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Mapping Citizenship in India$

Anupama Roy

Print publication date: 2010

Print ISBN-13: 9780198066743

Published to Oxford Scholarship Online: October 2012

DOI: 10.1093/acprof:oso/9780198066743.001.0001

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(p.183) Appendix II

(p.183) Appendix II

Source:
Mapping Citizenship in India
Publisher:
Oxford University Press

Sarbananda Sonowal v. Union of India

AIR 2005 S C 2920, AIR 2005 SCW 3393

Coram: 3 R.C. LAHOTI, CJI, G. P. MATHUR AND P.K. BALASUBRAMANYAN, JJ.

Writ Petition (C) No.131 of 2000, D/- 12 -7 -2005.

Judgment

G.P. Mathur, J. :- This writ petition under Article 32 of the Constitution of India has been filed by way of public interest litigation for declaring certain provisions of the Illegal Migrants (Determination by Tribunals) Act, (Act No. 39 of 1983) 1983 as ultra vires the Constitution of India, null and void and consequent declaration that the Foreigners Act, 1946 and the Rules made thereunder shall apply to the State of Assam. The second prayer made is to declare the Illegal Migrants (Determination by Tribunals) Rules, 1984 as ultra vires the Constitution of India and also under Section 28 of the aforesaid Act and, therefore, null and void. Some more reliefs have been claimed which will be referred to at the appropriate stage. The respondents to the writ petition are the Union of India and the State of Assam.

2. The case set up in the writ petition is that the petitioner is a citizen of India and is ordinarily resident in the State of Assam. He is a former President of the All Assam Students Union, which is the largest non-political students, organization in the State which was responsible for leading the students movement in Assam in the late 1970s and early 1980s. He is also a former Chairman of the North East Students’ Organisation, which is an umbrella organization of students’ associations from Assam, Meghalaya, Manipur, Nagaland, Tripura and Arunachal Pradesh, and has been actively involved in issues concerning the rights of the people of Assam including the question of (p.184) illegal migrants settled in the said State. The issues raised in the writ petition concern all residents in the State of Assam whose rights as citizens of India have been materially and gravely prejudiced by the operation of the Illegal Migrants (Determination by Tribunals) Act, 1983 (hereinafter referred to as ‘the IMDT Act’ ). The principal grievance of the petitioner is that the IMDT Act is wholly arbitrary, unreasonable and discriminates against a class of citizens of India, making it impossible for citizens who are residents in Assam to secure the detection and deportation of foreigners from Indian soil. The Foreigners Act, 1946, applies to all the foreigners throughout India, but the IMDT Act which was enacted subsequently with the professed aim of making detection and deportation of the illegal migrants residing in Assam easier has completely failed to meet even the standards prescribed in the Foreigners Act. That apart, even those provisions of the IMDT Act which afford some measure of protection to some genuine Indian citizens against illegal migrants are not being properly enforced due to extraneous political considerations in derogation of the rights of Indian citizens living in Assam. The result of the IMDT Act has been that a number of non-Indians, who surreptitiously entered into Assam after March 25, 1971 without possession of valid passports, travel documents or other lawful authority to do so, continue to reside in Assam. Their presence has changed the whole character, cultural and ethnic composition of the area and the IMDT Act creates a situation whereunder it has become virtually impossible to challenge the presence of a foreigner and to secure his detection, deportation or even deletion of his name from the electoral list as they get protection on account of the provisions of the Act. According to the census figures, which have been given in the writ petition, the rate of growth of the population in Assam is far more than the rest of India which shows that large number of foreigners have migrated to different areas of Assam and have settled there.

24. In view of Section 3(1)(c) of the IMDT Act, an illegal migrant is a person with respect to whom all the three conditions, namely, (i) has entered India on or after 25th March, 1971; (ii) is a foreigner which means he is not a citizen of India; and (iii) has entered India without being in possession of a valid passport or other travel documents or any other lawful authority in this behalf, are satisfied. Therefore, if a foreigner has entered India on or after 25th March, 1971, he would be dealt with under the IMDT Act, while as a foreigner who has entered any part of India including Assam before 25th March, 1971, would be dealt with under the Foreigners Act. Section 4 of the IMDT Act is an overriding provision which lays down that the IMDT Act or the Rule or order made therein shall have effect notwithstanding anything contained in the Foreigners Act, 1946 or the Immigrants (Expulsion from Assam) Act, 1950 or the Passport Act or any Rule or Order made thereunder. Section 8(1) confers power on the Central government to make a reference for its decision to the Tribunal whether any person is an illegal migrant or not. This reference can also (p.185) be made on a representation made by an illegal migrant against any order passed against him under the Foreigners Act not to remain in India. This provision gives special advantage to an illegal migrant in Assam, which is not available to any foreigner in rest of India. …

