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Sarbananda Sonowal V. Union of India & Another (2005)

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Citations: Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665: AIR 2005 SC 2920

Date of Judgment: 12/07/2005

Equivalent Citations: AIR 2005 SUPREME COURT 2920, 2005 (5) SCC 665, 2005 AIR SCW 3393, 2005 (5) SLT 277, (2005) 32 ALLINDCAS 64 (SC), 2005 (5) SCALE 375, 2005 (32) ALLINDCAS 64, (2005) 32 OCR 1, (2005) 5 SUPREME 10, (2005) 5 SCALE 375

Case No: Writ Petition (civil) 131 of 2000

Case Type: N/A

Petitioner: Sarbananda Sonowal

Respondent: Union of India & Another

Bench:

  • Hon’ble Justice R.C. Lahoti
  • Hon’ble Justice G.P. Mathur
  • Hon’ble Justice P.K. Balasubramanyan

Court: The Supreme Court of India

Statutes Referred:

  • The Constitution of India – Article 355, Article 14, Article 21
  • Illegal Migrants (Determination by Tribunals) Act, 1983
  • Illegal Migrants (Determination by Tribunals) Rules, 1984
  • Foreigners Act, 1946
  • Citizenship Act, 1955 – Section 6A

Facts

  • During 1971, the war of Bangladesh took place during which lot of people from Bangladesh illegally migrated to India and most effected state were Assam as it shares border with Bangladesh.
  • In order to get them legalize, they got their names mentioned in the electoral roll of the state of Assam.
  • All of these sparked large-scale protests against illegal immigration, spearheaded by the All Assam Students Association. They demanded that these migrants be removed from Assam as this threatened not only their own existence in their own state, but also the country’s security.
  • To solve this problem, the Indian Government enacted Illegal Migrants (Determination by Tribunals) Act only in the state of Assam, under which special Tribunals were established to detect and deport the illegal migration in the state of Assam.
  • Whereas, the Foreigners Act, 1946 applies to all the foreigners throughout India, but the Illegal Migrants (Determination by Tribunals) 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.
  • The result of the Illegal Migrants (Determination by Tribunals) 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.
  • As a result of the students’ movement and ensuing negotiations, a memorandum of settlement dated 15th August, 1985 was entered into between All Assam Students’ Union and the Union of India and the State of Assam, which is commonly known as “Assam Accord“. The terms of the Accord specifically provided that:
    • Steps would be taken to tackle the problem of illegal immigration in Assam
    • It was also claimed that Government will give due consideration to implementation and failure of various provisions of Illegal Migrants (Determination by Tribunals) Act.
    • The Accord also specified that foreign nationals entering India after March 25, 1971, would be deported from the country and their identities would be removed from electoral records.
  • In pursuance of this accord, the Citizenship Act, 1955 was amended and Section 6A was inserted with the heading “Special Provisions as to Citizenship of Persons covered by the Assam Accord.”
  • Following the signing of the Assam Accord, the Central Government issued many guarantees and remarks indicating that it is investigating the failure of the Illegal Migrants (Determination by Tribunals) Act and is considering repealing the Act, but it was never done.
  • So the Petitioner (Sarbananda Sonowal) who is a former President of the All Assam Students Union filed a writ petition under Article 32 of the Indian Constitution by way of Public Interest Litigation for declaring Illegal Migrants (Determination by Tribunals) Act as null and void and ultra vires the Constitution of India.

Issues Involved

  • Whether the various provisions of Illegal Migrants (Determination by Tribunals) Act, 1983 is ultra vires the Constitution or not which has been made applicable only to the State of Assam and that too for detection and deportation of illegal migrants, who have entered India on 25th March, 1971 or thereafter?
  • Whether the provisions of Illegal Migrants (Determination by Tribunals) Rules, 1983 is ultra vires the Constitution or not?

