Case: Sarbananda Sonowal Vs. Union of India &amp; Another

1. This writ petition under Article 32 of the Constitution of India has been filed by way of public interest litigation for declaring certain provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 (Act No. 39 of 1983) as ultra vires the Constitution of India, null and void and consequent declaration that the Foreigners Act, 1946 and the Rules made thereunder shall apply to the State of Assam. The second prayer made is to declare the Illegal Migrants (Determination by Tribunals) Rules, 1984 as ultra vires the Constitution of India and also under Section 28 of the aforesaid Act and, therefore, null and void. Some more reliefs have been claimed which will be referred to at the appropriate stage. The respondents to the writ petition are the Union of India and the State of Assam.2. The case set up 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 EastOrganisation, which is an umbrella organization ofassociation 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 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 residents in Assam to secure the detection and deportation of foreigners from Indian soil. The Foreigners Act, 1946, applies to all the foreigners throughout India, but the IMDT Act which was enacted subsequently with the professed aim of making detection and deportation of the illegal migrants residing in Assam easier has completely failed to meet even the standards prescribed in the Foreigners Act. That apart, even those provisions of the IMDT Act which afford some measure of protection to some genuine Indian citizens against illegal migrants are not being properly enforced due to extraneous political considerations in derogation of the rights of Indian citizens living in Assam. The result of the IMDT Act has been that a number of non-Indians, who surreptitiously entered into Assam after March 25, 1971 without possession of valid passport, travel documents or other lawful authority to do so, continue to reside in Assam. Their presence has changed the whole character, cultural and ethnic composition of the area and the IMDT Act creates a situation whereunder it has become virtually impossible to challenge the presence of a foreigner and to secure his detection, deportation or even deletion of his name from the electoral list as they get protection on account of the provisions of the Act. According to the census figures, which have been given in the writ petition, the rate of growth of the population in Assam is far more than rest of India which shows that large number of foreigners have migrated to different areas of Assam and have settled there. It is further averred that in view of the problem of illegal migration of foreigners into Assam and their continued presence therein, a State-wise protest movement of students was organized which continued for a long period. As a result of themovement and ensuing negotiations, a memorandum of settlement dated 15th August, 1985 was entered into between All AssamUnion and the Union of India and the State of Assam, which is commonly known as. The terms of the Accord specifically provided that steps would be taken to detect and deport illegal migrants from Assam and it also contained a clause thatGovernment will give due consideration to certain difficulties expressed by AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act,The 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 headingProvisions as to Citizenship of Persons covered by the AssamIt provides that the termto be ashall 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 deemedto be acitizen of India. However, if such a person entered into Assam between 1st January, 1966 and before 25th March, 1971 and has been detectedto be aforeigner 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 governed by the provisions of the existing Central legislation, viz. the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964.3. It is further pleaded that after signing of the Assam Accord, several assurances were given and statements have been made by the Central Government that it is examining the failure of the IMDT Act regarding detection and deportation of foreigners and it is considering steps to repeal the Act. A document was signed by Union Home Secretary and Chief Secretary of Assam on 27th January, 1990 regarding preparation of a time-frame for class-wise implementation of the Assam Accord and it was mentioned therein that a decision on the repeal of the IMDT Act would be taken by 28th February, 1991. In a meeting held on 20th September, 1990 between Union Home Minister, Chief Minister of Assam and representatives of All AssamUnion, the student union reiterated their demand for repeal of the IMDT Act, which demand was noted and an assurance was given that the Central Government would initiate discussions with other political parties. The Union Home Minister in a meeting held on 11th August, 1997, wherein the petitioner was also present in his capacity as President of the AASU, stated that the results achieved were extremely poor. It was decided therein that Home Minister would visit certain sectors of Indo-Bangladesh border to take stock of the situation regarding illegal immigration and the inadequacy of the measures taken to prevent such immigration. Reference has been