25. It is very important to note here that IMDT Act does not contain any provision similar to Section 9 of the Foreigners Act, 1946 regarding burden of proof. On the contrary it is conspicuously silent about it. In such circumstances a very heavy burden is cast upon the authorities of the State or the applicant to establish that a person is an illegal migrant as defined in Section 3(1)(c) of the IMDT Act and is liable for deportation.

27. To give the exact date of entry into India of a Bangladeshi national, who has illegally and surreptitiously crossed the international border, is not only difficult but virtually impossible. A citizen doing his duty towards nation of pointing out the presence of a Bangladeshi national to the authorities of the State is put under threat of criminal prosecution, if the contents of the application are found to be false. …

28. The analysis of the provisions of the IMDT Act and the Rules made thereunder clearly demonstrate that the provisions thereof are very stringent as compared to the provisions of the Foreigners Act, 1946 or the Foreigners (Tribunals) Order, 1964, in the matter of detection and deportation of illegal migrants. It is far easier to secure conviction of a person in a criminal trial where he may be awarded a capital punishment or imprisonment for life than to establish that a person is an illegal migrant on account of extremely difficult, cumbersome and time consuming procedure laid down in the IMDT Act and the Rules made thereunder. The Act does not contain any provision for constitution of a screening committee which has been done under the Rules and has been conferred a very wide power of rejecting complaints against which no appeal lies. The figures supplied in the initial affidavit filed by the State of Assam show that more than eighty five per cent enquiries initiated were rejected and no reference was made to the Tribunal.

29. The learned Additional Solicitor General and Shri K.K. Venugopal have laid great stress on the submission that the IMDT Act provides a very fair procedure for determining whether a person is an illegal migrant or not as the said question is decided by a Judicial Tribunal consisting of two members, who are or have been Additional District Judges or District Judges. Similarly, the Appellate Tribunal consists of two members, who are or have been Judge of a High Court. The argument overlooks the fact that the Screening Committee does not consist of any judicial member but is manned by the executive.…

30. The State of Assam in its affidavit filed on 24-8-2000 has pointed out some practical problems in the implementation of the IMDT Act due to which the Act has not become effective and the results are extremely poor, which are as follows:

  1. (p.186) “ i) The onus of proof as illegal migrants lies on the prosecution under IMDT Act which is opposed to the Foreigners Act, 1946 under which the onus is on the suspected foreigners.

  2. ii) There is no provision in the IMDT Act for compelling the suspect to furnish particulars required in Form No. I of IMDT Rules and a corresponding penal provision to deal with such suspect in case of their refusal to furnish information as required in Rule 5.

  3. iii) There is no provision for compelling suspect witness to furnish information or statement to Police Officers making enquiries and as such taking recourse to action under Section 176, IPC is difficult in case of refusal.

  4. iv) The Enquiry Officer is not empowered to search home/premises of the suspects nor can he compel the suspects to produce documents to give necessary information.

  5. v) Prosecution witnesses do not appear before the Tribunal for want of necessary allowances.

  6. vi) Once the Tribunals declare a person as an illegal migrant, he/she becomes untraceable either before the notice is served or during the grace period of 30 days.

  7. vii) Notice/summons issued by the Tribunals cannot easily be served due to frequent changes of address by the illegal migrants in unknown destinations.

  8. viii) The expulsion orders cannot be served as the illegal migrants, with frequent change of address, merge with the people of similar ethnic origin.

  9. ix) It is provided in the Act that for filing complaint against a suspected person to determine as to whether he is an illegal migrant, two persons living within the same Police Station are required to file the complaint with filing of affidavit and an amount of Rs 100.00 which was originally Rs 25.00 is to be deposited with the application. This provision of the Act puts a severe restriction in filing any complaint against an illegal migrant.

  10. x) The Tribunals after observing a long drawn procedure declare a person as illegal migrant who is to be deported from India but such deportation becomes very difficult as the illegal migrants change their residence and shift to some other areas.

