Case: Sarbananda Sonowal Vs. Union of India & Another


Decision:
1[ds]17. There is good and sound reason for placing the burden of proof upon the person concerned who assertsto be acitizen of a particular country. In order to establishcitizenship, 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. Some times the place of birth of his grand parents 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 facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. 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.It is very important to note here that IMDT 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 it. In such circumstances a very heavy burden is cast upon the authorities of the State or the applicant to establish that a person is an illegal migrant as defined in Section 3(1)(c) of IMDT Act and is liable for deportation.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 to the authorities of the State is put under threat of criminal prosecution, if the contents of the application are found to be false. This is bound to have a cascading effect on citizens who will prefer to remain a quiet spectator to the continued influx of illegal migrants from Bangladesh rather than to take initiative in their detection or deportation.28. The analysis of the provisions of IMDT Act and the Rules made thereunder clearly demonstrate that the provisions thereof are very stringent as compared to the provisions of Foreigners 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 criminal trial where he may be awarded a capital punishment or imprisonment for life than to establish that a person is an illegal migrant on account of extremely difficult, cumbersome and time consuming procedure laid down in the IMDT Act and the 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 percent inquiries 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 ofpointing 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 feels that he owes a duty towards the nation and he should initiate proceedings for deportation of an illegal migrant. The applicant also incurs risk to his own security and safety besides spending time and energy in prosecuting the matter. Similarly, there is hardly any sense in making a provision for mentioning 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.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 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, can 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 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 IMDT Act due to which the Act has not become effective and the results are extremelyis a word of very wide import. Various meanings to the word have been given in the dictionaries, like,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 nation in violating the rights especially the territorial rights of another nation; overt destruction; covert hostileis not to be confused only withThough war would be included within the ambit and scope of the wordbut it comprises many other acts which cannot be termed as war.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.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 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.The learned Additional Solicitor General has also submitted that the vires of a special statute seeking to make some provisions or some defined 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, 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 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 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 soughted and, therefore, the classification made for application of IMDT Act to the State of Assam violates Article 14 and is consequently liable to be struck down.55.Mr. 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 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 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 seeks to achieve a political purpose. It is urged that the petitioner Shri Sarbananda Sonowal was earlier an MLA of Assam Gana Parishad party and 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. It is urged that as held in S.P. Gupta v. Union of Gupta, 1981 (Suppl.) 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. Mr. 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 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 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 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 petitioner as a member of the public was complaining of is a practice which is being followed by the State of Bihar of re-promulgting the Ordinances from time to time without 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 petitions. In R.K. Garg v. Union of India, AIR 1981 SC 2138 the constitutional validity of Special Bearer Bonds (Immunities and Exemptions) Ordinance and the Act of 1981 was challenged by Mr. 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. 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 (3) SC 165).57. To sum up our conclusions, the provisions 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 also ultra vires and are struck down. As a result, the Tribunals and the Appellate Tribunals constituted under the Illegal 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 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 reason whatsoever. The appeals pending before the Appellate Tribunals shall be deemed to have abated.