Sarbananda Sonowal and Ors. Vs. Union of India and Ors.

Date of Judgment: 05.12.2006

Equivalent Citations: 2007 (4) ALT 7 (SC), 2006 (13) SCALE 33, (2007) 1 SCC 174.

Case No. : 117 and 119 of 2006

Case Type: Writ Petition (Civil)

Petitioner/Appellant: Sarbananda Sonowal and Ors.

Defendant/Respondent: Union of India and Ors.

Bench: S.B. Sinha and P.K. Balasubramanyan

Court: Supreme Court of India

Statues referred:

  • Constitution of India; Article- 5, 6, 11, 14, 21, 30, 32 and 355.
  • Citizenship Amendment Act, 1955; Section- 6A and 18.
  • Indian Evidence Act, 1872; Section- 62, 101, 102 and 106.

Cases referred:

  • The Barium Chemicals Ltd. and Anr. Vs. Sh. A.J. Rana and Ors.
  • Jaswant Singh Vs. State of Punjab
  • State of Bihar Vs. P.P. Sharma
  • State (Anti-Corruption Branch), Govenrment of NCT of Delhi and Anr. Vs. Dr. R.C. Anand and Anr.

Facts:

  • Apart from the Constitutional provisions, whether a person is foreigner or not is decided under the Foreigners Act, 1946 (for short “the 1946 Act”). Under the said Act, the Central Government made an Order, called as the Foreigners (Tribunals) Order, 1964.
  • As on 31st December, 2005, 14,947 cases 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 declared as foreigners.
  • Sarbananda Sonowal filed writ petition under Article 32 of the Constitution of India against Union of India and Ors. for declaring some of the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 as unconstitutional, null and void and a consequent declaration that the Foreigners Act, 1946 and the Rules made thereunder would apply to the State of Assam.
  • The judgement is hereinafter referred to as Sonowal I.

Issues involved:

  • Whether the illegal migrants coming into the State of Assam should be treated differently from those who had migrated to the other parts of the country having regard to the provisions of the Citizenship Act, 1955 and the Foreigners (Tribunals) Order 1964 (for short “the 1964 Order”)?

Contention of Petitioner/Appellant:

The learned Counsel contended that-

  • The 2006 Order is unreasonable and issued in an arbitrary exercise of power. It requires to be quashed or declared invalid.
  • The tribunal would have to take the entire burden upon itself to arrive to a conclusion as to whether a person is foreigner or not.
  • The procedures provided under the 1946 Act and the Orders of 1964 and 2006 are not fair and are ultra vires of Indian Constitution under Articles 14 and 21.

Contention of Defendant/Respondent:

Counsel: Advs Mr. K.K. Venugopal, Ashok H. Desai, Prateek Jalan, Niti Dixit and Ruby Singh Ahuja.

The learned Counsel appearing on behalf of the Union of India contended that-

  • Given the higher degree of incursion of illegal migrants into Assam when compared to other States of the Union and in view of the special circumstances and features, such a provision had to be brought in.
  • It was pointed out that under the 1964 Order, the Central Government might or might not refer a matter to the Tribunal, whereas, under 2006 Order the same has been made mandatory for the Central Government. Now, the Central Government is bound to refer the question as to whether a person is a foreigner or not.

Judgment:

The Court held that it is not open to the authority concerned to nullify the directions of Supreme Court in Sonowal-I by way of Subordinate legislation by making the very 1964, Order inapplicable to the State of Assam.

Such removal or such making of the Order of 1964 inoperative to the State of Assam alone was discriminatory and was violative of Article 14 of the Constitution of India.

The provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Illegal Migrants (Determination by Tribunals) Rules, 1984 were declared to be ultra vires the Constitution and were struck down.

The Writ petition was allowed accordingly and the court ordered to quash the Foreigners (Tribunal) for Assam Order, 2006 (short for “the 2006 order”) order and the Foreigners (Tribunal) Amendment Order 2006 and directed the respondents to forthwith implement the directions issued by the Court in Sonowal I within a reasonable time.

Ratio decidendi:

When the parent Act remains in force and applicable, it is not open to the authority concerned to nullify the directions of Supreme Court by way of a subordinate legislation by making order in applicable to a particular state. According to the Court, it appeared that the 2006 Order issued was just a cover up for non implementation of the directions of this Court issued in Sonowal I.

Obiter dicta:

Conclusion:

The court allowed the Writ Petition and directions were issued to the Union of India to constitute sufficient number of Tribunals under the 1964 Order to efficiently deal with the cases of foreigners who have illegally come from Bangladesh or are residing in Assam, be implemented.

The Supreme Court held that the directions issued in Sonowal-I did not serve the purpose sought to achieved by the 1946, Act or the Citizenship Act and the obligations cast on the Central Government to protect the State in accordance of Article 355 of the Indian Constitution.

The 2006 Order was found to be unreasonable and issued in an arbitrary exercise of power.

Drafted By- Devanshi Saxena, Manipal University, Jaipur

Edited By: Tanvee Jain, Publisher, Law Insider

Published On: February 23, 2022 at 21:15 IST

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