Government for making a reference to the Tribunal, which will then proceed in accordance with IMDT Act having a further right 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 complexio....
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....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 whole 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, 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 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 continue to reside in Assam, who on account of their huge number affect the language, script and culture of the ....
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.... should be such which is just, fair and reasonable. This principle can have no application here for the obvious 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 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, 1971 in view of the language used in Section 6-A of 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 of Article 21 of the Constitution. In our opinion, the procedure under the Foreigners Act and the Foreigners (Tribunals) Order, 1964 is just, fair and 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 misconce....
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....oses 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 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 with law. 50. In Rex vs. Bottrill (1947) 1 K.B. 41, it was said that the King under the Constitution of United Kingdom is under no obligation 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 cause the Executive to expel the alien, whether enemy or friend. For holding so reliance was placed on Attorney-General for Canada vs. 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 permit an a....
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.... 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 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 of due process of law. 52. In Louis De Raedt vs. Union of India 1991 (3) SCC 554 the two foreign nationals engaged in missionary work had come to India in 1937 and 1948 respectively with proper documents like passport and visa etc. and were continuously living here but by the order dated 8th July, 1987 their prayer for further....
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....k AIR 1988 SC 1531. In the former case, it was held that once a classification is upheld by the application of the dual test, subjection of harsher treatment or disadvantageous procedure loses its relevance, the reason being that for the purposes of Article 14 unequals cannot complain of unequal treatment. In our opinion, the proposition urged by the learned Additional Solicitor 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 safeguards to 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 integrity and security of the said region and further their continuance in India 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 be....
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....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 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 notice of the Court by filing a writ petition under Article 32 of the 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 1987 SC 579, the petitioner had filed writ petition under Article 32 of the Constitution challenging the action of the Governor of Bihar in promulgating ordinances fro....
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....0, 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 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 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 whether on account of the recommendation of the Screening Committee or any other rea....