  11. xi) There are instances of strong resistance to the Enquiry Officer conducting enquiries against the illegal migrants in Char areas (riverine areas) and other locations where there is heavy concentration of immigrant population.”

32. The foremost duty of the Central government is to defend the borders of the country, prevent any trespass and make the life of the citizens safe and secure. The Government has also a duty to prevent any internal disturbance and maintain law and order. Kautilya in his masterly work ‘The Arthashastra’ has said that a King had two responsibilities to his state, one internal and one external, for which he needed an army. One of the main responsibilities was Raksha or protection of the state from external aggression. … The very first (p.187) entry, namely, Entry 1 of List I of the Seventh Schedule is ‘Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination of effective demobilization’. In fact entries 1 to 4 of List I of Seventh Schedule mainly deal with armed forces. Article 355 of the Constitution of India reads as under :-

‘355. Duty of the Union to protect States against external aggression and internal disturbance. — It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.’

The word ‘aggression’ is a word of very wide import. Various meanings to the word have been given in the dictionaries, like, ‘an assault, an inroad, the practice of setting upon anyone; an offensive action or procedure; the practice of making attacks or encroachments; the action of a nation in violating the rights especially the territorial rights of another nation; overt destruction; covert hostile attitudes.’

The word ‘aggression’ is not to be confused only with ‘war’. Though war would be included within the ambit and scope of the word ‘aggression’, but it comprises many other acts which cannot be termed as war. … The framers of the Constitution have consciously used the word ‘aggression’ and not ‘war’ in Article 355.

…‘aggression’ is, therefore, an all comprehensive word having very wide meaning. Its meaning cannot be explained by a straight jacket formula but will depend on the fact situation of every case.

The definition of ‘aggression’ as adopted by UN General Assembly Resolution 3314 (XXIX) was, however, for a limited purpose… the acts enumerated therein which may amount to aggression cannot restrict or curtail the meaning or the sense in which the word ‘aggression’ has been used in Article 355 of the Constitution.

37. The very first sentence of the Statement of Objects and Reasons of the IMDT Act says ‘the influx of foreigners who illegally migrated into India across the borders of the sensitive Eastern and North-Eastern regions of the country and remained in the country poses a threat to the integrity and security of the said region.’ It further says that ‘continuance of these persons in India has given rise to serious problems.’ The Preamble of the Act says that ‘the continuance of such foreigners in India is detrimental to the interests of the public of India.’ The Governor of Assam in his report dated 8th November, 1998 sent to the President of India has clearly said that unabated influx of illegal migrants of Bangladesh into Assam has led to a perceptible change in the demographic pattern of the State and has reduced the Assamese people to a minority in their own State. It is a contributory factor behind the outbreak of insurgency in the State and illegal migration not only affects the people of (p.188) Assam but has more dangerous dimensions of greatly undermining our national security. Pakistan’s ISI is very active in Bangladesh supporting militants in Assam. Muslim militant organizations have mushroomed in Assam. The report also says that this can lead to the severing of the entire landmass of the northeast with all its resources from the rest of the country which will have disastrous strategic and economic consequences. The report is by a person who has held the high and responsible position of Deputy Chief of the Army Staff and is very well equipped to recognize the potential danger or threat to the security of the nation by the unabated influx and continued presence of Bangladeshi nationals in India. Bangladesh is one of the world’s most populous countries having very few industries. The economic prospects of the people in that country being extremely grim, they are too keen to cross over the border and occupy the land wherever it is possible to do so. The report of the Governor, the affidavits and other material on record show that millions of Bangladeshi nationals have illegally crossed the international border and have occupied vast tracts of land like ‘Char land’, barren or cultivable land, forest area and have taken possession of the same in the State of Assam. Their willingness to work at low wages has deprived Indian citizens and specially people in Assam of employment opportunities. This, as stated in the Governor’s report, has led to insurgency in Assam. Insurgency is undoubtedly a serious form of internal disturbance which causes grave threat to the life of people, creates panic situation and also hampers the growth and economic prosperity of the State of Assam though it possesses vast natural resources.

38. This being the situation there can be no manner of doubt that the State of Assam is facing ‘external aggression and internal disturbance’ on account of large scale illegal migration of Bangladeshi nationals. It, therefore, becomes the duty of Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose.