made to certain other meetings with the officers of Government of India (Ministry of Home Affairs) on 6th April, 1998 and 23rd September, 1998 wherein it was informed that the repeal of the IMDT Act was under active consideration of the Government. It is averred in paragraph 5(viii)(f) of the writ petition that the President of India in his address to the Parliament in February, 1999 said that the repeal of the Act was under active consideration of the Government. A meeting was again held on 18th March, 1999 between the representatives of the Government of India and Government of Assam and also of All AssamUnion, wherein it was assured that the repeal of the IMDT Act was under active consideration of the Central Government and measures would be taken to identify foreigners and steps will be taken to seal the border. Copies of the minutes 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 Assam Foreigners Tribunals under the Foreigners Act, 1946 are functioning for detection of illegal migrants, who had come to the State of Assam after 1st January, 1966 and up to 24th March, 1971 and the Illegal Migrants Determination Tribunals under the IMDT Act have been constituted for detection and deportation of illegal migrants, who had entered into India on or after 25th March, 1971. TheMinister had further stated that the Government is of the view that application of the IMDT Act to the State of Assam alone is discriminatory and a proposal to repeal the said Act is under consideration of the Government. A true copy of the latest status report filed by the Government in Writ Petition No. 125 of 1998, which has been filed seeking deportation of all Bangladeshi nationals from India, has been filed as Annexure R-1 to the Counter Affidavit and paragraphs 3 to 7 of the said status report are being reproducedContinuing influx of Bangladeshi nationals into India has been on account of a variety of reasons including religious and economic. There is a combination of factors on both sides which are responsible for continuing influx of illegal immigration from Bangladesh. The importanton the Bangladesh side include:(a) steep and continuous increase in population;(b) sharp deterioration in land-man ratio;(c) low rates of economic growth particularly poor performance in agriculture;Theon the Indian side include:(a) ethnic proximity and kinship enabling easy shelter to the immigrants;(b) porous and easily negotiable border with Bangladesh;(c) better economic opportunities;(d) interested religious and political elements encouraging immigration.4. It is difficult to make a realistic estimate of the number of illegal immigrants from Bangladesh because they enter surreptitiously and are able to mingle easily with the local population due to ethnic and linguistic similarities. The demographic composition in the districts bordering Bangladesh has altered with the illegal immigration from Bangladesh. The districts of Assam and West Bengal bordering Bangladesh have recorded growth of population higher than the national average. The States of Meghalaya, Mizoram and Tripura have also recorded high rates of population growth. Illegal immigrants from Bangladesh have also been using West Bengal as a 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 beparagraph 12 of the counter affidavit it is stated thatbasic objection of the petitioner is under consideration of the Central Government that the IMDT Act and the Rules made thereunder are not effective in comparison to the Foreigners Act, 1946, which is applicable to the whole country except to the State ofIn paragraph 18 of the counter affidavit it is stated that the administrative powers in respect of the IMDT Act have been delegated to the Government of Assam under Section 21 of the aforesaid Act. The second sub-paragraph of paragraph 18 and paragraph 19 of the counter affidavit are important and are being reproducedis further submitted that the detection/expulsion of illegal migrants under the IMDT Act, has been extremely dismal. According to the information furnished by the Government of Assam, the progress in respect of detection/expulsion of illegal migrants (those who entered Assam on or after 25.3.1971 upto 30.4.2000) is as follows:1.Total number of inquiries initiated3,10,7592.Total number of inquiries completed3,07,9553.Total number of inquiries referred to Screeing Committee3,01,9864.Total number of inquiries made by the Screening Committee2,98,4655.Total number of inquiries referred to IM(DT)s38,6316.Total number of inquiries disposed of by IM(DT)s16,5997.Total number of persons declared as illegal migrants10,0158.Total number of illegal migrants physically expelled1,4819.Total number of illegal migrants to whom expulsion order served5,73310.Total number of inquiries pending with ScreeningCommittee3,52111.Total number of inquiries pending with the Tribunal22,072In reply to para 9, it is submitted that the Chief Minister of Assam had requested the then Prime Minister vide his letter dated 22.6.96 regarding repeal of the IMDT Act. The Chief Minister again reiterated for scrapping the IMDT Act, vide his letter dated 31.7.96 addressed to the Home Minister. This view has been reconfirmed by the State Government vide its message datedparagraph 22 of the counter affidavit it is stated that a proposal to repeal the IMDT Act