ITEM NO.44 COURT NO.4 SECTION PIL S U
P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s).
881/2014
GAURI MAULEKHI Petitioner(s)
VERSUS
UNION OF INDIA AND ORS. Respondent(s)
(with appln. (s) for directions and
office report)
Date : 21/11/2014 This petition was
called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE ARUN MISHRA
For Petitioner(s) Mr. Anand
Grover, Sr. Adv.Ms. Nithya Rajshekhar, Adv.
Mr. Mukesh Kumar Singh, Adv.Mr.
Amit, Adv.for Mr. Purushottam Sharma Tripathi,AORFor Respondent(s) Mr. Ranjit
Kumar, SG(UOI) Mr. P.S. Narsimha, ASGMs. Binu Tamta, Adv.Mr. Sridhar Potaraju,
Adv.State of Bihar Mr. Manish Kumar, Adv.for Mr. Gopal Singh,AOR(NP)State of UP
Mr. Gaurav Bhatia, AAG Mr. Samir Ali Khan, Adv. State of Ms. Rachana
Srivastava, Adv. Uttarakhand Mr. Utkarsh Sharma, Adv. State of WB Mr. Kalyan
Kr. Bandopadhyay, Sr. Adv. Ms. Shagun Matta, Adv. For Mr. Anip Sachthey,
AOR(NP)
UPON hearing the counsel the Court made the following
O R D E R
Affidavit filed on behalf of
Sashastra Seema Bal (SSB) in Court today is taken on record, copies whereof
have been furnished to the learned counsel for the petitioner and other
counsel.
The efforts that were made by
the respective State Governments may continue vigorously till the festival
which is scheduled for 28/29-11-2014 is over. We appreciate the efforts of the
SSB and the respective State Governments.
The SSB and all the concerned
State Governments are requested to afford inputs to this Court by way of
affidavits, depicting the manner in which the issue needs to be addressed on a
long term basis. These inputs be furnished to this Court within four weeks from
today.
List there after.
(Parveen Kr. Chawla) (Phoolan Wati Arora)
Court Master Assistant
Registrar
ITEM NO.36 COURT NO.4 SECTION PIL
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s).
881/2014
GAURI MAULEKHI Petitioner(s)
VERSUS
UNION OF INDIA AND ORS. Respondent(s)
(with appln. (s) for directions and
office report)
Date : 03/11/2014 This petition was called on for
hearing today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE ARUN MISHRA
For Petitioner(s) Mr. Anand Grover, Sr. Adv.
Mr. Mihir Samson, Adv. Ms. Filza
Moonis, Adv.Mr. Mukesh Kumar Singh, Adv.
for Mr. Purushottam Sharma
Tripathi,AOR
For Respondent(s) Mr. Ranjit Kumar, Solicitor General Mr. P.S.
Narasimha, ASG Mr. Sridhar Potaraju, Adv.Ms. Binu Tamta, Adv.Mr. Saakaar
Sardana, Adv.
UPON hearing the counsel the Court made the following
O R D E R
In order to sort out the issues
which have been projected through this writ petition, we consider it just and
appropriate that a meeting should be convened in the office of the Solicitor
General of India. Mr. Ranjit Kumar, learned Solicitor General has agreed to
convene the said meeting on 14.11.2014 at 4.00 p.m.. We would request learned
counsel representing the States of Bihar, Uttarakhand, Uttar Pradesh and West
Bengal to participate in the deliberations to be conducted in the above meeting
on 14.11.2014. Learned counsel for the petitioner shall also assist in
finalising the recommendations.
Today, Mr. Ranjit Kumar, learned
Solicitor General has handed over to us two letters both dated 31.10.2014,
inter alia, depicting that instructions have been issued to the Sashastra
Seema Bal (hereinafter referred
to as the 'SSB') to ensure that animals are not transported across the border
without licence.
We hope and expect that the
directions issued to the SSB will be complied with in letter and spirit.
List again on 21.11.2014.
(Parveen Kr. Chawla) (Renu Diwan)
Court Master Court Master
----------------------------------------------------------------------------------------------------------------------
1
ITEM NO.44 COURT NO.4 SECTION PIL
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s).
881/2014
GAURI MAULEKHI Petitioner(s)
VERSUS
UNION OF INDIA AND ORS. Respondent(s)
(with appln. (s) for directions and
office report)
Date : 21/11/2014 This petition was called on for hearing
today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE ARUN MISHRA
For Petitioner(s) Mr. Anand
Grover, Sr. Adv.
Ms. Nithya Rajshekhar, Adv.Mr.
Mukesh Kumar Singh, Adv.Mr. Amit, Adv.for Mr. Purushottam Sharma
Tripathi,AORFor Respondent(s) Mr. Ranjit Kumar, SG(UOI) Mr. P.S. Narsimha,
ASGMs. Binu Tamta, Adv.Mr. Sridhar Potaraju, Adv.State of Bihar Mr. Manish
Kumar, Adv.for Mr. Gopal Singh,AOR(NP)State of UP Mr. Gaurav Bhatia, AAGMr.
Samir Ali Khan, Adv.State of Ms.Rachana Srivastava, Adv.Uttarakhand Mr. Utkarsh
Sharma, Adv.State of WB Mr. Kalyan Kr. Bandopadhyay, Sr. Adv. Ms. Shagun Matta,
Adv.For Mr. Anip Sachthey, AOR(NP)
UPON hearing the counsel the Court made the following
O R D E R
Affidavit filed on behalf of
Sashastra Seema Bal (SSB)in Court today is taken on record, copies whereof have
been furnished to the learned counsel for the petitioner and other counsel.
The efforts that were made by
the respective State Governments may continue vigorously till the festival
which is scheduled for 28/29-11-2014 is over. We appreciate the efforts
of the SSB and the respective
State Governments. The SSB and all the concerned State Governments are
requested to afford inputs to this Court by way of affidavits, depicting the
manner in which the issue needs to be addressed on a long term basis. These
inputs be furnished to this Court within four weeks from today. List there
after.
(Parveen Kr. Chawla) (Phoolan Wati Arora)
Court Master Assistant
Registrar
------------------------------------------------------------------------------------------------------------------------------
ITEM
NO.6 COURT NO.5 SECTION PIL S U P R E M E C O U R T O F I N D I A RECORD OF
PROCEEDINGS
Writ
Petition(s)(Civil) No(s). 881/2014 GAURI MAULEKHI Petitioner(s) VERSUS UNION OF
INDIA AND ORS.
Respondent(s)
(with appln. (s) for directions and office report)
Date : 05/01/2015
This
petition was called on for hearing today.
CORAM :
HON'BLE
MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE
MR. JUSTICE S.A. BOBDE
For Petitioner(s) Mr. Anand Grover, Sr. Adv. Mr. Mihir
Samson, Adv. Ms. Nitya Rajashekhar, Adv. for Mr. Purushottam Sharma Tripathi,
AOR For Respondent(s) Mr. Ranjit Kumar, SG Ms. Binu
Tamta, Adv. Mr. Sridhar Potaraju, Adv. Mr. Kalyan Kr. Bandopadhyay, Sr. Adv.
Mr. Saakaar Sardana, Adv. For Mr. Anip Sachthey,AOR Mr. Manish Kumar, Adv. Ms.
Rashmi Shrivastava, Adv. For Mr. Gopal Singh,AOR Mr. Gaurav Bhatia, AAG Mr.
Shantanu Krishna, Adv. For Mr. Samir Ali Khan,AOR Ms. Rachana Srivastava,Adv.
Mr. Utkarsh Sharma, Adv.
UPON hearing the counsel the Court made the
following O R D E R Learned counsel for the State of West Bengal seeks liberty
to file compliance affidavit. Prayer is allowed. 2 Compliance affidavit filed
in Court is taken on record. Learned counsel representing the States of Uttar
Pradesh, Uttarakhand as also the Union of India seek further adjournment, so as
to enable them to file complete suggestions for a long term solution. Prayer is
allowed. Suggestions may be filed in the Registry of this Court within four
weeks from today. Similar suggestions may be filed on behalf of the petitioner
as well. List after four weeks.
(Parveen
Kr. Chawla) (Renuka Sadana)
Court
Master Court Master
---------------------------------------------------------------------------------------------------------------------------
WP(C)No.881/14
ITEM NO.1 COURT NO.4 SECTION PIL
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil)
No(s).881/2014
GAURI MAULEKHI Petitioner(s)
VERSUS
UNION OF INDIA AND ORS.
Respondent(s)
(With appln.(s) for directions
and office report)
Date : 16/03/2015 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE S.A. BOBDE
For Petitioner(s) Mr.Anand
Grover, Sr.Adv.Mr.Mihir Samson, Adv.Mr. Purushottam Sharma Tripathi,
Adv.Mr.Mukesh Kumar Singh, Adv.Ms.Nithya Rajshekhar,Adv..Filza Moonis, Adv.
Mr.Narendra Kumar Goyal,
Adv.Mr.Ravi Chandra Prakash, Adv.
For Respondent(s) Mr.Kalyan
Bandopadhyay, Sr.Adv.Mr. Anip Sachthey, Adv.Mr.Kabir Shankar Bose,
Adv.Mr.Saakaar Sardana, Adv.Mr.Gaurav Bhatia, AAGMr. Samir Ali Khan,
Adv.Ms.Vimla Sinha, Adv.
Mr.S.N.Terdal, Adv.Ms.Binu
Tamta, Adv.Mr. Gopal Singh, Adv.Mr.Shivam Singh, Adv.Ms.Rashmi Srivastava,
Adv.Mr.Sridhar Potaraju, Adv.Ms. Rachana Srivastava, Adv.Mr.Utkarsh Sharma,
Adv.
Upon hearing the counsel the Court made the following
O R D E R
Even though respondent No.2 has
filed an affidavitindicating certain suggestions, we are of the view that
equally appropriate suggestions have been made by the participating States who
are already party respondents in this case.
In view of the above, we consider
it just and appropriate to direct respondent No.2 to convene a joint meeting of
the respondent States wherein the petitioner or his representatives may
also participate so as to evolve
a comprehensive future plan to effectively deal with the issue in hand. The
aforementioned meeting be convened within two weeks from today. The proposed
suggestions shall be submitted
to this Court within two weeks there after.
List there after.
(SATISH KUMAR YADAV) (RENU DIWAN)
COURT MASTER
-----------------------------------------------------------------------------------------------------------------------------------
ITEM NO.302 & 303 COURT NO.6
SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO(S). 562/2012
ASSAM SANMILITA MAHASANGHA & ORS. PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. RESPONDENT(S)
(OFFICE REPORT) WITH W.P.(C) NO.
876/2014
(WITH APPLN.(S) FOR STAY AND
OFFICE REPORT)
W.P.(C) NO.274/2009[WITH APPLN.(S) FOR DIRECTIONS
AND IMPLEADMENT AND INTERVENTION AND OFFICE REPORT]
Date : 31/03/2015 These petitions were called on for
hearing today.
CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
For Petitioner(s)
WP(C) 562/12 Mr. Manish Goswami,
Adv.Mr. Rameshwar Prasad Goyal, Adv.
WP(C) 876/14 & rr inWP(C)
562/12 Mr. Somiran Sharma, Adv.WP(C) 274/09 Mr. Arvind Kumar Sharma, Adv.Ms.
Ankita Sharma, Adv.
For Respondent(s) Mr. Milan
Laskar, Adv.Mr. Syed Mehdi Imam, Adv.Mr. Parvez Dabas, Adv.Mr. Shibashish
Misra, Adv.Mr. Fuzail Ahmad Ayyubi, Adv.Mr. Abdul Qadir, Adv.Mr. Anas Tanwir,
Adv.Mr. Abdul Qadir Abbasi, Adv.Mr. Anwesha Shah, Adv.Mr. Syed Ali Ahmad,
Adv.Mr. Syed Tanweer Ahmad, Adv.Mr. S.S. Bandyopadhyay, Adv.Mr. Pravin Kumar,
Adv.Mr. Mohan Pandey, Adv.Mr. Shakil Ahmed Syed, Adv.Mr. Shadan Farasat,
Adv.Ms. Krishna Sarma, Adv.Mr. Avijit Roy, Adv.Mr. Navnit Kumar, Adv.Ms. Kankana
Arandhara,Adv.For M/s Corporate Law GroupMr. B. Krishna Prasad, Adv.Mr. Prateek
Jalan, Adv.Ms. Malvika Trivedi, Adv.Mr. Rahul Kriplani, Adv.Mr. Ankit Yadav,
Adv.Mr. T. Mahipal, Adv.Mr. Monisha Handa, Adv.Mr. Mohit D. Ram, Adv.Mr. Neeraj
Kumar, Adv.Mr. Soumitra G. Chaudhuri, Adv.Mr. Anip Sachthey, Adv.Mr. G.S.
Chatterjee, Adv.Mr. Neeraj Kishan Kaul, ASGMr. Shiv Mangal Sharma, Adv.Mr.
Puneet Parihar, Adv.Mr. Raghavendra M. Bajaj, Adv.Ms. Rashmi Malhotra, Adv.Ms.
Sushma Suri, Adv.Mr. Shreekant N. Terdal, Adv.Ms. Bharti Tyagi, Adv.Mr. Ravi P.
Mehrotra, Adv.Mr. Siddharth Bhatnagar, Adv.Mr. Sidharth Mohan, Adv.Mr. Rahul
Arya, Adv.Mr. Nirnimesh Dube, Adv.Mr. K.V. Jagdishvaran, Adv.Ms. G. Indira,
Adv.
UPON hearing the counsel the
Court made the following
O R D E R
The affidavits filed on behalf
of the State of Assamare highly unsatisfactory. The affidavits not only
arevague and omnibus in content but have been executed by a Junior Officer who
may not have had any exposure to theground realities. We, therefore, refuse to
take the said affidavits into consideration and while expressing our displeasure
at the conduct of the State of Assam, we direct the Chief Secretary of the
State of Assam to file a meaningful affidavit incorporating all relevant facts,
particularly, the steps that have been taken pursuant to the Court's order
dated 17th December, 2014. The said affidavit
shall be filed within 10 days from today.