39. We have considered the provisions of the Foreigners Act, Foreigners (Tribunals) Order, 1964 and also the IMDT Act and the Rules made thereunder in considerable detail in the earlier part of the judgment. They clearly demonstrate that the procedure under the Foreigners Act and also under the Foreigners (Tribunals) Order, 1964 is far more effective in identification and deportation of foreigners as compared to the procedure under the IMDT Act and the Rules made thereunder. … As already discussed, the presence of such a large number of illegal migrants from Bangladesh, which runs into millions, is in fact an ‘aggression’ on the State of Assam …. The impact is such that it not only affects the State of Assam but it also affects its sister States like Arunachal Pradesh, Meghalaya, Nagaland, etc. as the route to the said places passes through the State of Assam.

40. The Parliament enacted the Immigrants (Expulsion from Assam) Act, 1950 and the Statement of Objects and Reasons thereof reads as follows:

(p.189) ‘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.’

The Preamble to the aforesaid Act says:

‘An Act to provide for the expulsion of certain immigrants from Assam.’

Section 2 of this Act lays down that if the Central government is of the opinion that any person or class of persons, having been ordinarily resident in any place outside India, has or have, 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 interest of the general public of India or of any section thereof or of any Scheduled Tribe in Assam, the Central government may by order direct such person or class of persons to remove himself or themselves from India or Assam and give such further direction in regard to his or their removal from India. Proviso of this Section says that it will not 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 his place of residence in such area and who has been subsequently residing in Assam. Section 3 confers power on Central government to delegate the powers and duties conferred upon it by Section 2 to any officers subordinate to the Central government. It may be noted that the reference to the word “East Bangal” in the Statement of Objects and Reasons of the aforesaid Act, which came into force on 1st March, 1950, meant East Pakistan, which is the present Bangladesh. Realising the serious law and order problem created by migration from East Pakistan and the serious situation arising therefrom the said Act was enacted and conferred very wide powers upon the Central government to direct removal of any person outside India. However, on account of Section 4 of the IMDT Act the Immigrants (Expulsion from Assam) Act, 1950 has been superseded and the provisions of the said Act have ceased to apply to the State of Assam. Thus by enacting the IMDT Act the Parliament has divested the Central government of the power to remove migrants from Bangladesh, whose presence was creating serious law and order problem, which fact had been realized by the Central government as early as in 1950. The IMDT Act instead of maintaining peace has only revived internal disturbance.

42. The above discussion leads to irresistible conclusion that the provisions of the IMDT Act and the Rules made thereunder clearly negate the constitutional mandate contained in Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect every State against external aggression and internal disturbance. The IMDT Act, which contravenes Article 355 of the Constitution, is, therefore, wholly unconstitutional and must be struck down.

(p.190) 43. Shri Ashok Desai, learned senior counsel appearing for the writ petitioner, has submitted that the application of the IMDT Act to the State of Assam alone is wholly discriminatory and violates Article 14 of the Constitution as the classification made is not founded upon any intelligible differentia and there is no nexus between the basis of the classification and the object of the IMDT Act. Reliance has been placed on a Seven Judge Bench decision of this Court in Budhan Choudhry v. State of Bihar, AIR 1955 SC 191 and some other cases in support of this submission. Shri Amarendra Saran, learned Additional Solicitor General and also Shri K.K. Venugopal, learned senior counsel appearing for the State of Assam, have submitted that the classification made on the basis of historical facts and/or geographical criteria is a perfectly valid classification and the petitioner cannot complain of violation of Article 14 on the ground that the IMDT Act has been made applicable only to the State of Assam. It has been further urged that a classification made whereunder an Act is made applicable only to some of the Districts in a State or even to a part of a District on account of some geographical consideration would be perfectly valid and would not offend Article 14 of the Constitution in any manner. In support of this submission, learned counsel have placed reliance on several decisions namely, D.P. Joshi v. State of Madhya Bharat, AIR 1955 SC 334, Kishan Singh v. State of Rajasthan, AIR 1955 SC 795, Gopi Chand v. Delhi Administration, AIR 1959 SC 609, Kangshari Haldar v. State of West Bengal, AIR 1960 SC 457 and Clarence Pais v. Union of India, 2001 (4) SCC 325. …