is under consideration of the Government of India and in paragraph 24 it is stated that there is need for a uniform Act for detection and deportation of foreigners for the entire country including Assam.5. The State of Assam filed a counter affidavit on 28th August, 2000, wherein it is stated that the State Government has been persistently writing to the Central Government that the IMDT Act is operating against 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 AssamUnion (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 controversy in hand, is being reproducedThat it is pertinent to mention that there has been a sharp increase of the Muslim population in the respondent/State in the last few decades.The statistical analysis of the sharp growth of Muslim population in Assam vis-a-vis Hindu population for the decades 1951-61, 1961-71 and 1971-1991 is as follows:YearAssamMuslimHindu1951-196138.3733.701961-197130.9937.181971-199177.4241.89(*Source Directorate of Census, Government of India)The chart given above clearly indicates that Muslim population of Assam has shown a rise of 77.42% in 1971-1991, whereas Hindu population has risen by nearly 41.89% during the said period.There are three Districts in Assam, which has borders with Bangladesh viz. Karimganj, Cachar and Dhubri. All India percentage of decadal increase in population during 1981-1991 is 23.85% whereas in the Border districts of Assam namely, Karimganj shows decadal increase of 42.08%, Cachar district 47.59% and Dhubri district 56.57%. From the above it can be assumed that the infiltration of foreigners from Bangladesh contributed significantly to the sharp increase of population inparagraph 9 of the counter affidavit, the major impediment in implementation of the IMDT Act have been pointed out in detail and it is also averred that the Act is discriminatory as it has been made applicable only to the State of Assam and not to other States like West Bengal, Tripura and Meghalaya, etc. which are facing similar problem of illegal migrants. Copies of several communications sent to the Government of India by the State of Assam requesting for repeal of the IMDT Act and also seeking appropriate amendment to the Citizenship Act, 1955, in order to declare the children of the illegal migrants entering into India after 1971 as foreigners, have also been filed. The difficulties in the implementation of the Act and the Rules have been pointed out which we will advert to later on. It is further averred that despite repeated advertisements and serious efforts, the State Government has not been able to get qualified persons to fill in the vacant posts in the Tribunals. Figures as on 31st March, 2000, of total number of inquiries initiated, total number of persons declared as illegal migrants and the number of persons physically expelled have been given. It is specifically pleaded 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 thataffidavit 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 theIt is also averred that in the election manifesto of the Indian National Congress in the just concluded elections, it was specifically declared that the Act was introduced to save the Indian citizens from unnecessary harassment in the name of detection of foreigners and the Congress party is committed to oppose any move to repeal the Act. Apart from making a bald statement that the IMDT Act is not arbitrary or discriminatory and denial of the averment that it makes the task of securing the detection and deportation of foreigners impossible or that non-citizens are getting protection to the detriment of bona fide citizens of India, nothing specific is stated nor any specific statement made in the earlier affidavit or the facts and figures supplied therein have been controverted. A general statement is made that the State of Assam is making all steps for effective implementation of the IMDT Act and deportation of illegal migrants.7. The aforesaid I.A. No. 5 of 2001 came up for consideration before a three-Judge Bench presided by the then Chief Justice of India on 15th October, 2001 and the relevant portion of the order passed thereon is being reproducedapplication has been filed on behalf of the State of Assam seeking permission to file ‘a new counterThe application is supported by an affidavit of the Commissioner and Secretary, Home Department, Government of Assam.Mr. Kapil Sibal, learned Senior Counsel appearing for the State submits that he does not press prayerand that the affidavit which has been filed along with this application, may be treated as ‘an additionalLearned Counsel appearing for other parties have no objection to that course being adopted. We, therefore, take on record the new affidavit as an additional affidavit filed on behalf of State of Assam and reject prayerThe application is allowed in above terms.Mr. Ashok Desai, learned Senior Counsel prays for and is granted fourtime to file his response to the additional affidavit filed by the State. All other parties may also file their response, if any, within the same period, to the additional affidavit.List the writ petitions after four weeks before a three-Judge Bench for further proceedings.The Union of India filed a counter affidavit sworn by Shri Jatinder Bir Singh, Director, Ministry of Home Affairs, in reply to the additional