Insofar as the up gradation of
the NRC is concerned, we direct the NRC Coordinator to file an affidavit with regard
to the progress in the preparation of NRC keeping in mind the deadline set by
the Court for publication of the final NRC. The said Officer shall also
indicate the difficulties, if any, that he may have encountered in updating the
NRC in terms of the orders of this Court.
The NRC Coordinator is directed
to be personally present in Court on the next date fixed which will be intimated
to him by the Registry.
In so far the Union of India is
concerned, Shri Neeraj Kishan Kaul, learned Additional Solicitor General has assured
the Court that an affidavit of the Competent Authority will be filed within 10
days indicating the steps that have been take by the Union with regard to border
fencing, construction of border roads, night patrolling, flood-lights, scheme
for deportation in consultation with the Bangladesh etc. in terms of the order of
the Court dated 17th December, 2014.
The Gauhati High Court is
requested to expedite the process of selection of the Presiding Officers and
Members of the 64 Tribunals which have been sanctioned by the Government of
India so that the said Tribunals can become functional immediately. This order
be communicated to the Registrar General
of the High Court forthwith.
[VINOD LAKHINA] [ASHA SONI]
COURT MASTER
COURT MASTER
---------------------------------------------------------------------
REPORTABLE
IN THE SUPREME
COURT OF INDIA
CIVIL
ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 562
OF 2012
Assam
Sanmilita
Mahasangha &
Ors.
...Petitioners
Versus
Union of India &
Ors.
...Respondents
WITH
WRIT PETITION (CIVIL) NO. 274
OF 2009
Assam
Public
Works
...Petitioner
Versus
Union of India &
Ors.
...Respondents
WITH
WRIT PETITION (CIVIL) NO. 876
OF 201
All Assam Ahom
Association & Ors.
...Petitioners
Versus
Union
of
India &
Ors.
...Respondents
J U D G M E N T
R.F. Nariman, J.
1. A
Prophet is without honour in his own country. Substitute
'citizen'for 'prophet' and you will get the gist of the various writ
petitions filed under Article 32 of the Constitution of India assailing
Section 6A of the Act.
2. It all
began when the Burmese ceded Assam to the British
on 24thFebruary, 1826 as per the treaty of Yandabo, thus bringing
to an end Ahomrule in Assam which had begun sometime in the
13th century. The Britishannexed Assam and
placed it as an administrative unit
of the Bengal
Province. As early as
1931, C.S. Mullan, the Census Superintendent in his census
report stated:
"Probably the most
important event in the province during the last 25 years-an event, moreover,
which seems likely to alter permanently the
whole feature of Assam and to destroy the whole structure of Assamese
culture and civilization has been the invasion
of a vast horde of land-hungry immigrants
mostly Muslims, from the districts of
East Bengal. ...
Where so ever the
carcass, there the vultures will gathered
together " (Politics of Migration by Dr. Manju
Singh, Anita Publications, Jaipur,1990, Page 59)
3. In 1935,
when the Government of India Act was promulgated, Assam was,under Section
46(1), stated to be a Governor's province. It was in
this scenario that the Foreigners Act of 1946 was enacted under which the
burden of proving whether a person is or is not a foreigner lies upon such
person.
At the
commencement of the Constitution of India, Article 5 stated
that every person who has his domicile in the territory of
India and who was either born in the territory of India;
or either of whose parents were born in the territory of India; or
who has been ordinarily resident in
the territory of India for not less than 5 years
immediately preceding such commencement shall be a citizen of
India. As an exception, Article 6,which is
important for the determination of some of the questions
arising in these writ petitions, states as follows:
"Rights of citizenship of certain persons who
have migrated toIndia from Pakistan. --Notwithstanding
anything in Article 5, a person whohas migrated to the territory of
India from the territory now included inPakistan shall be
deemed to be a citizen of India at the commencement ofthis Constitution if
(a) he or either of his
parents or any of his grand-parents was born
inIndia as defined in the Government of India
Act, 1935 (as originally enacted); and
(b)(i) in the case where
such person has so migrated before the nineteenth day of July, 1948
, he has been ordinarily resident in the territory
of India since the date of his migration, or
(ii) in the case
where such person has so migrated on
or after the nineteenth day of July, 1948 , he has been
registered as a citizen of India by an officer appointed in that behalf
by the Government of the Dominion of India on an application made by him
there for to such officer before the
commencement of this
Constitution in the form and manner prescribed by that Government:
Provided that no person shall be so registered unless he
has been resident in the territory of India or at least six months
immediately preceding the date of his application."
4. 19th
July, 1948, therefore, became the baseline for such persons
as were referred to in Article 6 for being citizens of India.
5. At this
stage, the Immigrants (Expulsion from Assam) Act, 1950
was enacted to protect the indigenous inhabitants of Assam. The
statement of objects and reasons of this Act says
"during the last
few months a serious situation had
arisen from the immigration of a very large number of
East Bengal residents into Assam.
Such large migration is
disturbing the economy of the province, besides giving
rise to a serious law and order problem. The bill seeks to
confer necessary powers on the Central Government to deal with the
situation."
6. In
pursuance of this object, Sections 2 and 4 of this Act which also have
a bearing on some of the issues raised in these petitions
state as follows:
"2. Power to order
expulsion of certain immigrants.-
If the Central
Government is of opinion that any person
or class of persons, having been ordinarily resident in any
place outside India, has orhave, whether before or after the commencement
of this Act, come into Assam and that the stay of
such person or class of persons in
Assam is detrimental to the interests of the general
public of India or of any section thereof
or of any Scheduled Tribe in Assam, the Central Government may by
order--
(a) direct such person
or class of persons to remove himself or themselves from India or
Assam within such time and by such route as may be specified in the
order; and
(b) give such further
directions in regard to his or their removal from
India or Assam as it may consider necessary or expedient;
Provided that nothing in
this section shall apply to any person who
on account of civil disturbances or the fear of such disturbances in
any area now forming part of Pakistan has been displaced from or
has left his place of residence in such area and who has been
subsequently residing in Assam.
4. Power to give effect
orders, etc.-
Any authority empowered
by or in pursuance of the provisions of this Act to exercise any power
may, in addition to any other action expressly provided for in this
Act, take or cause to be taken such steps, and use or cause to be
used such force, as may in its opinion be reasonably necessary for
the effective exercise of such power."
7. It was
during the census of 1951 that a National Register of Citizens was
prepared under a directive of the Ministry of Home Affairs
containing information village-wise of each and
every person enumerated therein.
Details such as the
number and names of persons, the houses or
holdings belonging to them, father's name or husband's name,
nationality, age, the means of livelihood were all indicated
therein.
8. Between
1948 and 1971, there were large scale migrations from
East Pakistan to Assam.
As is well known, West Pakistan commenced hostilities against East Pakistan on
25th March, 1971 culminating in the war
which dismembered the
two parts of Pakistan and in which
a new nation, Bangladesh, was
born. It is interesting to note that immediately after the successful culmination
of the war in Bangladesh, on 19th March, 1972, a treaty for friendship,
co-operation and peace was signed between India and Bangladesh.
Article 8 of the said treaty is in the following terms:
"In accordance
with the ties of friendship existing
between the two
countries each of the
High Contracting Parties solemnly declares that it
shall not enter into
or participate in any military alliance
directed
against the other party.
Each of the High Contracting Parties shall refrain
from any aggression
against the other party and shall not allow the use of
its territory for
committing any act that may cause military damage to or
constitute a threat to
the security of the other High Contracting Party"
9. Given
the continuing influx of illegal migrants from Bangladesh into
Assam, the All Assam
Students Union first submitted a memorandum to
the
then Prime Minister of
India (in 1980) inviting her urgent attention to
this issue. As a
result of such representations, Parliament enacted the
Illegal Migrants
(Determination by Tribunal) Act, 1983. This Act was made
applicable only to Assam
and was expected to be a measure which speeded up
the determination of
illegal migrants in the State of Assam with a view to
their deportation.
10. Not being
satisfied with this parliamentary measure, and in view of
large scale agitations
in the State of Assam, an accord was signed known as
the "Assam
Accord" on 15th August, 1985 between the AASU, AAGSP
and the
Central and the
State Governments. This Accord is worth
quoting in
extenso:
"ASSAM ACCORD
15th August, 1985
(Accord between AASU,
AAGSP, Central and State Government on the Foreigner
Problem Issue)
MEMORANDUM OF SETTLEMENT
1. Government
have all along been most anxious to find a
satisfactory
solution to the problem
of Foreigners in Assam. The All Assam Students'
Union (AASU) and the All
Assam Gana Sangram Parishad (AAGSP) have
also
expressed their Keenness
to find such a solution.
2. The AASU through
their Memorandum dated 2nd February, 1980 presented to
the Late Prime Minister
Smt. Indira Gandhi, conveyed their profound sense
of apprehensions
regarding the continuing influx of foreign nationals into
Assam and the fear
about adverse affects upon the political,
social,
cultural and economic
life of the State.
3. Being fully alive to
the genuine apprehensions of the people of Assam,
the then
Prime Minister initiated the dialogue with
the AASU/AAGSP.
Subsequently, talks were
held at the Prime Minister's and Home Ministers
levels during the period
1980-83. Several rounds of informal talks were
held during 1984. Formal
discussions were resumed in March, 1985.
4. Keeping all aspects
of the problem including constitutional and legal
provision, international
agreements, national commitments and humanitarian
considerations, it has
been decided to proceed as follows :-
Foreigners Issue:
1. For purpose of
detection and deletion of foreigners, 1-1-1966 shall be
the base date and year.
2. All persons who came
to Assam prior to 1-1-1966, including those amongstthem whose names
appeared on the electoral rolls used in 1967 elections,
shall be regularized.
3. Foreigners who came
to Assam after 1-1-1966 (inclusive) and up to 24th
March, 1971 shall be detected in accordance with the
provisions of the Foreigners Act, 1946 and the Foreigners
(Tribunals) Order, 1939.
4. Names of foreigners
so detected will be deleted from the electoral rolls in force. Such
persons will be required to register themselves before the Registration
Officers of the respective districts in accordance with
the provisions of the Registration of Foreigners Act, 1939 and the
Registration of Foreigners Rules, 1939.
5. For this
purpose, Government of India will
undertake suitable strengthening of the governmental machinery.
6. On the expiry of the
period of ten year following the date of detection,
the names of all such persons
which have been deleted from the electoral
rolls shall be restored.
7. All persons
who were expelled earlier, but have
since re-entered
illegally into Assam,
shall be expelled.
8. Foreigners who came
to Assam on or after March 25, 1971 shall continue
to be detected, deleted
and expelled in accordance with the law. Immediate
and practical steps
shall be taken to expel such foreigners.
9. The Government
will give due consideration to certain
difficulties
express by the AASU/AAGSP
regarding the implementation of the Illegal
Migrants (Determination
by Tribunals) Act, 1983.
Safeguards and Economic
Development:
6. Constitutional,
legislative and administrative safeguards, as may
be
appropriate, shall
be provided to protect, preserve and
promote the
cultural, social,
linguistic identity and heritage of the Assamese people.
7. The Government takes
this opportunity to renew their commitment for the
speedy all round
economic development of Assam, so as to
improve the
standard of living of
the people. Special emphasis will be placed on the
education and
Science & Technology through establishment
of national
institutions.
Other Issues:
1. The Government will
arrange for the issue of citizenship certificate in
future only by the
authorities of the Central Government.
2. Specific complaints
that may be made by the AASU/AAGSP about irregular
issuance of Indian
Citizenship Certificates (ICC) will be looked into.
1. The
international border shall be made secure
against future
infiltration by
erection of physical barriers like walls
barbed wire
fencing and other
obstacles at appropriate places. Patrolling by security
forces on land and
riverine routes all along the international border shall
be adequately
intensified. In order to further strengthen the
security
arrangements, to
prevent effectively future infiltration, an
adequate
number of check posts
shall be set up.
2. Besides the
arrangements mentioned above and keeping in view
security
considerations, a
road all along the international border
shall be
constructed so as to
facilitate patrolling by security forces. Land between
border and the road
would be kept free of human habitation,
wherever
possible. Riverine
patrolling along the international border
would be
intensified. All
effective measures would be adopted to
prevent
infiltrators crossing or
attempting to cross the international border.
10. It will be
ensured that relevant laws for prevention of encroachment
of government lands and
lands in tribal belts and blocks are
strictly
enforced and
unauthorized encroachers evicted as laid down under such laws.
11. It will be
ensured that the law restricting acquisition of immovable
property by foreigners
in Assam is strictly enforced.
12. It
will be ensured that Birth and Death
Registers are duly
maintained.
Restoration of Normalcy:
13. The All Assam
Students Unions (AASU) and the All Assam Gana
Sangram
Parishad (AAGSP) call
off the agitation, assure full co-operation
and
dedicate themselves
towards the development of the Country.
14. The Central and the
State Government have agreed to:
1. Review with sympathy
and withdraw cases of disciplinary action taken
against employees in the
context of the agitation and to ensure that there
is no victimization;
2. Frame a scheme
for ex-gratia payment to next of kin of those who were
killed in the course in
the agitation.
3. Give
sympathetic consideration to proposal for relaxation of upper age
limit for
employment in public service in Assam,
having regard to
exceptional situation
that prevailed in holding academic and competitive
examinations etc. in the
context of agitation in Assam:
4. Undertake
review of detention cases, if any, as well as cases against
persons charged with
criminal offences in connection with the agitation,
except those charged
with commission of heinous offences.
5. Consider withdrawal
of the prohibitory orders/ notifications in force,
if any:
15. The Ministry of
Home Affairs will be the nodal
Ministry for the
implementation of the
above.
Sd/-
Sd/-
(P.K.