45. As mentioned earlier, the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of northeastern region. Their presence has changed the demographic character of that region and the local people of Assam have been reduced to a status of minority in certain districts. In such circumstances, if the Parliament had enacted a legislation exclusively for the State of Assam which was more stringent than the Foreigners Act, which is applicable to rest of India, and also in the State of Assam for identification of such persons who migrated from the territory of present Bangladesh between 1st January, 1966 to 24th March, 1971, such a legislation would have passed the test of Article 14 as the differentiation so made would have had rational nexus with the avowed policy and objective of the Act. But the mere making of a geographical classification cannot be sustained where the Act instead of achieving the object of the legislation defeats the very purpose for which the legislation has been made. As discussed earlier, the provisions of the Foreigners Act are far more effective in identification and deportation of foreigners who have illegally crossed the international border and have entered India without any authority of law and have no authority to continue to remain in India. For satisfying the test of Article 14, the geographical factor alone in making a classification is not enough but there must be a nexus with the objects sought to be achieved. If geographical consideration becomes the sole criteria completely overlooking the other aspect of ‘rational nexus with the policy (p.191) and object of the Act’ it would be open to the legislature to apply enactments made by it to any sub-division or district within the State and leaving others at its sweet will. This is not the underlying spirit or the legal principle on which Article 14 is founded. Since the classification made whereby IMDT Act is made applicable only to the State of Assam has no rational nexus with the policy and object of the Act, it is clearly violative of Article 14 of the Constitution and is liable to be struck down on this ground also.

46. Shri Ashok Desai, learned senior counsel for the petitioner has also urged that the reports of the Governor and also the earlier counter affidavits filed by Union of India and State of Assam show that the whole demographic pattern of the State of Assam has undergone a change and the local people of Assam have been reduced to a minority in their own State on account of large influx of illegal migrants from Bangladesh. According to learned counsel, this amounts to violation of the rights guaranteed under Article 29(1) of the Constitution as the people of Assam have a fundamental right to conserve their language, script or culture. Undoubtedly, Article 29(1) confers a fundamental right on all sections of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own to conserve the same and any invasion of this right would be ultra vires. The enforcement of the IMDT Act has no doubt facilitated to a very large extent the illegal migrants from Bangladesh to continue to reside in Assam, who on account of their huge number affect the language, script and culture of the local people. However, we do not wish to express any concluded opinion whether on the fact situation the IMDT Act can be thus said to be violating Article 29(1) of the Constitution as the necessary factual basis for determination of this question has not been laid in the pleadings.

48. We consider it necessary here to briefly notice the law regarding deportation of aliens as there appears to be some misconception about it and it has been argued with some vehemence that aliens also possess several rights and the procedure for their identification and deportation should be detailed and elaborate in order to ensure fairness to them.

49. In Introduction to International Law by J.G. Starke (1st Indian re-print, 1994) in Chapter 12 (page 348), the law on the points has been stated thus: -

‘Most States claim in legal theory to exclude all aliens at will, affirming that such unqualified right is an essential attribute of sovereign Government. The Courts of Great Britain and the United States have laid it down that the right to exclude aliens at will is an incident of territorial sovereignty. Unless bound by an international treaty to the contrary, States are not subject to a duty under international law to admit aliens or any duty thereunder not to expel them. Nor does international law impose any duty as to the period of stay of an admitted alien.’

Like the power to refuse admission this is regarded as an incident of the State’s territorial sovereignty. International law does not prohibit the expulsion (p.192) enmasse of aliens (page 351). Reference has also been made to Article 13 of the International Covenant of 1966 on Civil and Political Rights which provides that an alien lawfully in the territory of a State party to the Covenant may be expelled only pursuant to a decision reached by law, and except where compelling reasons of national security otherwise require, is to be allowed to submit the reasons against his expulsion and to have his case reviewed by and to be represented for the purpose before the competent authority. It is important to note that this Covenant of 1966 would apply provided an alien is lawfully in India, namely, with valid passport, visa, etc. and not to those who have entered illegally or unlawfully. Similar view has been expressed in Oppenheim’s International Law (Ninth Edn. 1992 - in paragraphs 400, 401 and 413). The author has said that the reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy, competent to exclude aliens from the whole or any part of its territory. In paragraph 413 it is said that the right of States to expel aliens is generally recognized. It matters not whether the alien is only on a temporary visit, or has settled down for professional business or any other purposes on its territory, having established his domicile there. A belligerent may consider it convenient to expel all hostile nationals residing or temporarily staying within its territory; although such a measure may be very harsh on individual aliens, it is generally accepted that such expulsion is justifiable. Having regard to Article 13 of the International Covenant on Civil and Political Rights, 1966, an alien lawfully in a State’s territory may be expelled only in pursuance of a decision reached in accordance with law.