affidavit of the State of Assam. It is averred therein that 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 belowthis 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 titledUlama-e-Hind & Another v. Union of India and Others, Writ Petition (Civil) No. 7 ofclearly indicate that it is the existence of the IMDT Act, which has been the single factor responsible for dismal detection and expulsion of illegal migrants in Assam. It has also been pointed out that in the neighbouring States, where this law is not in force, the process of detection (although far from satisfactory) has been far more effective than in the State of Assam. The application of IMDT Act, 1983 in Assam virtually gives the illegal migrants, in the State, preferential protection in a matter relating to the citizenship of India. This is clearly unconstitutional and violative of the principles of equality. The affidavit of the State seems to suggest that the matter has now become a political rather than a legal issue. However, it is submitted that as far as the present pleadings are concerned, the issues indicated in the present affidavit of the State under reply, are not relevant. None of the submissions made in the connected affidavit, referred to above filed by the Union of India in connected Writ Petition No. 7/2001, are controverted by the State of Assam in present affidavit. Besides this, the State has not given any fresh facts and figures, which would seek to suggest that this Act has secured the object of dealing with illegalparagraph 2 it is averred that though the administrative power have been delegated to the Government of Assam to implement the IMDT Act but the entire expenditure incurred is being reimbursed by the Central Government to the Government of Assam. It is further averred that since the enforcement of the IMDT Act only 1494 illegal migrants had been deported from Assam upto 30th June, 2001. In contrast 489046 number of Bangladeshi nationals had been actually deported under the Foreigners Act, 1946 from the State of West Bengal between 1983 and November 1998. The IMDT Act had failed to fulfil the objects for which it was enacted which is apparent from the poor results and it places Assam in a different position from rest of the country where the Foreigners Act, 1946 is applicable. The provisions of the IMDT Act and the Rules made thereunder are highly burdensome for the public, as a result whereof no worthwhile cooperation/response is received from the public in the detection and deportation of illegal migrants. The Act failed to achieve its object rather it generated its side effects. It is also averred that there is no justification in the application of the IMDT Act to the State 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 asThere 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 phenomenon by the Islamic Fundamentalists creating the vision of a larger country comprising Bangladesh and the entire North East where its economic problems will be solved and security ensured.20.4 There is a direct correlation between the rise of fundamentalism and increase inis further averred in paragraphs 9 and 10 of this affidavit that the Law Commission of India in its 175th Report on the Foreigners (Amendment) Bill, 2000 (submitted in September 2000) has also dealt with this issue. While noting that entry of illegal migrants and other undesirable aliens into India has posed a grave threat to our democracy and the security of India, especially for the eastern part of the country and Jammu and Kashmir, the Law Commission has observed that influx of migrants from Bangladesh has remained unabated and has acquired frightening proportions. The Law Commission has also referred to the Report of the Governor of Assam dated 8th November, 1998 submitted to the President of India highlighting dangerous dimensions of the unprecedented migration of Bangladeshis to Assam and the security threats and strategic and economic consequences thereof. The Law Commission has proposed a draft Foreigners (Amendment) Bill, governing foreigners in India and the prevailing discriminatory position by the application of IMDT Act only to the State of Assam has been sought to be done away with by providing in Section 8(1) of the draft Bill for repeal of the said Act and dissolution of the Tribunals constituted thereunder.10. The Union of India has filed another affidavit on 24th November, 2004 wherein it is averred that though in the earlier affidavit a prayer was made to examine the constitutional validity of the IMDT Act, but on reconsideration the Central Government has taken a decision to retain the IMDT Act in present form in its application to the State of Assam. It is averred that allegations were made by various organizations that a large number of genuine Indian citizens were deported under the Foreigners Act, 1946 and, therefore, the IMDT Act was enforced whose purpose is to protect the genuine Indian citizens and it introduced an element of judicial scrutiny to determine the citizenship of a person. It is further averred that upto 31st March, 2004, the number of complaints received under the IMDT Act were 401598 wherein inquiries were completed in 397835 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.

Court's reasoning:
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.