Mahanta)
(R.D.Pradhan)
President
Home
Secretary
All Assam Students'
Union
Government of India
Sd/-
Sd/-
(B.K. Phukan)
(Smt. P. P.Trivedi)
General Secretary
Chief Secretary
All Assam Students'
Union Government
of Assam
Sd/-
(Biraj Sharma)
Convenor
All Assam Students'
Union
In
the
Presence of
Sd/-
(Rajiv
Gandhi)
Prime Minister
of India
Date: 15th August, 1985
Place: New Delhi"
11. It was in
pursuance of this accord that Section 6A was inserted
inthe Citizenship Act in 1985. The Statement of Objects and
Reasons of theAct specifically states that it is legislation
required to give effect tothe Assam Accord. Section 6A
states as follows:
"6A. Special
provisions as to citizenship of persons covered by the Assam Accord.-
(1) For the purposes of
this section-
(a)
"Assam" means the territories included
in the State of Assam immediately before the
commencement of the Citizenship (Amendment) Act, 1985;
(b) "detected to be
a foreigner" means detected to be a
foreigner in accordance with the provisions of the Foreigners Act,
1946 (31 of 1946) and the Foreigners (Tribunals) Order, 1964 by a
Tribunal constituted under the said Order;
(c) "specified
territory" means the territories included in
Bangladesh immediately before the commencement of the
Citizenship (Amendment) Act, 1985;
(d) a person shall be
deemed to be of Indian origin, if he, or either of
his parents or any of
his grandparents was born in undivided India;
(e) a person shall be
deemed to have been detected to be a foreigner on the date on which
a Tribunal constituted under the Foreigners
(Tribunals) Order, 1964 submits its opinion to the effect that he is a
foreigner to the officer or authority concerned.
(2) Subject to the
provisions of sub-sections (6) and (7), all persons of
Indian origin who came
before the 1st day of January, 1966 to Assam from
the specified territory
(including such of those whose names were included
in the electoral rolls
used for the purposes of the General Election to the
House of the People held
in 1967) and who have been ordinarily resident in
Assam since the dates of
their entry into Assam shall be deemed to
be
citizens of India as
from the 1st day of January, 1966.
(3) Subject to the
provisions of sub-sections (6) and (7), every person of
Indian origin who-
(a) came to Assam on or
after the lst day of January, 1966 but before the
25th day of March, 1971
from the specified territory; and
(b) has, since the date
of his entry into Assam, been ordinarily resident
in Assam; and
(c) has been detected to
be a foreigner,
shall register himself
in accordance with the rules made by the Central
Government in this
behalf under section 18 with such authority (thereafter
in this sub-section
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 on such reference.
(4) A person registered
under sub-section (3) shall have, as from the date
on which he has been
detected to be a foreigner and till the expiry of a
period of ten years from
that date, the same rights and obligations as a
citizen of India
(including the right to obtain a passport
under the
Passports Act, 1967 (15
of 1967) and the obligations connected therewith),
but shall not be
entitled to have his name included in any electoral roll
for any Assembly or
Parliamentary constituency at any time
before the
expiry of the said
period of ten years.
(5) A person registered
under sub-section (3) shall be deemed to be
a
citizen of India for all
purposes as from the date of expiry of a period of
ten years from the date
on which he has been detected to be a foreigner.
(6) Without prejudice to
the provisions of section 8,-
(a) if any person
referred to in sub-section (2) submits in the prescribed
manner and form and to
the prescribed authority within sixty days from the
date of commencement of
the Citizenship (Amendment) Act, 1985, for year a
declaration that he does
not wish to be a citizen of India, such person
shall not be deemed to
have become a citizen of India under that
sub-
section;
(b) If any person
referred to in sub-section (3) submits in the prescribed
manner and form and to
the prescribed authority within sixty days from the
date of commencement the
Citizenship (Amendment) Act, 1985, for year or
from the date on which
he has been detected to be a foreigner, whichever is
later, a declaration
that he does not wish to be governed by the provisions
of that sub-section and
sub-sections (4) and (5), it shall not be necessary
for such person to
register himself under sub-section (3).
Explanation.-Where a
person required to file a declaration under this sub-
section does
not have the capacity to enter into
a contract, such
declaration may be filed
on his behalf by any person competent under the
law for the time being
in force to act on his behalf.
(7) Nothing in
sub-sections (2) to (6) shall apply in relation
to any
person-
(a) who, immediately
before the commencement of the Citizenship (Amendment)
Act, 1985, for year is a
citizen of India;
(b) who was expelled
from India before the commencement of the Citizenship
(Amendment) Act, 1985,
for year under the Foreigners Act, 1946 (31
of
1946).
(8) Save as otherwise
expressly provided in this section, the provisions of
this section shall have
effect notwithstanding anything contained in any
other law for the time
being in force."
12. It will be
seen that as part of the Assam Accord, a huge number of
illegal migrants were
made deemed citizens of India. It is interesting to
note that Parliament has
not enacted any law pertaining to refugees from
other countries. Refugee
status can be granted and has been granted
in
India through executive
orders passed by the Central Government. In any
case, Section 6A did not
merely rest content with granting refugee status
to those who were
illegal migrants from East Pakistan but went on to grant
them the benefit of
citizenship of India so that all persons
who had
migrated before 1966 and
all persons who migrated before 25th March, 1971
respectively were to
become citizens of India either immediately or as is
mentioned by the Act
after a period of 10 years once there has
been a
determination that they
have in fact settled in India between 1966
and
1971.
13. On 8th of
November, 1998, Lieutenant General S.K. Sinha, the
then
Governor of Assam,
submitted an extensive report to the then President of
India on the grave
threat posed by the influx of people from Bangladesh to
Assam. He said:
"The
dangerous consequences of large scale
illegal migration from
Bangladesh, both for the
people of Assam and more for the Nation as
a
whole, need to be
empathetically stressed. No misconceived and
mistaken
notions of secularism
should be allowed to come in the way of doing so.
As a result of
population movement from Bangladesh, the spectre looms large
of the indigenous people
of Assam being reduced to a minority in their home
state. Their cultural
survival will be in jeopardy, their political control
will be weakened
and their employment opportunities will be undermined.
The silent and invidious
demographic invasion of Assam may result in the
loss of the
geo-strategically vital districts of lower Assam. The influx of
illegal migrants is
turning these districts into a Muslim majority region.
It will then only be a
matter of time when a demand for their merger with
Bangladesh may
be made. The rapid growth of
international Islamic
fundamentalism may
provide the driving force for this demand.
In this
context, it is pertinent
that Bangladesh has long discarded secularism and
has chosen to become an
Islamic State. Loss of lower Assam will severe the
entire land mass of the
North East, from the rest of India and the rich
natural resources of
that region will be lost to the Nation."
14. It was in
this backdrop that a writ petition being Writ Petition No. 131 of
2000 was filed by Sarbananda Sonowal assailing the
Constitutional validity of "The Illegal Migrants (Determination by
Tribunals) Act, 1983" and the rules made there under.
15. In a judgment
reported in (2005) 5 SCC 665, this Court referred to
the Assam Accord and to
the huge influx of illegal migrants into the State
of Assam and came to the
conclusion that the 1983 Act and the rules made
thereunder operated in
the reverse direction i.e. instead of seeing that
illegal migrants are
deported, it did the opposite by placing the burden of
proof on the State to
prove that a person happens to be an illegal migrant.
This Court went on
to hold that Article 355 of the Constitution had been
violated, in as much as
the Union had failed to protect the State of Assam
against the external
aggression and internal disturbance caused by the huge
influx of illegal
migrants from Bangladesh to Assam and went on to hold the
1983 Act to be violative
of Article 14 as well. In as much as this Act was
struck down, the
Immigrants (Expulsion from Assam) Act 1950 together with
the Foreigners Act and
the Foreigners Tribunal Order of 1964 were now to be
the tools in the hands
of Government to do the job of detecting illegal
migrants who were then
to be deported.
16. On 14th July,
2004, in response to an unstarred question pertaining
to deportation of
illegal Bangladeshi migrants, the Minister of State, Home
Affairs, submitted a
statement to Parliament indicating therein that the
estimated number of
illegal Bangladeshi immigrants into India as on 31st
December, 2001 was 1.20
crores, out of which 50 lakhs were in Assam.
17. Given the
magnitude of the problem, a Foreigners
(Tribunals for
Assam) Order of 2006 was
promulgated which was again struck down
being
found to be unreasonable
and arbitrary and which instead of expeditiously
discovering illegal
migrants and deporting them, again did the opposite. It
was in (2007) 1 SCC 174,
in the second Sonowal writ petition, that
the
Supreme Court struck
down this order.
18. In the year
2012 and in 2014 large scale riots took place in Assam
resulting in the deaths
of a large number of persons. It is
in this
background that the
present writ petitions have been filed.
19. A
preliminary submission was urged by the
learned Additional
Solicitor General of
India Mr. Neeraj Kaul that Section 6A having
been
enacted in 1985, a
challenge made in 2012 would be barred by delay
and
laches. We will
first advert to this preliminary submission in order to
see whether we will
proceed further to determine the issues raised in these
writ petitions.
20. Writ Petition
(Civil) No. 562 of 2012 which was taken up by us first
contains the following
prayers:
"a) a writ in the
nature of Certiorari or any other appropriate writ(s),
order(s) or direction(s)
declaring Section 6A of The Citizenship Act, 1955
as discriminatory,
arbitrary and illegal and consequently striking down the
impugned provision as
ultra-vires the Constitution of India;
b) a writ in the nature
of Mandamus or any other appropriate
writ(s),
order(s) or direction(s)
directing the respondent no.1 and 3 not to update
the National Register of
Citizens with respect to the State of Assam by
taking into account the
electoral rolls prior to March 24th
(midnight)
1971;
c) a writ in the nature
of Mandamus or any other appropriate
writ(s),
order(s) or direction(s)
directing the respondent no 1 and 3 to update the
National Register of
Citizens with respect to the State of Assam relying
only on the details
incorporated in the National Register of
Citizens
prepared in 1951 ;
d) a writ in the nature
of Mandamus or any other appropriate
writ(s),
order(s) or direction(s)
directing the respondents to treat 1951 as the
base year
for the purpose of detection and
deportation of illegal
immigrants in the State
of Assam;
e) a writ in the nature
of Mandamus or any other appropriate
writ(s),
order(s) or
direction(s) directing the respondents no 1
and 2 to
immediately take
effective steps towards ensuring the deportation of the
illegal immigrants from
the territory of India;
f) Issue Rule Nisi in
terms of prayers (a), (b), (c), (d) and (e) above;
g) Pass such other
further or other writ, orders or directions as
your
Lordships may deem fit
and proper in the facts and circumstances of the
instant case."
21. Article 32 of
the Constitution which has been described as the "heart
and soul" of the
Constitution guarantees the right to move the
Supreme
Court for the
enforcement of all or any of the fundamental rights conferred
by Part III of the
Constitution. This Article is, therefore, itself
a
fundamental right and it
is in this backdrop that we need to address the
preliminary submission.
22. In
Tilokchand Motichand v. H.B. Munshi (1969)
1 SCC 110, a
Constitution Bench was
asked to decide on the Constitutional validity of
Section 12A (4) of the
Bombay Sales Tax Act. The precise
ground for
challenge was a
violation of Article 19(1)(f) of the
Constitution. A
majority of three out of
five Judges held that the petition was hit by the
doctrine of laches and
hence dismissed the petition. In so holding, each
of the Judges arrived
at differing reasons as to why
petitions under
Article 32 ought
to be dismissed on the ground of
delay/laches. In
paragraphs 9, 10 and 11
Hidayatullah, C.J., held:
"9. In India we
have the Limitation Act which prescribes different periods
of limitation
for suits, petitions or applications. There
are also
residuary articles which
prescribe limitation in those cases where
no
express period is
provided. If it were a matter of a suit or application,
either an appropriate
article or the residuary article would have applied.
But a petition under
Article 32 is not a suit and it is also not a petition
or an application to which
the Limitation Act applies. To put curbs in the
way of enforcement of
Fundamental Rights through legislative action might
well be questioned under
Article 13(3). The reason is also quite clear. If
a short period of
limitation were prescribed the Fundamental Right might
well be frustrated.
Prescribing too long a period might enable stale claims
to be made to the
detriment of other rights which might emerge.
10. If then there is no
period prescribed what is the standard for this
Court to follow? I
should say that utmost expedition is
the sine qua
non for such
claims. The party aggrieved must move the
Court at the
earliest possible time
and explain satisfactorily all semblance of delay. I
am not indicating any
period which may be regarded as the ultimate limit of
action for that would
be taking upon myself legislative
functions. In
England a period of 6
months has been provided statutorily, but that could
be because there is no
guaranteed remedy and the matter is one entirely of
discretion. In India I
will only say that each case will
have to be
considered on its own
facts. Where there is appearance of avoidable delay
and this delay affects
the merits of the claim, this Court will consider it
and in a proper case
hold the party disentitled to invoke the extraordinary
jurisdiction.
11. Therefore, the
question is one of discretion for this Court to follow
from case to case. There
is no lower limit and there is no upper limit. A
case may be brought
within Limitation Act by reason of some article
but
this Court need not
necessarily give the total time to the litigant to move
this Court under Article
32. Similarly in a suitable case this Court may
entertain such a
petition even after a lapse of time. It will all depend on
what the breach of the
Fundamental Right and the remedy claimed are when
and how the delay
arose."
Justice Sikri held as follows:
"18. It seems
to me, however, that the above
solution is not quite
appropriate for
petitions under Article 32. A delay of 12 years or 6 years
would make a strange
bed-fellow with a direction or order or writ in the
nature of mandamus,
certiorari and prohibition. Bearing in mind the history
of these writs I cannot
believe that the Constituent Assembly had
the
intention that five
Judges of this Court should sit together to enforce a
fundamental right
at the instance of a person, who
had without any
reasonable explanation
slept over his rights for 6 or 12 years. The history
of these writs both
in England and the U.S.A. convinces
me that the
underlying idea of the
Constitution was to provide an expeditious
and
authoritative remedy
against the inroads of the State. If a claim is barred
under the Limitation
Act, unless there are exceptional circumstances, prima
facie it is a stale
claim and should not be entertained by this Court. But
even if it is not barred
under the Indian Limitation Act, it may not be
entertained by this
Court if on the facts of the case there is unreasonable
delay. For instance, if
the State had taken possession of property under a
law alleged to be void,
and if a petitioner comes to this Court 11 years
after the possession was
taken by the State, I would dismiss the petition
on the ground of delay,
unless there is some reasonable explanation. The
fact that a suit for
possession of land would still be in time would not be
relevant at all. It is
difficult to lay down a precise period beyond which
delay should be
explained. I favour one year because this Court should not
be approached lightly,
and competent legal advice should be taken and pros
and cons carefully
weighed before coming to this Court. It
is common
knowledge that appeals
and representations to the higher authorities take
time; time spent in
pursuing these remedies may not be excluded under the
Limitation Act, but it
may ordinarily be taken as a good explanation for
the delay.
