TaxTMI 
TaxTMI 
2006 (12) TMI 588
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....laration that the Foreigners Act, 1946 (for short 'the 1946 Act') and the Rules made thereunder would apply to the State of Assam. The pleas raised in the said writ petition found favour with a 3-Judge Bench of this Court in the decision reported in AIR 2005 SC 2920 . The said decision is hereinafter referred to as Sonowal I. It was directed therein: 84. In view of the discussion made above, the writ petition succeeds and is allowed with the following directions: (1) The provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Illegal Migrants (Determination by Tribunals) Rules, 1984 are declared to be ultra vires the Constitution and are struck down. (2) The Tribunals and the Appellate Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall cease to function. (3) All cases pending before the Tribunals under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided in the manner provided in the Foreigners Act, the Rules made thereunder and the procedure pres....
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....ision to get all pending cases relating to alleged immigrants decided by the Tribunal under the 1964 Order is sought to be nullified. It is done in spite of the reasoning in Sonowal I leading to the directions issued therein. It must be noted that the parent Act stands unamended. 5. Instead of obeying the mandamus issued by this Court essentially in the interests of national security and to preserve the demographic balance of a part of India, that is Bharat, and implementing the 1964 Order in Assam in letter and spirit, the Authorities that be, have chosen to make the 1964 Order itself inapplicable to Assam. Whether the authority that should be interested in the welfare of the nation, its security and integrity, can do so in the light of the facts noticed and relied on in Sonowal I is the question? In the reply filed on behalf of the Union of India, after stating that some steps have been taken to implement the directions of this Court in the earlier writ petition, it is stated: In the meantime, Representations were received by the Government of India from various organizations of Assam for providing safeguards for genuine Indian citizens either by framing a new law or ....
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....on of the representations, provisions of the Foreigners Act, 1946 and the peculiar situation of Assam, it was considered necessary to have a separate procedure for the Foreigners Tribunals in the State of Assam. It is pertinent to note that a separate procedure for detection of foreigners has already been in existence in Assam for the last 40 years. No facts or details are furnished in support. What is the peculiar situation other than what is noticed in Sonowal I is not explained. 6. Paragraph 2 of the 2006 Order provides for constitution of tribunals in the following terms: 2. Constitution of Tribunals:- (1) The Central Government or any authority specified in this regard shall, by order, refer the question as to whether a person is or is not foreigner within the meaning of he Foreigners Act 1946 (31 of 1946) to a Tribunal to be constituted for the purpose, for its opinion. (2) The registering authority appointed under Sub-rule (1) of rule 16F of the Citizenship Rules, 1956 shall refer to the Tribunal the question whether a person of Indian origin complies with any of the requirements under Sub-section (3) of Section 6A of the Citizenship Act, 1955 (57 of ....
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.... 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. Rule 3 of the 1964 Order provided the procedure for disposal of the question. The 1964 Order has now been made inapplicable to the State of Assam. Despite a clear direction in Sonowal I in regard to strict implementation of the equality clause amongst the migrants from Bangladesh, the Central Government made the 2006 Order which is applicable to the State of Assam only. 8. The factual position that obtains is that as on 31st December, 2005, 14,947 cases were pending before the Foreigners Tribunals functioning in Assam and 29,429 persons who came to Assam between 1st January, 1966 and 24th March, 1971 were identified as foreigners. As far as the Tribunals set ....
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....s of this Court by way of subordinate legislation by making the very 1964 Order inapplicable to the State of Assam, especially in the light of the reasoning in Sonowal I. 13. Thus, if the Order making the 1964 Order to the State of Assam inapplicable is found invalid, there is no question of the 2006 Order being promulgated to replace the 1964 Order. The attempt has to be held to be still born especially in the context of Sonowal I and the reasoning therein. The field continues to be occupied by the 1964 Order and the 2006 Order cannot operate parallelly. Moreover, the 2006 Order will fall on the basis of the reasoning in Sonowal I. Though this is the position, out of deference to the arguments raised before us, we will consider the challenge to the 2006 Order independently. 14. A comparative chart showing the changes brought about in paragraphs 2 and 3 of the 1964 Order by reason of the 2006 Order may be noticed as under: Clause Foreigners (Tribunals) Order 1964 Foreigners (Tribunals for Assam) Order 2006 2(1) Constitution of Tribunals The Central Government may by order, refer the question as to whether a person is or is not a foreigner within the meaning ....
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....matter, but now it did not have. Once, however, a reference is made to the Tribunal without making any enquiry whatsoever, it would be for the Tribunal, which has a quasi-judicial function to perform, to determine the question as to whether a prima facie case has been made out for issuance of a show-cause notice having regard to the sufficiency or otherwise of the grounds which can be found out from the material placed before it. By reason thereof, the burden of proof as specified under the 1946 Act is not diluted. The provisions of Article 21 of the Constitution of India being applicable to a person who had already set his feet in India he would be entitled to claim compliance of the principles of natural justice which may not be necessary in respect of a person who has yet to enter the Indian territory. 15. Articles 5, 6 and 11 of the Constitution of India read as under: 5. Citizenship at the commencement of the Constitution.-At the commencement of this Constitution every person who has his domicile in the territory of India and: (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or ....
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....tion 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 (c) 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 respect to such other requirement, decide the question in conformity with such finding; (ii) if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal constituted under the said Order having jurisdiction in accordance with such rules as the Central Government may make in this behalf under Section 18 and decide the question in conformity with the opinion received ....
