Date of judgement: 22/05/2014
Court: Gauhati High Court
Coram: B.P. Katakey, A.K. Goswami, Ujjal Bhuyan
The petitioners are all members of the same family, residing in Lankajan, Assam. Petitioner no.1 is the husband of Petitioner no.2 and petitioners no.3 & 4, are their children. A reference was made against them under section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (hereinafter referred to as IMDT). The tribunal on 17/06/2005 found them to be illegal migrants and ordered their deportation.
In 2011, more than 5 years after the order, the petitioners filed a writ petition at the Gauhati High Court by virtue of Article 226. A single-judge bench of this High Court dismissed the petition and further ordered the deletion of their names from the voters list and their placement into detention camps until deportation. The judge also recognised that the matter ran for over 14 years and spanned 76 sittings and felt that it frustrated the very purpose of the Tribunals.
The petitioners later sought the remittance of the matter to a Tribunal under the Foreigners (Tribunal) Order, 1964 which was duly permitted. They, then filed a petition before the tribunal to secure their release from the detention camp but the same was rejected on 19/10/2011.
The Tribunal’s order was challenged before a single-judge bench of the High Court and this forms the crux of this petition. The learned judge found it pertinent to refer the matter before a full bench of the High Court to decide upon certain issues. The present case arises in pursuance of the referral order passed by the single judge bench on 05/02/2013 to consider the following issues.
The petition was filed against 3 respondents, namely, the State of Assam, Union of India and the Superintendent of Police (Border), Nagaon. The order was written by Justice A.K. Goswami on behalf of the full bench. The bench had previously ordered the Tribunal to continue with the proceedings but not pass an order as to their status of migrant until directed by the Court. The verdict considered the factual matrix of the issue only to list the dates of occurrences. The decision only sought to provide answers to the issues posed by the Single judge bench and not determine the petitioners’ status.
The Court studied the applicability of the IMDT Act, 1983 that was enacted with the purpose of establishing tribunals in light of the growing number of illegal migrants. The Objects of the Act signify that several individuals have illegally entered India on and after the 25th of March, 1971 and have illegally remained in the county. The objects also add that migrants tried to pass off as Indian citizens and were able to blend in due to shared ethnic similarities. However, the same was felt to be detrimental to the interests of the general public and thus demanded protection.
Section 3(1)(c) of the Act defines an Illegal migrant as a foreigner and has entered India on or after 25/03/1971 without a valid passport or travel document or any other lawful authority in that behalf. A foreigner has been defined under section 2(a) of the Foreigners Act, 1946 as one who is not a citizen of India. Despite being aimed at doing a greater deed for Indian citizens, the Act by itself was found to have been framed in a manner that made it more favourable to the illegal migrants and detrimental to Indians.
On 12/07/2005, the Supreme Court of India, in Sarbananda Sonowal v. Union of India (AIR 2005 SC 2920) held the IMDT Act to be ultra vires and struck down the legislation in entirety. The 2005 verdict acknowledged the fact that Assam was facing external aggression in addition to internal disturbances and stated that the IMDT Act was denigrating the situation with its stringent, cumbersome and time-consuming procedures. The 3 judge bench of the Supreme Court opined that the Act created difficulties and was inadvertently sheltering illegal migrants instead of deporting them. The existence of the Act was felt to have negated the state’s duty under Article 355 of protecting against external aggression.
The judgement ordered the remitting of matters pending before IMDT Tribunals to those under the Order of 1964. Appeal cases pending before IMDT Tribunals were held to have abated with the cancelling of the IMDT Act as well as its Rules.
The precedent in Sarbananda was heavily relied upon by the Petitioners to quash orders passed by IMDT tribunals before the 2005 declaration. They urged the bench to either quash the Tribunal’s order or initiate a fresh proceeding under the Order of 1964. The respondents contended that no inference as to the invalidity of previous orders by the Tribunal could be derived from the precedent as it merely stated alternative remedies for matters pending adjudication.
The learned judges enunciated that the Court was imposed with the sensitive duty of balancing the issue of illegal migrants on one side as well as the problem of accidental waiving of legitimate citizenship on the other. They affirmed the respondent’s contention as it was rightly pointed out that the verdict in Sarbananda made no reference as to the validity of previous proceedings.
Reference was made to Section 9 of the Foreigners Act, 1946 that imposed the onus of proving the legitimacy of citizenship upon the person who was alleged to be an illegal migrant. This was further related to the IMDT Act that was silent on that matter and incidentally placed the burden on the State to prove illegitimacy rather than the concerned person. The decision did not halt by giving their order but rather expounded on it with hypothetical situations. It was decided that any final order passed by an IMDT Tribunal before the 2005 declaration was valid in the eyes of law and could not be set aside. The rationale was succinctly communicated by stating that proceedings under IMDT imposed an absolute burden on the State to prove illegitimacy. If a person was found to be an illegal migrant after such a menial procedure, its validity cannot be contested due to the inherent difficulties in proving otherwise. A request to set it aside and then asking for a fresh proceeding destroys the entire aim of deporting illegal migrants. If a person is declared to be an illegal migrant, he is liable for deportation and such order is binding upon him. Such orders are not obliterated only because the IMDT Act has been struck down.
The Court granted additional directions for matter pending before an Appellate authority of the IMDT by highlighting the remedial nature of our Constitution. An aggrieved individual can file a suit before a High Court by virtue of Article 226. It was added that applications under 226 had to be studied individually purely based on merit. The onus would directly fall upon the alleged migrant in consonance to the Foreigners Act, 1946.
With regard to the second issue, it was established that a fresh trial under the Order of 1964 could not be claimed as a matter of right but only if the merits of the case warranted such a remand. Moreover, additional liberty was granted to the state to open cases under the Order of 1964 for matters whose references were denied by IMDT Tribunals and Committees due to their faulty nature.
As of 08/05/2014, proceedings against the petitioners were complete and the Tribunal was awaiting the single-judge bench’s verdict before passing their order. The purpose for this verdict was not to decide the specific matter of Anowar Ali and his family instead, to lay down a directive for future matters.
The Hon’ble High Court established that orders passed under IMDT prior to the declaration did not cease to exist. Orders passed under the IMDT that had a provision for appeal could be contested through a writ of certiorari under Article 226. The Court also has the power to forward a case to be decided under the Order of 1964. Furthermore, the State was additionally granted the power to raise fresh cases under Order of 1964 against those that the IMDT tribunals had held not to be illegal migrants.
The decision laid down by the 3 judge bench concluded on the note that any person held to be an illegal migrant and whose petition has been dismissed is liable to be deported and not entitled to ask for a fresh proceeding. The judges gave their verdict and asked the registry to place the WP before the single judge bench to appropriately decide on the matter. In 2019, the judgement in Anowar Ali was constituted to be the guiding authority for orders passed under the IMDT in the Assam NRC case of Assam Public Works v. Union of India (2019, 9 SCC 70).