30. In my opinion the
petitioner was under a mistake of law, when he paid
up, the mistake being
that he thought that Section 12-A(4) was a
valid
provision in spite of
its imposing unreasonable restrictions. This mistake
he discovered like all
assessees when this court struck down Section 12-
A(4) of the Bombay Sales
Tax Act. He has come to this Court within
six
months of that day and
there is no delay".
Bachawat J., held as follows:
"41. Similarly this
Court acts on the analogy of the statute of limitation
in respect of a claim
under Article 32 of the Constitution though
such
claim is not the subject
of any express statutory bar of limitation. If the
right to a property is
extinguished by prescription under Section 27 of the
Limitation Act, 1963,
the petitioner has no subsisting right which can be
enforced under Article
32 (see Sobbraj Odharmal v. State of
Rajasthan)
[(1963) Supp (1) SCR 99,
111] . In other cases where the remedy only and
not the right is
extinguished by limitation, it is on grounds of the public
policy that the court
refuses to entertain stale claims under Article 32.
The statutes of
limitation are founded on sound principles
of public
policy. As observed in
Whitley Stoke's Anglo-Indian Codes, Vol. 11, p. 940;
"The law is founded
on public policy, its aim being to secure the quiet of
the community, to
suppress fraud and perjury, to quicken diligence, and to
prevent
oppression". In Her Highness
Ruckmaboye v. Luloobhoy
Mottickchund [(1851-52)
5 MIA 234, 251] the Privy Council observed that the
object of the statutes
of limitation was to give effect to the
maxim,
"interest
reipublicoe ut sit finis litium" (co litt 303) the
interest of
the State requires that
there should be a limit to litigation. The rule
of res judicata is
founded upon the same rule of
public policy,
see Daryao v. State of
U.P. at p. 584. The other ground of public policy
upon which the statutes
of limitation are founded is expressed in the maxim
"vigilantibus non
dormientibus jura subveniunt" (2 Co Inst. 690) the laws
aid the vigilant and not
those who slumber. On grounds of public policy the
court applies
the principles of res judicata to writ
petitions under
Article 32. On like
grounds the court acts on the analogy of the statutes
of limitation in the
exercise of its jurisdiction under Article
32. It
follows that the present
petition must be dismissed"
Mitter J., held as
follows:
"66. In my view, a
claim based on the infraction of fundamental
rights
ought not to be
entertained if made beyond the period
fixed by the
Limitation Act for the
enforcement of the right by way of suit. While not
holding that the
Limitation Act applies in terms, I am of the view
that
ordinarily the period
fixed by the Limitation Act should be taken to be a
true measure of the time
within which a person can be allowed to raise a
plea successfully under
Article 32 of the Constitution. "
The sole dissentient was
Hegde, J., who decided that Article 32
itself
being a fundamental
right, there is no question of delay being used to non-
suit a petitioner at the
threshold. His minority view is as follows:
"75. There has been
some controversy whether an aggrieved party can waive
his fundamental
right. That question was elaborately
considered
in Basheshar Nath v.
CIT, Delhi, Rajasthan [(1959) Supp (1) SCR 528] by a
Constitution Bench
consisting of S.R. Das, C.J., and Bhagwati, S.K. Das,
J.L., Kapur and Subba Rao,
JJ. The learned Chief Justice and Kapur, J.,
held that there could be
no waiver of a fundamental right
founded on
Article 14. Bhagwati and
Subba Rao, JJ., held that no fundamental right can
be waived and S.K. Das,
J., held that only such fundamental rights which
are intended to the
benefit of a party can be waived. I am mentioning all
these aspects to show
how zealously this court has been resisting every
attempt to narrow down
the scope of the rights guaranteed under Part III of
our Constitution.
76. Admittedly the
provisions contained in the Limitation Act do not apply
to proceedings under
Article 226 or Article 32. The Constitution
makers
wisely, if I may
say with respect, excluded the application
of those
provisions to
proceedings under Articles 226, 227 and 32 lest the efficacy
of the constitutional
remedies should be left to the tender mercies of the
legislatures. This Court
has laid down in I.C. Golaknath v. State of Punjab
[(1967) 2 SCR 762] that
the Parliament cannot by amending the Constitution
abridge the
fundamental rights conferred under Part
III of the
Constitution. If we are
to bring in the provisions of Limitation Act by an
indirect process to
control the remedies conferred by the Constitution it
would mean that what the
Parliament cannot do directly it can do indirectly
by curtailing the period
of limitation for suits against the Government. We
may console ourselves by
saying that the provisions of the Limitation Act
will have only
persuasive value but they do not limit the power of
this
Court but the reality is
bound to be otherwise. Very soon the line that
demarcates the rule of
prudence and binding rule is bound to vanish as has
happened in the past.
The fear that forgotten claims and discarded rights
may be sought to be
enforced against the Government after lapse of years,
if the fundamental
rights are held to be enforceable without any time limit
appears to be an
exaggerated one. It is for the party who complains
the
infringement of any
right to establish his right. As years roll on his task
is bound to become more
and more difficult. He can enforce only an existing
right. A right may be
lost due to an earlier decision of a competent court
or due to various other
reasons. If a right is lost for one reason or the
other there is no right
to be enforced. In this case we are dealing with an
existing right even if
it can be said that the petitioners' remedy under
the ordinary law is barred.
If the decision of Bachawat and Mitter, JJ., is
correct, startling
results are likely to follow. Let us take for example a
case of a person who
is convicted and sentenced to a long
period of
imprisonment on the
basis of a statute which had been repealed long before
the alleged offence was
committed. He comes to know the repeal of
the
statute long after the
period prescribed for filing appeal expires. Under
such a circumstance
according to the decision of Bachawat and Mitter, JJ.,
he will have no right -
the discretion of the court apart - to move this
court for a writ of
habeas corpus.
77. Our Constitution
makers in their wisdom thought that no fetters should
be placed on the right
of an aggrieved party to seek relief from this court
under Article 32. A
comparison of the language of Article 226 with that of
Article 32 will show
that while under Article 226 a discretionary power is
conferred on the High
Courts the mandate of the Constitution is absolute so
far as the exercise of
this court's power under Article 32 is concerned.
Should this court, an
institution primarily created for the purpose
of
safeguarding the
fundamental rights guaranteed under Part
III of the
Constitution, narrow
down those rights? The implications of this decision
are bound to be far
reaching. It is likely to pull down from
the high
pedestal now occupied by
the fundamental rights to the level of other civil
rights. I am
apprehensive that this decision may mark an important turning
point in
downgrading the fundamental rights guaranteed
under the
Constitution. I am
firmly of the view that a relief asked for under Article
32 cannot be refused
on the ground of laches. The
provisions of the
Limitation Act
have no relevance either directly or
indirectly to
proceedings under
Article 32. Considerations which are
relevant in
proceedings under
Article 226 are wholly out of place in a proceeding like
the one before us. The
decision of this court referred to in the judgment
of Bachawat and Mitter,
JJ., where this court has taken into consideration
the laches on the part
of the petitioners are not apposite for our present
purpose. None of those
cases deal with proceedings under Article 32 of the
Constitution. The
rule enunciated by this court in
the State of
M.P. v. Bhailal Bhai,
[(1964) 6 SCR 261] is only applicable to proceedings
under Article 226. At p.
271 of the report, Das Gupta, J., who spoke for
the court specifically
referred to this aspect when he says:
"That it has been
made clear more than once that power to relief
under
Article 226 is a
discretionary power."
23. It will thus
be seen that Hidayatullah, C.J., did not lay down any
fixed period.
According to him, there is no lower limit or upper
limit
except that utmost
expedition is a sine qua non for moving a petition under
Article 32. The learned
Chief Justice left it to be decided on the facts of
each case depending on
what the breach of the fundamental right is, what
the remedy claimed is,
and when and how the delay arose. Sikri J., on the
other hand was in favour
of an inflexible time limit that is not beyond one
year. Both
Bachawat and Mitter, J., would ask the question as to whether
time under the
Limitation Act had run out, and if so, whether
the writ
petition ought to be
dismissed as a result.
24. It is clear
from a reading of these differing judgments that
the
ratio of this
Constitution bench judgment can broadly be stated to be that
a writ petition filed
under Article 32 can be dismissed on the ground of
delay. Beyond
that, there is no discernible ratio as no majority can
be
cobbled up for
deciding on what basis such writ petition
can be so
dismissed.
25. Close on the
heels of this judgment in Rabindranath Bose & Ors.
v.
Union of India &
Ors., (1970) 1 SCC 84, a fervent plea
was made to
reconsider the judgment
in Tilokchand Motichand. This plea was turned down
and it was held that a
stale claim of 15 years to challenge appointments
and promotions already
made without any explanation for so moving after 15
years would result in
dismissal of an Article 32 petition, more so when
rights had accrued to
the respondents in that case. The Court held:
"31. But insofar as
the attack is based on the 1952 Seniority Rules,
it
must fail on another
ground. The ground being that this petition
under
Article 32 of the
Constitution has been brought about fifteen years after
the 1952 Rules were
promulgated and effect given to them in the Seniority
List prepared on August
1, 1953. Learned counsel for the petitioners says
that this Court has no
discretion and cannot dismiss the petition under
Article 32 on the ground
that it has been brought after inordinate delay.
We are
unable to accept this contention. This
Court by majority
in Tilokchand Moti Chand
v. H.B. Munshi [(1969) 1 SCC 110] held that delay
can be fatal in certain
circumstances. We may mention that in Laxmanappa
Hanumantappa Jamkhandi
v. Union of India [AIR 1955 SC 3, (1955) 1 SCR 769]
Mahajan, C.J., observed
as follows:
"From the facts
stated above it is plain that the proceedings taken under
the impugned
Act 30 of 1947 concluded so far
as the Investigation
Commission is concerned
in September 1952 more than two years before this
petition was presented
in this Court. The assessment orders under
the
Income Tax Act itself
were made against the petitioner in November 1953.
In these circumstances,
we are of the opinion that he is entitled to no
relief under the
provisions of Article 32 of the Constitution. It was held
by this Court in
Ramjilal v. ITO that as there is a special provision in
Article 265 of the
Constitution that no tax shall be levied or collected
except by authority of
law, clause (1) of Article 31 must therefore
be
regarded as concerned
with deprivation of property otherwise than by the
imposition or collection
of tax, and inasmuch as the right conferred by
Article 265 is not a
right conferred by Part III of the Constitution, it
could not be enforced
under Article 32. In view of this decision it has to
be held that the
petition under Article 32 is not maintainable
in the
situation that
has arisen and that even otherwise in
the peculiar
circumstances that have
arisen, it would not be just and proper to direct
the issue of any of the
writs the issue of which is discretionary with the
Court."
(emphasis supplied).
32. The learned
counsel for the petitioners strongly urges
that the
decision of this Court
in Tilokchand Motichand case [(1969) 1 SCC
110]
needs review. But after
carefully considering the matter, we are of the
view that no
relief should be given to petitioners
who, without any
reasonable
explanation, approach this Court under
Article 32 of the
Constitution after inordinate
delay. The highest Court in this land has
been given original
jurisdiction to entertain petitions under Article 32 of
the Constitution. It
could not have been the intention that this
Court
would go into stale
demands after a lapse of years. It is said that Article
32 is itself a
guaranteed right. So it is, but it does not follow from this
that it was the
intention of the Constitution-makers that this Court should
discard all principles
and grant relief in petitions filed after inordinate
delay.
33. We are not anxious
to throw out petitions on this ground, but we must
administer justice in
accordance with law and principles of equity, justice
and good conscience. It
would be unjust to deprive the respondents of the
rights which have
accrued to them. Each person ought to be entitled to sit
back and consider that
his appointment and promotion effected a long time
ago would not be set
aside after the lapse of a number of years. It was on
this ground that this
Court in Jaisinghani case observed that the order in
that case would not
affect Class II officers who have
been appointed
permanently as Assistant
Commissioners. In that case, the Court was only
considering the
challenge to appointments and promotions made after 1950.
In this case, we are
asked to consider the validity of appointments
and
promotions made during
the periods of 1945 to 1950. If there was adequate
reason in that case to
leave out Class II officers, who had been appointed
permanently Assistant
Commissioners, there is much more reason in this case
that the officers who
are now permanent Assistant Commissioners of Income
Tax and who were
appointed and promoted to their original posts during 1945
to 1950, should be left
alone."
26. In Ramchandra
Shankar Deodhar v. State of Maharashtra, (1974) 1 SCC
317, a Constitution
Bench was invited to dismiss a petition filed
under
Article 32 on the ground
of laches. The petitioner having approached the
court after a delay of
at least eight years, the Court held that barring a
writ petition containing
stale claims is not a rule of law but a rule of
practice based on sound
and proper discretion. There is no inviolable rule
that whenever there is
a delay, the court must necessarily
refuse to
entertain the
petition. After referring to Tilokchand
Motichand and
Rabindranath Bose, the
Court held that the claim for enforcement of the
fundamental right of
equal opportunity under Article 16 cannot be dismissed
solely on the ground of
delay/laches etc. The Court also went on to hold
that promotions being
provisional, no rights have been conferred on those
who are promoted whose
interest can therefore be defeated if ultimately it
is found that such promotions
are not warranted in law.
27. In Express
Publication (Madurai) Ltd. v. Union of India, (2004) 11
SCC 526, the employer
newspaper wished to challenge paragraph 80 of the
Employees Provident Fund
Scheme, 1952, which came into force in 1956. The
challenge was made in a
writ petition under Article 32, 45 years later in
2001. This was
turned down by a Bench of two Judges with a caveat, that if
it was the case of the
petitioners that with the passage of time, a certain
provision had become
unconstitutional, then obviously the very passage of
time would not amount to
delay for which a writ petition would not
be
entertained.