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.... is not available to any other person similarly situated against whom an order under the 1946 Act may have been passed, if he is in any part of India other than the State of Assam. (v) The provisions of the 1946 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. (vi) Since the classification made whereby IMDT Act is made applicable only to the State of Assam has no rational nexus with the policy and object of the Act, it is clearly violative of Article 14 of the Constitution of India and is liable to be struck down on this ground also. (vii) The procedure under the 1946 Act and the 1964 Order is just, fair and reasonable and does not offend any constitutional provision. (viii) All cases pending before the Tribunals under the IMDT Act shall stand transferred to the Tribunals constituted under the 1964 Order and shall be decided in the manner provided in the 1946 Act, the Rules made thereunder and the procedure prescribed under the 1964 Order. (ix) The Union of....
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....vernment to make a reference. A discretionary jurisdiction, however, was granted to the Central Government only for the purpose of arriving at a subjective satisfaction. 20. By reason of the 2006 Order, the requirement to arrive at such satisfaction on the part of the Central Government, cannot be said to have been taken away, in view of the fact that expressions "by order" and "refer the question" still exist in the statute and, thus, appropriate meaning thereto should be assigned. Before a statutory authority passes an order or makes a reference to a Tribunal indisputably, therefore a satisfaction is to be arrived at. Whenever such a satisfaction is to be arrived at, which must be reflected in the order of reference, the same may be subject to the principles of the judicial review. Such a decision for the purpose of making a reference is to be arrived at on the basis of the available materials. To that extent, therefore, application of mind is necessary. 21. In The Barium Chemicals Ltd. and Anr. v. Sh. A.J. Rana and Ors. [1972] 2 SCR 752 , it was held: 14. The words "considers it necessary" postulate that the authority concerned has thought over the matter delibera....
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....es of the Concurrent List and that it contains provision or provisions repugnant to the law made by Parliament or existing law. Further, the words "reserved for consideration" would definitely indicate that there should be active application of mind by the President to the repugnancy pointed out between the proposed State law and the earlier law made by Parliament and the necessity of having such a law, in the facts and circumstances of the matter, which is repugnant to a law enacted by Parliament prevailing in a State. The word "consideration" would manifest that after careful thinking over and due application of mind regarding the necessity of having State law which is repugnant to the law made by Parliament, the President may grant assent.... Yet again in State (Anti-Corruption Branch), Govt. of NCT of Delhi and Anr. v. Dr. R.C. Anand and Anr. 2004 CriLJ 3121 , as regards necessity for application of mind for grant of sanction, this Court opined: The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence including the transcript of the tape record have....
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....o a conclusion that there is no sufficient ground, it will have no other option having regard to the phraseology used in paragraph 3 of the 2006 Order to dismiss the same. But, if the Tribunal is formulating the ground so as to enable it to communicate the same to the alleged foreigner, the Tribunal would be able to proceed methodologically. 25. It is not in dispute that whereas in terms of the 1964 Order the entire burden was on the alleged foreigner; by reason of the 2006 Order, the proceeding before the Tribunal would be in two parts. Firstly, the Tribunal will have no other option but to apply its mind to the materials on record to enable itself to arrive at a conclusion as to whether there exists any sufficient ground for proceeding in the matter. For the said purpose, not only a satisfaction is required to be arrived at by the Tribunal but the basic facts in respect thereof are required to be prima facie established. The statute is silent as to on what basis such basic facts are required to be established. No criterion has been laid down therefore. At that juncture, the Tribunal may not have any assistance of any other authority. Ex facie, the Tribunal would have to take t....
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....ble. Only because, the burden of proof is on the proceeded, the same by itself would not mean that the procedure is ultra vires; the provisions of Article 21 of the Constitution of India. Article 21 would not be offended if the procedure is fair and reasonable. 31. In Sonowal I, a singular contention based on applicability of Article 21 of the Constitution of India has been negatived by this Court stating: 73. It is not possible to accept the submission made. The view taken by this Court is that in a criminal trial where a person is prosecuted and punished 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 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 ....
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....missions made on behalf of the Learned Counsel appearing on behalf of the Appellants that the courts cannot exercise their power of judicial review at all. By reason of any legislation whether enacted by the legislature or by way of subordinate legislation, the State gives effect to its legislative policy. Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart from being intra vires the Constitution, should not also be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith. In Craies on Statute Law, 7th edition, it is stated at page 297: The initial difference between subordinate legislation (of the kind dealt with in this chapter) and statute law lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority, and that courts of law, as a general rule, will not give effect to the rules, etc., thus made, unless satisfied that all the conditions precedent to the validity of the rules have been ....
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....wever, be any doubt whatsoever that adequate care should be taken to see that no genuine citizen of India is thrown out of the country. A person who claims himself to be a citizen of India in terms of the Constitution of India or the Citizenship Act is entitled to all safeguards both substantive and procedural provided for therein to show that he is a citizen. 33. Status of a person, however, is determined according to statute. The Evidence Act of our country has made provisions as regards 'burden of proof'. Different statutes also lay down as to how and in what manner burden is to be discharged. Even some penal statutes contain provisions that burden of proof shall be on the accused. Only because burden of proof under certain situations is placed on the accused, the same would not mean that he is deprived of the procedural safeguard. In Hiten Pal Dalal v. Bratindranath Banerjee 2001 CriLJ 4647 , this Court categorically opined: ...Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. Th....
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....ary onus in relation thereto would be on the State. However, once the Tribunal satisfied itself about the existence of grounds, the burden of proof would be upon the proceeded. 35. In Sonowal I, this Court clearly held that the burden of proof would be upon the proceeded as he would be possessing the necessary documents to show that he is a citizen not only within the meaning of the provisions of the Constitution of India but also within the provisions of the Citizenship Act. It was stated: 26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the fa....