52. In Louis De Raedt v. Union of India, 1991 (3) SCC 554 the two foreign nationals engaged in missionary work had come to India in 1937 and 1948 respectively with proper documents like passport, visa, etc. and were continuously living here but by the order dated 8th July, 1987 their prayer for further extension of the period of stay was rejected and they were asked to leave the country by 31st July, 1987. They then challenged the order by filing a writ petition. This Court held that the power of the Government of India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering its discretion and the executive Government has unrestricted right to expel a foreigner. So far as right to be heard is concerned, there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case. AIR 1991 SC 1886 : 1991 AIR SCW 2113.

53. In State of Arunachal Pradesh v. Khudi Ram Chakma, 1994 (Supp) SCC 615, following Louis De Raedt (supra), it was held that the fundamental right of a foreigner is confined to Article 21 for life and liberty and does not include the right to reside and stay in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of the country. After referring to some well-known and authoritative books on International Law it was observed that the persons who reside in the territories of countries of which they are not nationals, possess a special status under International Law. States reserve the (p.193) right to expel them from their territory and to refuse to grant them certain rights which are enjoyed by their own nationals like right to vote, hold public office or to engage in political activities. Aliens may be debarred from joining the civil services or certain profession or from owning some properties and the State may place them under restrictions in the interest of national security or public order. Nevertheless, once lawfully admitted to a territory, they are entitled to certain immediate rights necessary to the enjoyment of ordinary private life. Thus, the 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 they are liable to be deported. AIR 1994 SC 1461 : 1994 AIR SCW 904.

55. Shri K.K. Venugopal has submitted that Section 8 of the IMDT Act is similar to Section 9 of the Citizenship Act and, therefore, the same interpretation should be placed upon Section 8. In our opinion it is not possible to accept such a contention. Section 9 of the Citizenship Act applies to a situation where the question is whether an Indian citizen has lost his citizenship by acquiring the citizenship of a foreign country. Such a question can be decided only by the Central government. We are concerned here with identification and deportation of such Bangladeshi nationals who have illegally crossed the international border and have taken up residence in Assam. The question of loss of Indian citizenship on account of acquisition of citizenship of another country does not at all arise for consideration here.

57. To sum up our conclusions, the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 are ultra vires the Constitution of India and are accordingly struck down. The Illegal Migrants (Determination by Tribunals) Rules, 1984 are also ultra vires and are struck down. As a result, the Tribunals and the Appellate Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall cease to function. The Passport (Entry into India) Act, 1920, the Foreigners Act, 1946, the Immigrants (Expulsion from Assam) Act, 1950 and the Passport Act, 1967 shall apply to the State of Assam. All cases pending before the Tribunals under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided in the manner provided in the Foreigners Act, the Rules made thereunder and the procedure prescribed under the Foreigners (Tribunals) Order, 1964. In view of the finding that the competent authority and the Screening Committee had no authority or jurisdiction to reject any proceedings initiated against any alleged illegal migrant, the orders of rejection passed by such authorities are declared to be void and non est in the eye of law. It will be open to the authorities of the Central government or state government to initiate fresh proceedings under the Foreigners Act against all such persons (p.194) whose cases were not referred to the Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 by the competent authority whether on account of the recommendation of the Screening Committee or any other reason whatsoever. The appeals pending before the Appellate Tribunals shall be deemed to have abated.

58. In view of the discussion made above, the writ petition succeeds and is allowed with the following directions:

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

  2. (2) The Tribunals and the Appellate Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall cease to function;

  3. (3) All cases pending before the Tribunals under the Illegal Migrants (Determination by Tribunals ) Act, 1983 shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided in the manner provided in the Foreigners Act, the Rules made thereunder and the procedure prescribed under the Foreigners (Tribunals) Order, 1964.

  4. (4) It will be open to the authorities to initiate fresh proceedings under the Foreigners Act against all such persons whose cases were not referred to the Tribunals by the competent authority whether on account of the recommendation of the Screening Committee or any other reason whatsoever.

  5. (5) All appeals pending before the Appellate Tribunal shall be deemed to have abated.

  6. (6) The respondents are directed to constitute sufficient number of Tribunals under the Foreigners (Tribunals) Order, 1964 to effectively deal with cases of foreigners, who have illegally come from Bangladesh or are illegally residing in Assam.