28. Similarly in
T.K. Dingal v. State of West Bengal, (2009) 1 SCC 768, a
Bench of two Judges held
that there is no upper and no lower limit when it
comes to an Article 32
petition. It all depends on the breach
of the
particular fundamental
right, the remedy claimed, and how the delay arose.
On facts, the petition
was turned down as there was an unexplained delay of
ten years.
29. In Bangalore
City Co-operative Housing Society v. State of Karnataka,
(2012) 3 SCC 727, a two
Judge Bench of this Court understood the ratio of
Tilokchand Motichand as
follows:
"46. In Tilokchand
Motichand v. H.B. Munshi [(1969) 1 SCC 110]
the
Constitution Bench
considered the question whether the writ petition filed
under Article 32 of the
Constitution for refund of the amount forfeited by
the Sales Tax Officer
under Section 21(4) of the Bombay Sales Tax
Act,
1953, which, according
to the petitioner, was ultra vires the powers of the
State Legislature should
be entertained ignoring the delay of almost nine
years. Sikri and
Hedge, JJ. were of the view that
even though the
petitioner had
approached the Court with considerable delay,
the writ
petition filed by it
should be allowed because Section 12-A(4)
of the
Bombay Sales Tax Act,
1946 was declared unconstitutional by the Division
Bench of the High Court (sic
Constitution Bench of the Supreme Court) [Ed.:
S. 12-A(4) of the Bombay
Sales Tax Act, 1946 (corresponding to S. 21(4) of
the Bombay Sales Tax
Act, 1953) was struck down by the Constitution Bench
of the Supreme Court in
Kantilal Babulal v. H.C. Patel, AIR 1968 SC 445 :
(1968) 1 SCR 735 : 21
STC 174 for being violative of Art. 19(1)(f) of the
Constitution.] .
Bachawat and Mitter, JJ. opined that the writ
petition
should be dismissed on
the ground of delay.
47. Hidayatullah,
C.J. who agreed with Bachawat and
Mitter, JJ.
in Tilokchand
case[(1969) 1 SCC 110] noted that no period of limitation has
been prescribed for
filing a petition under Article 32 of the Constitution
and proceeded to
observe: (SCC p. 116, para 11)
"11. Therefore, the
question is one of discretion for this Court to follow
from case to case. There
is no lower limit and there is no upper limit. A
case may be brought
within the Limitation Act by reason of some article but
this Court need not
necessarily give the total time to the litigant to move
this Court under Article
32. Similarly in a suitable case this Court may
entertain such a
petition even after a lapse of time. It will all depend on
what the breach of the
fundamental right and the remedy claimed are when
and how the delay
arose."
48. The ratio of the
aforesaid decision is that even though there is
no
period of limitation for
filing petitions under Articles 32 and 226 of the
Constitution, the
petitioner should approach the Court without loss of time
and if there is delay,
then cogent explanation should be offered for the
same. However, no
hard-and-fast rule can be laid down or a
straitjacket
formula can be adopted
for deciding whether or not this Court or the High
Court should entertain a
belated petition filed under Article 32 or Article
226 of the Constitution
and each case must be decided on its own facts."
30. It will be
seen that, in the present case, the petitioners in
the
various writ petitions
represent an entire people - the tribal and non-
tribal population of the
State of Assam. In their petition, they
have
raised a plea that the
sovereignty and integrity of India is itself
at
stake as a massive
influx of illegal migrants from a neighboring country
has affected this core
Constitutional value. That, in fact, it has been
held in Sonowal's case
that such an influx is "external aggression" within
the meaning of Article
355 of the Constitution of India, and that
the
Central Government has
done precious little to stem this tide
thereby
resulting in a violation
of Article 355. As a result of this huge influx,
periodic clashes have
been taking place between the citizens of India and
these migrants resulting
into loss of life and property, sounding in
a
violation of Articles 21
and 29 of the Constitution of the Assamese people
as a whole. Not
only is there an assault on the life of the citizenry of
the State of Assam but
there is an assault on their way of life as well.
The culture of an entire
people is being eroded in such a way that they
will ultimately be
swamped by persons who have no right to continue to live
in this country.
The petitioners have also argued that this Hon'ble Court
in Sonowal's case has
specifically held in para 79 thereof that Bangladeshi
nationals who have
illegally crossed the border and have trespassed into
Assam or are living in
other parts of the country have no legal right of
any kind to remain in India
and are liable to be deported. They have also
raised a fervent plea
that Article 14 also continues to be violated
as
Section 6A (3) to (5)
are not time bound but are ongoing.
31. Given the
contentions raised specifically with regard to pleas under
Articles 21 and 29, of a
whole class of people, namely, the tribal and non-
tribal citizens of Assam
and given the fact that agitations on this core
are ongoing, we do not
feel that petitions of this kind can be dismissed at
the threshold on the
ground of delay/laches. Indeed, if we were to do so,
we would be guilty of
shirking our Constitutional duty to protect the lives
of our own citizens and
their culture. In fact, the time has come to have
a relook at the doctrine
of laches altogether when it comes to violations
of Articles 21 and 29.
32. Tilokchand
Motichand is a judgment involving property
rights of
individuals.
Ramchandra Deodhar's case, also of a Constitution Bench
of
five judges has held
that the fundamental right under Article 16 cannot be
wished away solely
on the 'jejune' ground of delay.
Since Tilokchand
Motichand's case was
decided, there have been important strides made in the
law. Property
Rights have been removed from part III of the Constitution
altogether by the
Constitution 44th Amendment Act. The same amendment made
it clear that even
during an emergency, the fundamental right under Article
21 can never be
suspended, and amended Article 359 (1) to give effect
to
this. In Maneka Gandhi
v. Union of India, (1978) 1 SCC 248 decided nine
years after
Tilokchand Motichand, Article 21 has been
given its new
dimension, and pursuant
to the new dimension a huge number of rights have
come under the umbrella
of Article 21 (for an enumeration of these rights,
see Kapila Hingorani v.
State of Bihar, (2003) 6 SCC 1 at
para 57).
Further, in Olga Tellis
& Ors. v. Bombay Municipal Corporation, (1985) 3
SCC 545, it has
now been conclusively held that all fundamental
rights
cannot be waived (at
para 29). Given these important developments in the
law, the time has come
for this Court to say that at least when it comes to
violations of the
fundamental right to life and personal liberty, delay or
laches by itself without
more would not be sufficient to shut the doors of
the court on any
petitioner.
33. Coming now to
the merits, we have heard several counsels for
the
petitioners who have
raised a number of points, which have been rebutted by
the counsel for
the Union of India, the State of
Assam and several
interveners. We feel
that the following questions need to be answered by an
appropriate Bench as
most of them are substantial questions as
to the
interpretation of the
Constitution which have to be decided by a minimum of
5 Judges under Article
145(3). An enumeration of these questions is
as
follows:
(i) Whether
Articles 10 and 11 of the Constitution of India permit
the
enactment of Section 6A
of the Citizenship Act in as much as Section 6A, in
prescribing a cut-off
date different from the cut-off date prescribed in
Article 6, can do so
without a "variation" of Article 6 itself; regard, in
particular, being had to
the phraseology of Article 4 (2) read with Article
368 (1)?
(ii) Whether
Section 6A violates Articles 325 and 326 of the Constitution
of India in that it has
diluted the political rights of the citizens of the
State of Assam;
(iii) What is the scope
of the fundamental right contained in
Article
29(1)? Is the
fundamental right absolute in its terms? In particular, what
is the meaning of the
expression "culture" and the expression
"conserve"?
Whether Section 6A
violates Article 29(1)?
(iv) Whether
Section 6A violates Article 355? What
is the true
interpretation of
Article 355 of the Constitution? Would an
influx of
illegal migrants into a
State of India constitute "external
aggression"
and/or "internal
disturbance"? Does the expression "State"
occurring in
this Article refer only
to a territorial region or does it also include the
people living in the
State, which would include their culture and identity?
(v) Whether Section 6A
violates Article 14 in that, it singles out Assam
from other
border States (which comprise a distinct
class) and
discriminates against
it. Also whether there is no rational basis
for
having a separate
cut-off date for regularizing illegal migrants who enter
Assam as opposed to the
rest of the country; and
(vi) Whether Section 6A
violates Article 21 in that the lives and personal
liberty of the citizens
of Assam have been affected adversely
by the
massive influx of
illegal migrants from Bangladesh.
(vii) Whether delay is a
factor that can be taken into account in moulding
relief under a petition
filed under Article 32 of the Constitution?
(viii) Whether, after a
large number of migrants from East Pakistan have
enjoyed rights as
Citizens of India for over 40 years, any relief can be
given in the petitions
filed in the present cases?
(ix) Whether section 6A
violates the basic premise of the Constitution and
the Citizenship Act in
that it permits Citizens who have allegedly not lost
their Citizenship of
East Pakistan to become deemed Citizens of
India,
thereby conferring dual
Citizenship to such persons?
(x) Whether section 6A
violates the fundamental basis of section 5
(1)
proviso and section 5
(2) of the Citizenship Act (as it stood in 1985) in
that it permits a class
of migrants to become deemed Citizens of
India
without any reciprocity
from Bangladesh and without taking the oath
of
allegiance to the Indian
Constitution?
(xi) Whether the
Immigrants (Expulsion from Assam) Act, 1950
being a
special enactment qua
immigrants into Assam, alone can apply to migrants
from East
Pakistan/Bangladesh to the exclusion of the general
Foreigners
Act and the Foreigners
(Tribunals) Order, 1964 made thereunder?
(xii) Whether Section 6A
violates the Rule of Law in that it gives way to
political expediency and
not to Government according to law?
(xiii)
Whether Section 6A violates fundamental rights
in that no
mechanism is provided to
determine which persons are ordinarily resident in
Assam since the dates of
their entry into Assam, thus granting
deemed
citizenship to such
persons arbitrarily?
34. These matters
be placed before the Chief Justice for constitution of
an appropriate bench to
answer the above questions. As notice is yet to be
issued in Writ Petition
(Civil) No. 876 of 2014, we direct that notice be
issued and served on the
Respondents in the said writ petition.
35. As Section 6A
of the Citizenship Act must be deemed to be valid until
the larger Bench decides
these matters, we will proceed, for the purposes
of this order, on the
footing that Section 6A of the Citizenship Act is
valid.
36. As the
statement of objects and reasons for the enactment of Section
6A states, the said
Section was inserted into the statute book in 1985 to
implement one part of
the Assam Accord dated 15th August, 1985. The Assam
Accord contained various
provisions providing for reciprocal obligations.
These are largely
contained in paragraphs 5, 6, 9 and 10 which read
as
under:
"5.
1. For purpose of
detection and deletion of foreigners, 1-1-1966 shall be
the base date and year.
2. All persons who came
to Assam prior to 1-1-1966, including those amongst
them whose names
appeared on the electoral rolls used in 1967 elections,
shall be regularized.
3. Foreigners who came
to Assam after 1-1-1966 (inclusive) and upto 24th
March, 1971 shall be
detected in accordance with the provisions of
the
Foreigners Act, 1946 and
the Foreigners (Tribunals) Order, 1939.
4. Names of foreigners
so detected will be deleted from the electoral rolls
in force. Such persons
will be required to register themselves before the
Registration Officers of
the respective districts in accordance with the
provisions of the
Registration of Foreigners Act, 1939 and the Registration
of Foreigners Rules,
1939.
5. For this
purpose, Government of India will
undertake suitable
strengthening of the
governmental machinery.
6. On the expiry of the
period of ten year following the date of detection,
the names of all such
persons which have been deleted from the electoral
rolls shall be restored.
7. All persons
who were expelled earlier, but have
since re-entered
illegally into Assam,
shall be expelled.
8. Foreigners who came
to Assam on or after March 25, 1971 shall continue
to be detected, deleted
and expelled in accordance with the law. Immediate
and practical steps
shall be taken to expel such foreigners.
9. The Government
will give due consideration to certain
difficulties
express by the
AASU/AAGSP regarding the implementation of
the illegal
Migrants (Determination
by Tribunals) Act, 1983.
6. Constitutional,
legislative and administrative safeguards, as may
be
appropriate, shall
be provided to protect, preserve and
promote the
cultural, social,
linguistic identity and heritage of the Assamese people.
9.
1. The
international border shall be made secure
against future
infiltration by
erection of physical barriers like walls
barbed wire
fencing and other
obstacles at appropriate places. Patrolling by security
forces on land and
riverine routes all along the international border shall
be adequately
intensified. In order to further strengthen the
security
arrangements, to
prevent effectively future infiltration, an
adequate
number of check posts
shall be set up.
2. Besides the
arrangements mentioned above and keeping in view
security
considerations, a
road all along the international border
shall be
constructed so as to
facilitate patrolling by security forces. Land between
border and the road
would be kept free of human
habitation, wherever
possible. Riverine
patrolling along the international border
would be
intensified. All
effective measures would be adopted to
prevent
infiltrators crossing or
attempting to cross the international border.
10. It will be
ensured that relevant laws for prevention of encroachment
of government lands and
lands in tribal belts and blocks are
strictly
enforced and
unauthorized encroachers evicted as laid down
under such
laws."
37. Sarbananda
Sonowal v. Union of India & Anr., (2005) 5 SCC 665, dealt
with the Assam Accord in
some detail in as much as The Illegal Migrants
(Determination by
Tribunals) Act, 1983 was under challenge in that case.
This Court examined a
writ petition filed under Article 32 and
various
affidavits filed by the
Union of India and the State of Assam regarding
implementation of the
Assam Accord. The following paragraphs from
the
judgment will show that
whereas a part of paragraph 5 of the Accord has
been fully implemented
by enacting Section 6A, precious little has been
done by the Union of
India and the State of Assam to implement the other
parts of the Accord.
"2......................