Contention of Petitioner:

The Counsel for Petitioner contended that:

  • It was contended that the Illegal Migrants (Determination by Tribunals) Act is discriminatory as it has been implemented only in the State of Assam and not to other states like Meghalaya, Tripura and many North Eastern States who are facing similar problem of Illegal Migrants.
  • It is also contended that the Illegal Migrants (Determination by Tribunals) Act should be repealed since it is an ineffectual piece of legislation that obstructs the identification and elimination of foreigners who immigrated in Assam post 1971.
  • It is contended that Assam is experiencing “external aggression and internal disturbance” as a result of the widespread illegal migration of citizens of Bangladesh and according to Article 355 of the Constitution, it is the duty of Union of India to take all necessary steps to protect the State of Assam from these forms of external aggression and internal disturbance. But, the Illegal Migrants (Determination by Tribunals) Act which is enacted only in state of Assam, clearly contravenes Article 355 of the Constitution. Therefore, it is totally unconstitutional and has to be struck down.
  • It is also contended that application of Illegal Migrants (Determination by Tribunals) Act only in state of Assam also violates Article 14 (Right to Equality) of the Indian Constitution as the migrants coming into the State of Assam has been treated differently as compare to the migrants in any other State of India.
  • It is also contended that Assam’s demographic pattern has changed due to a large influx of illegal migrants from Bangladesh, thus violating the rights guaranteed under Article 29(1) of the Constitution of the people of Assam as they have a fundamental right to conserve their language, script or culture.

Contention of Respondent:

The counsel for Respondent contended that:

  • It was contended that the Illegal Migrants (Determination by Tribunals) Act establishes a very fair process for deciding whether or not an individual is an illegal immigrant, as the said question is determined by a two-member judicial tribunal.
  • It was also contended that Illegal Migrants (Determination by Tribunals) Act has been enacted to give protection to genuine Indian citizens and it introduced an element of judicial scrutiny to determine the citizenship of a person, as the allegations were made by various organizations that a large number of genuine Indian citizens were deported under the Foreigners Act, 1946.
  • It was also contended that Article 21 expands to both citizens and non – citizens and Illegal Migrants (Determination by Tribunals) Act lays down a fair procedure, namely determination by a judicial Tribunal of the question of citizenship of a person and his deportation. It has thus been submitted that the Illegal Migrants (Determination by Tribunals) Act which seeks to achieve this object meets the requirements of Article 21 of the Constitution and thus its validity cannot be challenged.
  • It is also contended that no fundamental right of Petitioner has been violated and in addition to that it is also submitted that present writ petition seeks to achieve Political purpose only. Thus, the present petition under Article 32 of the Constitution is not maintainable.
  • It is also contended that Special Statute cannot be challenged on the basis of comparison with general statute dealing with same field.

Judgment:

It was held by the supreme Court that the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 and Illegal Migrants (Determination by Tribunals) Rules, 1984are ultra-vires the Constitution of India and thus liable to be struck down and the Tribunals & Appellate constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall cease to function and all the pending cases shall be transferred to the Tribunals constituted under the Foreigners Act, 1946. It was also stated that the Foreigners Act, 1946 shall apply to the State of Assam and the respondents are directed to constitute Tribunals under Foreigners Act, 1946 to effectively deal with matters of foreigners who illegally migrated to State of Assam from Bangladesh.

Ratio Decidendi:

Under the Foreigners Act, 1946 the burden of proving that a person is not a foreigner or not, shall lie upon such person whereas under Illegal Migrants (Determination by Tribunals) Act, 1983 a very heavy burden is cast upon the authorities of the State to detect that whether a person is an illegal immigrant or not.

Thus, the Illegal Migrants (Determination by Tribunals) Act, 1983 failed to achieve its object and also there is no justification in the application of the Illegal Migrants (Determination by Tribunals) Act, 1983 to the State of Assam when the provisions of the Foreigners Act, 1946 are quite effective for detection and deportation of illegal migrants which is applicable to the rest of the country.

Obiter Dicta

N/A

Conclusion

To handle the special circumstance of the State of Assam and to detect & deport the influx of illegal immigrants in Assam, the Illegal Migrants (Determination by Tribunals) Act, 1983 was enacted. But as the Act failed to fulfil its objective, the provisions of the act were declared ultra vires to the Constitution of India and thus was struck down by the Apex Court and the Foreigners Act, 1946 was implemented to the State of Assam.

Drafted By Sargam Bansal

Published on: February 10, 2024 at 00:20 IST