As a result of the students' movement and ensuing
negotiations, a
memorandum of settlement dated 15-8-1985 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 detect
and deport
illegal migrants from
Assam and it also contained a clause
that "the
Government will give due
consideration to certain difficulties expressed by
AASU/AAGSP
regarding the implementation of the
Illegal Migrants
(Determination by
Tribunals) Act, 1983". The Accord further provided that
foreigners who have
entered into India after 25-3-1971 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
65 of 1985 and Section 6-A was inserted with the
heading "Special
provisions as to citizenship of persons covered by
the
Assam Accord". It
provides that the term "detected to be a foreigner" shall
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 1-1-
1966 and has been
resident in Assam since then is deemed to be a citizen of
India. However, if such
a person entered into Assam between 1-1-1966 and
before 25-3-1971
and has been detected to be a
foreigner 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.
4. The Union of India
filed a counter-affidavit on 18-7-2000, which has
been sworn by Shri
Jatinder Bir Singh, Director, Ministry of Home Affairs.
In para 7 of this
affidavit, it was stated that a proposal to repeal the
IMDT Act is under
consideration of the 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 8-3-2000 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
1-1-1966 and
up to 24-3-1971 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 25-
3-1971. The Hon'ble
Minister 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 paras 3 to 7 of the said status
report are being
reproduced below:
"3. Continuing
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 important 'Push Factors'
on 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;
The 'Pull Factors' on
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 25-3-1971.
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 25-3-1971 were not to be sent back
and those who
entered India in or after the said
date were to be
repatriated."
5. In para 12 of
the counter-affidavit it is stated that
"the basic
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 of Assam". In para 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 para 18 and para 19 of the
counter-affidavit are
important and are being reproduced below:
"It is 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 up to
30-4-2000) is as follows:
1. Total number of
enquiries initiated
3,10,759
2. Total number of
enquiries completed 3,07,955
3. Total number of
enquiries referred to the Screening 3,01,986
Committee
4. Total number of
enquiries made by the Screening 2,98,465
Committee
5. Total number of
enquiries referred to IM(DT)s 38,631
6. Total number of
enquiries disposed of by IM(DT)s 16,599
7. Total number of
persons declared as illegal migrants 10,015
8. Total number of
illegal migrants physically expelled 1481
9. Total number of
illegal migrants to whom expulsion 5733
order
served
10. Total number of
enquiries pending with the Screening 3521
Committee
11. Total number of
enquiries pending with the Tribunal 22,072
In reply to para 9, it
is submitted that the Chief Minister of Assam had
requested the then Prime
Minister vide his letter dated 22-6-1996 regarding
repeal of the IMDT Act.
The Chief Minister again reiterated for scrapping
the IMDT Act, vide
his letter dated 31-7-1996 addressed to
the Home
Minister. This view has
been reconfirmed by the State Government vide its
message dated
23-4-1998."
11. 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
below:
"In this 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 titled 'Jamiat Ulama-E-Hind v.
Union of
India [WP (C) No. 7 of
2001]' clearly 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 the 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 of 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 illegal
infiltrators."
13. 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) Coordination
Committee dated 3-7-1992
wherein it was recorded as under:
"20.1 There 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 in
influx."
16. In IA No. 6 of 2004,
the copy of the memorandum submitted before the
Parliamentary Standing
Committee of Home Affairs on "the Illegal Migrants
Laws (Replacing and
Amending) Bill, 2003" on behalf of the Government
of
Assam has been
filed, which contains the figures regarding
inquiries
conducted up to
31-8-2003 and the same is as under:
1. Total number of enquiries
initiated
3,86,249
2. Total number of
enquiries completed 3,79,521
3. Total number of
enquiries referred to the Screening 3,62,592
Committee
4. Total number of
enquiries made by the Screening 3,59,733
Committee
5. Total number of
enquiries referred to IM(DT)s 76,228
6. Total number of
enquiries disposed of by IM(DT)s 21,169
7. Total number of
persons declared as illegal migrants 11,636
8. Total number of
illegal migrants physically expelled 1517
9. Total number of
illegal migrants to whom expulsion 6159
order
served
10. Total number of
enquiries pending with the Screening 2859
Committee
11. Total number of
enquiries pending with the Tribunal 55,059"
38. The State of
Assam has prepared a White Paper on the Foreigners Issue
dated 20th October,
2012. We propose to extract large portions of
this
paper only to show that
even as on October 20, 2012, very little has been
done to implement paragraphs
5(part), 6, 9 and 10 of the Assam Accord.
2.3.5. The 21 IMDTs
functioning in Assam were wound up and replaced by 21
new Foreigners
Tribunals. The learned judges and staff
of IMDT were
redeployed in the
newly created additional Foreigners
Tribunals. As a
result, after 2005,
32(21 new + 11 existing) Foreigners Tribunals started
functioning. The number
of Foreigners Tribunal has now been raised to 36
with the functioning of
4 new Foreigners Tribunals. The performance
of
Foreigners Tribunal over
different time period is presented in the table
below:
Foreigners
Tribunals Cases
|Peri|Cases
|Cases |Cases |Persons|No. of
|
|od
|referred|disposed |pending |declare|declared
|
| |
| |(cumulativ|d as
|foreigners |
| |
| |e)
|Foreign|pushed |
| |
| |
|ers |Back/deported |
|1985|32991
|15929 |17062 |14801 |133
|
|-90 |
| |
| |
|
|1991|482
|5909 |11635 |4005 |267
|
|-95 |
| |
| |
|
|1996|2986
|3552 |11069 |6026 |235
|
|-200|
| |
| |
|
|0 |
| |
| |
|
|2001|6094
|2216 |14947 |4593 |39
|
|-200|
| |
| |
|
|5 |
| |
| |
|
|2006|65666
|45456 |35157 |12913 |221
|
|-Jul|
| |
| |
|
|y |
| |
| |
|
|2012|
| |
| |
|
|Tota|108219
|73062 |35157 |42338 |895
|
|l |
| |
| |
|
Consolidated total
of deported/pushed back illegal migrants on
being
declared as foreigners
by IMD(T)s and Foreigners Tribunals collectively
till July 2012-
1547+895=2442.
2.5.4. In the absence of
a proper laid down procedure for deportation of
illegal migrants between
the Government of India and the Government
of
Bangladesh, it has
become difficult to carry out deportations. As
such,
deportation of
foreigners is mainly carried out through the 'push
back'
method. However, to
overcome this problem, the Ministry of Home Affairs has
recently prescribed a
detailed proforma which has been circulated to all
State Governments for
collecting data of such foreigners who are presently
being detained
in detention centres. The matter of
deportation of
foreigners who have
illegally entered into India needs to be taken up by
the Government of India
with the Government of Bangladesh so that a proper
policy could be evolved
and the process of deportation of such declared
foreigners become easier
and hassle free.
3.1. CLAUSE 6
3.1.1.
As per the Clause 6 of the Assam
Accord, constitutional,
legislative and
administrative safeguards as may be appropriate shall
be
provided to protect,
preserve and promote the cultural, social, linguistic
identity and
heritage of the Assamese people. For
this purpose the
Government of Assam had
earlier constituted a Committee of Ministers for
Clause 6 under
notification No. IAA 51/2005/29 dated 19th October 2006 to
examine all the issues
relating to the implementation of the Clause 6 of
the Assam Accord
including the definition of 'Assamese
people'. This
Committee had held a
number of meetings and also met Political Parties. It
sought the views of
different Political Parties, Sahitya Sabhas,
Youth
Organisations, Student
Bodies etc on the definition of 'Assamese People'
and deliberated on the
same. After the present Government assumed office in
May 2011, a Cabinet
Sub-Committee was constituted in July 2011 to
inter
alia deal with the
matter of implementation of Clause 6 of
the Assam
Accord. The entire
matter is now under examination of the Cabinet
Sub-
Committee.
3.1.2. A cultural centre
called the Srimanta Sankardeva Kalashetra Complex
has been established in
1992 at a cost of Rs 18.85 crores in Guwahati. Out
of this, an amount of Rs
3.15 crores were spent during 1991-1995 and the
remaining Rs 15.75
crores spent during 1996-2000. The Jyoti Chitraban Film
Studio (Phase I &II)
at Guwahati has been modernised at a cost of Rs 8.79
crores, of which Rs 4.79
crores were spent during 1998-2000 and Rs 4.20
crores were
spent during 2001-2003. The Phase III
(Part I) of the
modernisation of the
Jyoti Chitraban Film Studio for Rs 10 crores has also
been sanctioned by the
Govt. of India in 2007. Against the release of Rs
10.00 crores by the
Govt. of India, the State Govt. has already sanctioned
Rs 6.66 crores to the
Jyoti Chitraban Film Studio Society (JCFSS), which is
implementing the
scheme. A Technical Committee and a
Monitoring &
Supervision Committee
have been constituted to implement the project. An
amount of around Rs 2.64
crores have been spent so far and works are under
progress.
3.1.3. In addition to
the two Monuments at Poa-Mecca, Hajo and
Urvarsi
Archaeological Site that
were taken over by the Archaeological Survey of
India in 1919 and 1918
respectively, the Archaeological Survey of India has
taken up another three
Monuments for their preservation in 2005.
These
Monuments are the
Hayagriva Madhava Temple, Hajo, the Kedar Temple, Hajo
and the Ganesh Temple,
Hajo.
3.1.4. The Government
of Assam has also taken up the
development of
Historical Monuments and
Archaeological Sites in Assam. During 2009-10,
three Historical
Monuments and Archaeological Sites have been taken up for
Rs 2.00 crores and
another 8 taken up for Rs 5.00 crores during 2010-11. An
amount of Rs 5.00 crores
has been provided during 2012-13 for taking up the
development of more
Historical Monuments and Archaeological Sites in Assam.
3.1.5. The
Government of Assam has also taken up
the protection,
preservation and
development of Sattras in Assam. During 2009-10,
three
Sattras were taken up
for Rs 3.00 crores and during 2011-12, Rs
10.00
crores was provided for
the protection, preservation and development of 87
Sattras in Assam. An
amount of Rs 15.00 crores has been provided
during
2012-13 for the
protection, preservation and development of 85 Sattras in
Assam.
3.1.6. The
Executive Council of the Jawaharlal Nehru
University has
approved the
establishment of an Assamese Chair in the Centre of
Indian
Language, Literature and
Culture Studies of the University in 2007.
3.4. CLAUSES 9.1 &
9.2
3.4.1. BORDER FENCING
& BORDER ROADS
3.4.1.1. The
Indo-Bangladesh border with Assam has a length of 267.30 km.
Out of this 223.068 km
is the land border and 44.232 km are river stretches
and other non-feasible
gaps across the river border. Within 44.232 km, the
Brahmaputra river has a
stretch of 32.750 km in Dhubri District. Details of
the river border areas
is given in the Annexure-12. Roads and Fences are
erected only on land
border and the length of 44.232 km is unfenced.
3.4.1.2. Roads and
Fences have been taken up for construction on the land
border in three phases.
In the Phase-I, construction of new roads
and
fencing was taken up in
1986 by Assam PWD and works completed in 2003. In
the Phase-II,
construction of remaining new roads and fencing was taken up
by Assam PWD in 2000-01.
Subsequently some parts of this Phase-II works
were handed over to the
National Building Construction Corporation (NBCC)
by the Assam PWD. While
Assam PWD has almost completed its works, that of
NBCC are in progress.
Under the Phase-III reconstruction of the
fences
constructed in Phase-I
was taken up from 2006-07 through NBCC and
NPCC
(National Projects
Construction Corporation). While NBCC has completed its
Phase-III assigned
works, works of NPCC are in progress.
3.4.1.3 A
total of 228.118 km of new fencing was sanctioned under Phase-
I&II, out of which,
based on field conditions, the actual required length
was 224.694 km. Against
this 218.170 km of fencing (97.1%)
has been
completed. A stretch of
2.874 km could not be taken up at
Lathitila-
Dumabari area
Karimganj district due to an international dispute. Works in
respect of 150 meters of
fencing are in progress with Assam PWD.
These
inter alia relate
to approaches of two bridges and are
targeted for
completion within 31,
December 2012. A length of 3.50 km in Karimganj Town
could not be taken up
earlier as it was within 150 metres of the Bangladesh
border. It has now been
decided to take up single fencing in this stretch
in Karimganj Town, for
which actions have been initiated by the NBCC.
3.4.1.4. A total
of 251.558 km of new roads were sanctioned under Phase-
I&II, out of which,
based on field conditions, the actual required length
was 246.073 km.
Against this 234.153 km of roads (95.16%)
have been
completed. Assam
PWD is yet to complete 60 metres of roads,
which is
targeted to be completed
by 31st December 2012. NBCC is yet to complete
11.86 km of roads out of
which 3.50 km relates to Karimganj Town, where
work is yet to be
started, and 8.36 km relates to Masalabari area in Dhubri
district where work is
in progress and scheduled to be completed this year.
3.4.1.5. A total
of 144.961 km of reconstruction Phase-I fencing
was
sanctioned under
Phase-III, out of which based on field conditions
the
actual required length
was 134.727 km. Against this 121.707 km (90.34%) has
been completed. NBCC has
completed all works assigned to it. Works are in
progress in respect of
13.020 km of fencing being constructed by
NPCC,
which are targeted to be
completed by 31st March 2013. The Government of
India has sanctioned the
Phase-III of the fencing project, entailing the
use of concertina with
double coil wire fencing for replacing the entire
fencing constructed
under Phase- I. Due to persistent efforts from Chief
Minister, Assam, phase
II fencing was designed to be double row
where
concertina with double
coil wire has been used in contrast to
Phase I
fencing which was only
single row. A copy of the DO letter written by Chief
Minister, Assam to Union
Home Minister in 2004 is placed as annexure 13.
3.4.1.6. The period-wise
achievement in respect of Phase I & II works done
by Assam PWD since 1986
is given in annexure-14 and works done by
all
agencies is at annexure-
15. A summary of the works done by
all the
agencies is given in the
table below:
Progress under Phase-I and Phase-II (Fencing)
(in Kms)
|Phase|Sanctioned/|Actual
|Completed |Disputed |Balan|
| |Actual
|required | |
|ce |
| |Length
| |
| | |
|Phase|150.55
|147.17 |144.3 |2.87 |0
|
|-I |
| |
| | |
|Phase|77.57
|77.52 |73.87 |0
|3.65 |
|-II |
| |
| | |
|Phase|228.12
|224.69 |218.17 |2.87
|3.65 |
|-I & |
| |
| | |
|II |
| |
| | |
|Phase|144.96
|134.73 |121.71 |0
|13.02|
|-III |
| |
| | |
|Fenci|
| |
| | |
|ng |
| |
| | |
3.4.1.7 While
Assam has almost completed its fencing project under phase
I and II with around 97%
of the work having been completed, the work in
other states bordering
Bangladesh is lagging behind as indicated below:
|State |Total length of
|Total length of |Percentage |
|
|border fencing |border fencing |of
|
|
|sanctioned under |completed under |completion |
|
|Phase-I and |Phase-I and |
|
|
|Phase-II |Phase-II
| |
|West |1528 km
|1222 km
|80% |
|Bengal|
|
| |
|Meghal|470.23 km
|380.06 km |81%
|
|aya |
|
| |
|Tripur|856 km
|730.50 km |85%
|
|a |
|
| |
|Mizora|352.32 km
|206.80 km |59%
|
|m |
|
| |
|Assam |224.69 km
|218.17 km |97%
|
3.4.1.8. The total
unfenced portion of the Assam-Bangladesh
border at
present is given in the
table below:
(In Km)
|1.|River stretches and
other non-feasible |44.23| |
| |gaps across the
river border | |
|
| |Unfenced River
Border |
|44.23|
|2.|Phase-II fencing yet
to be completed by |3.65 | |
| |APWD & NBCC
| | |
|3.|Disputed land in
Lathila-Dumabari |2.87 | |
|4.|Earlier completed
fence in Phase-I, now |13.02| |
| |under
reconstruction by NPCC and yet to be| | |
| |completed
| | |
|5.|Unfenced Land
Border: |
|19.55|
| |Total unfenced
length along |
|63.79|
|
|Assam-Bangladesh Border:
| | |
3.4.2. BORDER PATROLLING
AND GUARDING
3.4.2.1. In order
to strengthen border domination and to
prevent any
transborder crimes
including infiltration and exfiltration, after 2001 in
the Assam portion of the
Indo-Bangladesh border 11 new BOPs have
been
established. More BSF
troops have been deployed and water wing personnel
have been made active on
duty round the clock in the riverine border areas.
At present the BSF and
the state police are doing joint patrolling of the
borders. A total of 6
battalions of BSF are deployed for guarding of the
Indo-Bangladesh border
(Assam portion). There are 91 BOPs at present and
the distance between two
BOPs has been reduced) Night vision
devices,
thermal indicators and
radar for better surveillance are being used by the
BSF at the border.
The state police are also having BOPs for providing a
second line of defence.
To strengthen the Government machinery for
the
purpose of detection and
deportation of foreigners, the Government of India
has sanctioned 1,280
additional posts in different ranks under the
PIF
Scheme. Including these
1,280 posts, the total sanctioned strength of the
Assam Police Border
Organisation is 4,002 police personnel in
different
ranks.
3.4.3. COMMITTEE
FOR PREVENTING INFILTRATION THROUGH THE
UNPROTECTED RIVERINE AREAS
3.4.3.1 The
actions taken for completing the fencing of the land
border
have been detailed
above. Initiative has also been taken to ensure
that
infiltration is
prevented from the river stretches and other non-feasible
gaps across the river
border. With this end in view the Governor of Assam
constituted a Committee
vide the notification No. 1AA 56/2011/1 dated 12th
September 2011 to
examine and recommend ways and means for
preventing
infiltration through the
unprotected riverine areas in the Assam-Bangladesh
border. The Committee
visited the riverine border areas of Dhubri district
in October 2011 and the
riverine border areas of Karimganj and
Cachar
districts in November
2011. During these visits extensive discussions were
held with BSF and other
local authorities. Various technical options of
preventing infiltration
through such riverine areas are presently being
considered.
3.4.4. FLOOD
LIGHTING
3.4.4.1. To enable
proper vigilance of the international border during the
night, action has been
taken to provide floodlighting all along the Assam-
Bangladesh border.
Floodlighting works are being implemented by the CPWD
in the Assam. These
works are divided between the Guwahati sector and the
Silchar sector and the
total length comes to 213.74 kms. The
Guwahati
sector comprises a
stretch of 37.60 km in Dhubri sub-sector and 43.44 km in
Mancachar sub-sector.
Work has started in both these sub-sectors and is
scheduled to be
completed within 2012-13. The Silchar sector
comprises
three sub-sectors. The
works in respect of the first, from BP. No. 1338 to
1356 & 680635 for 40.50
km have started and are scheduled to be completed
within 2012-13. Works in
respect of the remaining two sub-sectors having
stretches of 46.70 km
and 45.50 km are yet to be started and are scheduled
to be completed within
2013-14.
3.5. CLAUSE 10
3.5.1. Land
administration in the Protected Belts and Blocks in Assam
is
carried out as per
provisions of Chapter X of the Assam land and Revenue
Regulation 1886 and
Rules framed there under. Steps are taken for removal
of encroachment on a continuous
basis.
4.2 PROGRESS IN
DETECTION AND DISPOSAL OF CASES
4.2.1. There has
been a substantial increase in the
number of cases
detected during the last
11 years. The disposal of cases also has shown a
significant increase
during this time period. The following table provides
a comparative picture of
the cases registered and disposed of by Foreigners
Tribunal & IMDT:
FOREIGNERS'
TRIBUNAL AND IMDT
|Period
|Cases referred |Cases disposed of |
|1985-2000 |80252
|43631
|
|2001 July
|140758 |53452
|
|2012
|
|
|
4.2.2. It may be seen
that the progress in 10 years time period from 2001-
2012 far exceeds the
progress made during the 15 years time period
from
1985 to 2000. Keeping in
view that the disposal mechanism is a judicial
process and also subject
to judicial review, the disposal of cases has not
been able to
keep pace with the number of cases
registered in the
Foreigners Tribunals.
Therefore, there has been a large cumulative pendency
of cases in the
Tribunals which needs to be addressed
through special
measures.
4.3. STRENGTHENING OF
MACHINERY FOR DETECTION AND DEPORTATION
4.3.1. In order to
prevent infiltration into the State through
Riverine
Routes 4(four) River
Police Stations and 7(seven) River Police Out Posts
have been set up under
River Police Organization. In addition, a new I.R.
Battalion for River
Police has also been raised and steps are being taken
to provide necessary
equipments and training to this riverine battalion.
The Assam Police Border
Organization has set up 159 Watch Posts in
the
infiltration prone areas
of 17 districts of Assam for detection of illegal
infiltrators.
4.3.2. The ex-servicemen
employed under PIF scheme have been given
the
status of regular
government servants so that they do not
suffer from
uncertainties of
employment. Government has paid more than Rs 22 crores as
arrears to these
ex-servicemen deployed since 1988 during 2011-2012.
4.3.3. The number of
Foreigner's Tribunals which was hovering between 4 and
11 from 1964 to 2005
increased to 36 Tribunals in 2009. All of them have
been made functional.
Standard staffing pattern and service order governing
service conditions of FT
staff have been notified. Proposal for providing
additional staff
depending on workload is submitted to MHA for approval.
Power of appointment of
vacant staff position has been delegated to Member
FT based on a
transparent selection process by a board headed by
Deputy
Commissioner.
4.3.4. New terms and
conditions have been issued for appointment of Members
so as to make the
service conditions attractive. The upper age limit has
been relaxed
from 65 to 67 years, remuneration has
been made more
attractive besides
providing other amenities like vehicle, orderly peons
etc. This has led to
significant reduction in vacancy position of Judicial
members of Foreigners
Tribunals - 33 members are in place and
other 4
applications are in
process to achieve 100 % occupancy. It is noted that
till February
2011 there were as many as 13
vacancies of Members,
Foreigners
Tribunal. The Government of Assam has
also received 7
nominations from the
registrars of the High Courts of other states and 3
members have been
appointed so far from outside the state. There
is a
paucity of suitable judicial
officers in the State and all efforts have
been made to fill
up all the posts of members. This
is the biggest
impediment to our
efforts in increasing the number of tribunals.
4.3.5. Office
infrastructure of Foreigners Tribunals has been improved by
providing
computers, printers: telephone, fax, photocopiers
etc. The
Government of Assam is
making every effort to overcome the constraints of
inadequate
infrastructure including office space for all the
Foreigners
Tribunals.
ANNEXURE - 5
(Copy)
Copy of Letter
NO.PLB.171164/34 dated Shillong, 25th June, 1966 from Shri
S.P. Hazarika,
A.C.S., Deputy Secretary to the Government
of Assam,
Political Department, to
the Inspector General of Police, Assam, Shillong.
Subject: Procedure for
deportation of Pak infiltrants
I am directed to
say that a review of the latest position of deportation
of Pak infiltrants shows
that the total number of Pakistani infiltrants in
our State as determined
by the Registrar General of Census In 1961
was
2,20,691. It appears
that since 1961 till 31-5-66, 2,15,794
infiltrants
have been detected and
notices for deportation were served or prosecution
was started against
2,15,355. Out of these, according to
the figures
confirmed by the Check
Posts, 1,43,438 have already left the country. About
28,999 of the remaining
number on whom notices have been
served have
preferred appeal. It may
also be assumed that about 25,000 persons on whom
deportation notices were
served have left by routes other than by the check
posts. The number
of infiltrants who have been detected but have
not
left the country would
come to about 40,000 plus the number
resulting
from natural increase,
new infiltration and re-entry of deported the total
number of Pakistani
infiltrants on the basis of 1961 census who are yet to
be detected comes to
about 5,000 or so. To this we have to add the number
resulting from the
natural increase during this period, fresh infiltration
and re-entry of some
deported persons. But the total number of such people
should not be many.
Therefore, the number of cases to be
detected is
gradually decreasing.
Now, more and more marginal cases would be detected.
Therefore, time has come
when we have to be more careful in deportation.
In the light of the
above background, Govt. think that from now
onward,
each and every case of
deportation should receive the cases where there is
slightest doubt, no
deportation notice should be reserved, but prosecution
should be started in
Court of law and deportation notices should be served
on the basis of the
judgment in the court of law. The following categories
of cases, however, would
be warrant service of deportation notices without
reference to Court:-
(1) A person with Pak
passport overstaying illegally in India;
(2) A person already
deported but has re-entered India illegally; and
(3) A new
infiltrant entering India.
In these categories of
cases, after service of deportation notice,
the
present procedure of
Tribunal will follow.
You are, therefore,
requested to issue necessary instructions of the points
mentioned above to all
concerned under intimation to Government.
These
instructions are
intended to make our officers cautions the
matter of
detection and
deportation and should not be interpreted
to mean any
relaxation in
the matter of vigilance, detection and
deportation of
Pakistani infiltrants.
SECRET
MemoNo.PA(VII)/62/200
Dated, Shillong the 29th
June, 1966.
Copy to Shri H.K.
Bhattacharyya, IPS (AIl D.ls. G/Ss. P) for information
and necessary action.
Sd/-
B.K. Barua,
Inspector General of Police,
Assam.
39. It will be
seen that the number of tribunals set up is abysmally low
resulting in an
abysmally low number of decisions by these tribunals. What
is interesting to
know is that whereas almost 1,50,000
persons were
deported between 1961 to
1965 under The Immigrants (Expulsion of Assam)
Act, 1950, the
number of deportations from 1985 till date is stated to be
a mere 2,000 odd. Even
these deportees are mostly if not all "push backs"
which results in the
same deportees coming back post deportation from
a
border which is
completely porous.
40. It will be
seen that the Assam portion of the border with Bangladesh
is 267 Kms. Out of which
44 Kms. are riverine. We are given to understand
that the entire border
between India and Bangladesh is roughly 4000 Kms.
The White Paper shows
that large portions of the border with Assam are yet
to be fenced with double
coil wire fencing, making the border an easy place
to cross. Also, we
are given to understand that most parts of the border
with West Bengal and
other North-Eastern States are also porous and very
easy to cross.
41. We are at
loss to understand why 67 years after
independence the
Eastern border is left
porous. We have been reliably informed that
the
entire Western border
with Pakistan being 3300 Kms. long, is not
only
properly fenced but
properly manned as well and is not porous at any point.
42. In the light
of the above, we have considered the
necessity of
issuing appropriate directions
to the Union of India and the State of Assam
to ensure that effective
steps are taken to prevent illegal access to the
country from Bangladesh;
to detect foreigners belonging to the stream of
1.1.1966 to 24.3.1971 so
as to give effect to the provisions of Section
6(3) & (4) of the
Citizenship Act and to detect and deport all
illegal
migrants who have come
to the State of Assam after
25.3.1971. Before
issuing any such
directions, we had thought it proper to require the Union
as well as the State of
Assam to state, on affidavits, their respective
stands in the matter and
also their suggestions, if any. Both the Union as
well as the State of
Assam have responded by filing affidavits sworn
by
duly authorized officials.
We have taken note of the contents of the said
affidavits which
disclose that both the Union and the State are broadly in
agreement in respect of
the steps that are required to be taken as well as
the action taken till
date and further the measures that are required to be
taken in the future. It
will be appropriate if the relevant contents of the
affidavit filed by the
Union are extracted below.
"5(VIII).
Effective Border guarding to check and
control illegal
immigration
(i) Intensive
24x7 patrolling by the Border Security Force
(BSF)
along the
Indo-Bangladesh border.
(ii)
Identification of vulnerable patches/routes by
15th January
2015 from where
Bangladeshi nationals are managing to enter
into the
country illegally. After
identification of these vulnerable patches/routes,
security and vigilance
will be strengthened at these points along
the
identified routes used
for illegal infiltration.
(iii) Persons who are
intercepted at the international border will be sent
back then and there to
Bangladesh.
(iv)
Illegal infiltrators will be interrogated by the State
Police
in the presence of
BSF personnel who have managed to
enter into the
territory of the country
for identification of routes they had taken for
entering into the
country. Security will be further strengthened on such
routes/areas. BSF
personnel, if any, found to be involved
in helping
illegal infiltrators for
crossing international border will be punished as
per law-. BSF will keep
close vigil on the international border through its
intelligence branch with
immediate effect.
(v) Besides,
intelligence agencies will be geared up
with immediate
effect for keeping close
vigil along the international border and
also
reporting to
the concerned authorities including BSF
on illegal
infiltrations.
(vi) Border
fencing: A project worth Rs.6337 crore has been sanctioned for
fencing 3326 km of
Indo-Bangladesh border including restoration of damaged
fence (total length
4096.7 km of the border of which 2980.7 km. is
land
border and 1116 km. is
riverine border [the length of riverine border keeps
varying from season to
season]). Out of 3326 Km, fencing has been completed
in 2828 km. Construction
work of fencing is in progress in 78.80 km. which
is likely to be
completed by May 2016. In 102.4 km fencing is not feasible
due to
low-lying/difficult hilly terrain. Work in
24.2 km is at
estimate/revised
estimate stage. Due to boundary issues which are yet to be
resolved between India
and Bangladesh in 19 km, construction of fencing
could not be completed.
Action has been initiated to resolve the boundary
issues with Bangladesh.
Fencing work cannot be started in 188 km due to
delay in land
acquisition by the concerned State Governments of Tripura (11
Km.), West Bengal (86
Km.) and Assam (3.5 Km.). In case of Meghalaya State
earlier the issue
of pending land acquisition was for
about 135 km.
However, due to constant
persuasion by the Ministry of Home Affair at the
highest level, the
matter was partially resolved and fencing is completed
in such
stretches except for 23.63 km. in
which work in progress.
Presently, the land acquisition
is pending for about 87.5 km. in Meghalaya.
The Matter has been
taken up with the State Governments of
Meghalaya,
Tripura, West
Bengal and Assam for early acquisition
of land for
construction of fencing
at various levels. Matter is being followed up with
them regularly. Besides,
environmental/ forest clearance is also required
for erection of fencing
in 61.6 km. areas falling in Dampa Tiger Reserve,
Mizoram. The matter was
discussed in the National Board of Wildlife (NBWL)
meeting held on 12th
August, 2014. The NBWL had recommended the
project
with certain conditions.
Action has been initiated for compliance of the
conditions imposed by
the NBWL. Public protest is continuing in 24 km by
the people of Meghalaya
opposing the construction of fencing along India-
Bangladesh border. The
State of Meghalaya has been requested to resolve the
issue expeditiously. It
may be mentioned that where construction of fencing
work is in progress or
fencing is to be constructed in future, in
such
areas the presence
of BSF will be increased to ensure
that illegal
Bangladeshi
nationals may not sneak into the
Indian territory
clandestinely.
(vii)
Construction of roads: To facilitate proper patrolling by the
BSF
along Indo-Bangladesh
border, a project for construction of road has been
undertaken. Construction
of 4379 km length of road along Indo-Bangladesh
border has been
sanctioned. Out of which 3769.9 km construction work has
been completed and work
is in progress in 160.23 km which is likely to be
completed by May 2016.
In 222.07 km construction work is not feasible due
to hilly
terrain/low-lying areas. Work in 52.153 km is at estimate/revised
estimate stage. In 174.65
km work cannot be started due to various reasons
mainly delay in land
acquisition by the State Governments concerned. Matter
has been taken up with
the State Governments of Meghalaya, Tripura, West
Bengal and Assam for
early acquisition of land for construction of roads.
Matter is being followed
up with them regularly.
(viii) Installation of
Flood lights along Indo-Bangladesh border: Further,
a project worth Rs. 1327
crore for installation of flood lights along the
border to keep close vigil
at night has been started in 2840 km along Indo-
Bangladesh border areas.
Work has been completed in 1874 kms. Work is in
progress in
330 km. which is likely to be
completed by May 2016.
Installation of flood
lights is not feasible in 219.4 km due to low-lying
area/difficult hilly
terrain. It may be mentioned that the flood lights can
be installed only after
construction of fence and roads along the border.
Therefore, the work of
floodlights in about 416.6 km. could not be started
due to pending fence
work. As stated above, the matter has been taken up
with the State
Governments of Meghalaya, Tripura, West Bengal and Assam for
early acquisition of
land. Matter is being followed up with them regularly.
(ix) Initially,
802 Border Out Posts (BOPs) were set up
along Indo-
Bangladesh border for
effective guarding of the border. In order to reduce
the gap between the two
BOPs, 383 additional BOPs have been sanctioned. Out
of these, 65 BOPs have
been established. Work is going on in 78 BOPs which
is targeted to be
completed by December, 2016. For the remaining BOPs, work
can be started only
after the acquisition of land by the State Governments
concerned. Matter
has been taken up with the State
Governments of
Meghalaya, Tripura, West
Bengal and Assam for early acquisition of land for
construction of BOPs.
Matter is being followed up with them regularly.
(x) BSF has
deployed 28 numbers of speed boats (single
engine), 40
numbers of rigid inflatable
speed boats, 48 numbers of aluminium country
boats, 2 double engine
speed boats, 58 engine fitted country boats along
Indo-Bangladesh border
(Assam sector) for guarding of riverine areas. In
order to
make effective guarding of riverine
international border
additional 10 double
engine speed boats and five 20 meters medium vessels
will be procured within
six to 12 months. Effective guarding of riverine
areas in other sectors
are also being done by the BSF.
(xi) It may
be mentioned that the timelines indicated above, for
the
border infrastructure
works, are tentative in nature and the targets are
subject to the condition
that the "in-progress" works are not stalled due
to the unforeseen
situations like floods, land-slides, public
protests,
litigations, etc.
Further, it is stated that the sanctioned and completed
status of the border
infrastructure mentioned in paras (vi) to (ix)
are
dynamic in nature due to
the difficult terrain along the border
areas
coupled with floods,
land-slide, breach in fence, etc.
(xii) Regular
village co-ordination meetings are being organised by the
field commanders
of BSF to sensitise the border
population. Further,
effective action will be
taken for sensitising the villagers living along
the border areas,
particularly in case any new person is seen
in the
village, they should
report the matter to the local police chowki. Besides,
village defence parties
shall also be activated within one month along the
international border to
keep close vigil in this regard who will report to
the local Police
Stations.
(xiii) 3153
Security personnel provided to the State of
Assam under
Prevention of
Infiltration of Foreigners (PIF) scheme to act as second line
of defence and assist
the BSF to check the illegal
infiltration from
Bangladesh. The State of
Assam will be advised to use and deploy the PIF
personnel to act
effectively with immediate effect.
(xiv) 4 additional
battalions of BSF will be raised in the next financial
year 2015-16 for
deployment along the international Indo Bangladesh border.
Out of 4 BSF battalions,
one each will be deployed along Indo-Bangladesh
border (Assam sector and
West Bengal sector), remaining two will be
as
training
battalions."
43. In addition
to what has been extracted above, the Union,
in the
affidavit filed, has
also stated that for the purpose of
detection of
illegal migrants 500
police units/task force will be activated in the State
within one month.
44. The affidavit
of the Union also indicates that in addition to the 36
Foreigners Tribunals
which are claimed to be functioning in the State of
Assam, 64 additional
Tribunals have been sanctioned in June, 2013.
The
affidavit of the State
of Assam indicates that steps are underway
for
making the aforesaid
Tribunals functional.
45. Insofar as the
mechanism of deportation of illegal migrants after they
are detected to be
illegal migrants is concerned, paragraph 25
of the
affidavit of the Union
which deals with the said aspect of the matter may
also be noticed:
"25. It is
submitted that the existing mechanism/procedure for verification
of nationality inter
alia include that State Government provides details of
declared person in
a prescribed format indicating full
details/contact
address in
Bangladesh including photographs to the
Ministry of Home
Affairs. Such cases
received from the State Government are referred to the
Ministry of External
Affairs for taking up the matter of verification of
nationality with
Bangladesh authorities through diplomatic
channel. The
Ministry of External
Affairs refers such cases to Bangladesh authorities.
Such cases are
investigated by the Bangladesh Home Ministry and they send
their report to
Bangladesh Foreign Ministry. In turn they intimate Indian
Ministry of External
Affairs about the nationality verification or status
of such persons. If some
of the cases are not confirmed by them, in that
event we request
the Bangladesh authorities from the
Bangladesh High
Commission or Deputy
High Commissions in Kolkata or Mumbai, as the case may
be, to avail of consular
access for interaction with such detained persons.
The Bangladesh
authorities depute their representative for interaction with
such persons who are
detained in detention centres/jails. If such persons
disclose their
addresses in the Bangladesh then their
nationality is
confirmed. Some of them
still claim that they are Indian nationals and in
that event Bangladesh
authorities are unable to confirm/nationality of such
persons. Persons
whose nationalities are confirmed by the
Bangladesh
authorities, are
repatriated to Bangladesh immediately. It is
mentioned
that many of the
declared illegal migrants do not disclose their address,
contacts of their
relatives in Bangladesh. In such cases, it becomes very
difficult for Bangladesh
authorities for verification of nationality of
these persons. In the
current years nationality of 32 Bangladeshi nationals
who were in the
detention centres/jails in Assam were confirmed
by the
Bangladesh authorities
and they have been repatriated."
46. On an overall
consideration of the immediate dimensions of the issues
and the potential that
the same have for the future we issue the following
directions under Article
142 of the Constitution of India.
I. Border fencing, Border Roads and provision for
flood lights
The Union will take all effective steps to complete the
fencing
(double coiled wire
fencing) in such parts/portions of the
Indo-Bangla
border (including the
State of Assam) where presently the fencing is yet to
be completed. The
vigil along the riverine boundary will be effectively
maintained by continuous
patrolling. Such part of the international border
which has been perceived
to be inhospitable on account of the difficult
terrain will be
patrolled and monitored at vulnerable points that
could
provide means
of illegal entry. Motorable roads
alongside the
international border,
wherever incomplete or have not yet been built, will
be laid so as to enable
effective and intensive patrolling. Flood lights,
wherever required, will
also be provided while maintaining the
present
arrangements. The
completed part of the border fencing will be maintained
and repaired so as to
constitute an effective barrier to cross
border
trafficking.
The progress achieved at the end of 3
months from today as
against the position on
the ground mentioned in the affidavit of the Union
extracted above will be
monitored by this Court and, depending on what is
revealed upon such
monitoring, further directions including a definite time
schedule for completion
of the works relating to border fencing, border
roads and flood lights
may be made by this Court.
II. Foreigners Tribunals
The Gauhati High Court is requested to expedite and to
finalise
the process of selection
of the Chairperson and Members of the Foreigners
Tribunals, if required
in phases, depending on the availability of officers
opting to serve in the
Tribunals. Within 60(sixty) days of the selection
being finalized by the
Gauhati High Court, the State of Assam will ensure
that the concerned
Foreigners Tribunal become operational.
The Chief Justice of the Gauhati High Court
is requested to
monitor the functioning
of the Tribunals by constituting a Special Bench
which will sit at least
once every month to oversee the functioning of the
Tribunals.
III. Existing Mechanism of Deportation
of Declared Illegal
Migrants
While taking note of the
existing mechanism/procedure for
deportation keeping in
view the requirements of international protocol, we
direct the Union of
India to enter into necessary discussions with
the
Government of Bangladesh
to streamline the procedure of deportation. The
result of the said
exercise be laid before the Court on the
next date
fixed.
47. The
implementation of the aforesaid directions will be monitored
by
this Court on the expiry
of three months from today. In the event
it
becomes so
necessary, the Court will entrust such
monitoring to be
undertaken by an
empowered committee which will be constituted by
this
Court, if and when
required.
48. Insofar as
Writ Petition (C) No. 274/2009 is concerned, we are of the
view that on and from
the date of this judgment the following time schedule
should govern the work
of updating of the NRC in Assam so that the entire
updated NRC is published
by the end of January, 2016.
1.
Preparatory work such as selection of
vendor system (system integrator); development by system
integrator; appointment of staff and training
etc. has already been directed to be completed by
the end of January 2015 by order dated 27.11.2014 of the
Court.
2. The
remaining work of updating the NRC will now
conform to the following time schedule which will be strictly
adhered to.
|Sl. |Task
|Period in |Start
|End |
|No. |
|Months |
|
|
|1. |Publication
of | |
|
|
|
|Records-Search/looki|1 |February,
2015|February, 2015 |
| |ng up of
linkage by | |
| |
| |public
|
| |
|
|2. |Receipt of
|3 |March, 2015
|May, 2015 |
|
|applications |
| |
|
|3. |Verification
|4 |June, 2015
|September, 2015 |
|4. |Draft
Publication | |1st October, |
|
| |
|
|2015 |
|
|5. |Receipt of
Claims & |1 |October, 2015 |October, 2015
|
|
|Objections |
| |
|
|6. |Disposal of
Claims &|2 |November, 2015|December, 2015
|
|
|Objections |
| |
|
|7. |Finalization
of | |1st January, |
|
| |final
updated NRC | |2016
| |
| |Total
Time Period in|11 |
| |
| |Months
|
| |
|
49. All the cases
be listed in the last week of March, 2015 to take note
of the progress of
implementation of the above directions.
....................................J.
(Ranjan
Gogoi)
....................................J.
(R.F. Nariman)
New Delhi;
December 17, 2014.
Page No.5 of 5
Court NO.18 COURT NO.4 SECTION PIL W
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s).
210/2015
AKHIL BHARAT KRISHI GOSEVA SANGH
Petitioner(s)
VERSUS
UNION OF INDIA AND ORS.
Respondent(s)
(with appln. (s) for exemption
from filing O.T.)
Date : 24/04/2015 This petition
was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE S.A. BOBDE
For Petitioner(s) Mr. Soli Sorabjee, Sr. Adv.
Dr. Manish Singhvi, Adv.
Mr. Shantanu Sagar,Adv.
Mr. Vinay K. Sharma, Adv.
For Respondent(s)
UPON hearing the counsel the Court made the following
O R D E R
Issue notice. List with Writ Petition(C) No. 881 of 2014.
(Parveen Kr. Chawla) (Renuka Sadana)
Court
Master Court Master