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CASE NO.: Writ Petition (civil)  117 of 2006

PETITIONER: Sarbananda Sonowal

RESPONDENT: Union of India

DATE OF JUDGMENT: 05/12/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T With Writ Petition (Civil) No. 119 of 2006    

Charan Chandra Deka & Ors.                              ...Petitioners

                                       Versus

Union of India & Anr.                                   ...Respondents

S.B. SINHA, J.           

1.              The validity of two pieces of subordinate legislation,  one amending the Foreigners (Tribunal) Order, 1964 and the  other, the Foreigners (Tribunal) for Assam Order, 2006 in the  context of an earlier decision rendered by this Court is the  question involved in these Writ Petitions filed under Article 32  of the Constitution of India by the petitioners.

2.              Sarbananda Sonowal filed WP (C) No. 131 of 2000  under Article 32 of the Constitution of India against Union of  India and others for declaring some of the provisions of the  Illegal Migrants (Determination by Tribunals) Act, 1983 (for  short "the IMDT Act") as unconstitutional, null and void and a  consequent declaration that the Foreigners Act, 1946 (for  short ’the 1946 Act’) and the Rules made thereunder would  apply to the State of Assam.  The pleas raised in the said writ  petition found favour with a 3-Judge Bench of this Court in  the decision reported in [(2005) 5 SCC 665].  The said decision  is hereinafter referred to as Sonowal I.    It was directed  therein: "84. In view of the discussion made above, the  writ petition succeeds and is allowed with the  following directions: (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 and are struck  down. (2) The Tribunals and the Appellate  Tribunals constituted under the Illegal  Migrants (Determination by Tribunals) Act,  1983 shall cease to function.

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

               The Court while issuing the aforementioned  directions considered the provisions of the IMDT Act in great  detail vis-‘-vis, the duties and functions of the Central  Government and other States in terms of Article 355 of the  Constitution of India and the problem of illegal migration of  citizens of Bangladesh inter alia into the State of Assam and  the threat posed by it to the security of the nation.

3.              This Court opined that there was absolutely no  reason why the illegal migrants coming into the State of Assam  should be treated differently from those who had migrated to  the other parts of the country having regard to the provisions  of the Citizenship Act, 1955 and the Foreigners (Tribunals)  Order 1964 (for short "the 1964 Order").

4.              Subsequent to the said decision, instead of  implementing the directions therein, the Central Government  in exercise of its power under Section 3 of the 1946 Act made  an Order known as "the Foreigners (Tribunal) Amendment  Order, 2006" (for short "the 2006 Order"), which was  published in the Official Gazette dated 10th February, 2006.   On 10th February, 2006, the Central Government amended the  1964 Order principally making the same inapplicable to the  State of Assam.  Clause 2 of the said Order reads thus: "In the Foreigners (Tribunal) Order, 1964:-

(a)     paragraph 1 shall be  renumbered as sub-paragraph  (1) thereof and after sub- paragraph (1) as so renumbered  the following sub-paragraph  shall be inserted, namely:-

       "(2)    This Order shall apply to  the whole of India except the

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State of Assam."

               Thus by way of a subordinate legislation the  directions issued by this Court in the earlier binding decision  to get all pending cases relating to alleged immigrants decided  by the Tribunal under the 1964 Order is sought to be nullified.   It is done in spite of the reasoning in Sonowal I leading to the  directions issued therein.  It must be noted that the parent Act  stands unamended.  

5.              Instead of obeying the mandamus issued by this  Court essentially in the interests of national security and to  preserve the demographic balance of a part of India, that is  Bharat, and implementing the 1964 Order in Assam in letter  and spirit, the Authorities that be, have chosen to make the  1964 Order itself inapplicable to Assam.  Whether the  authority that should be interested in the welfare of the  nation, its security and integrity, can do so in the light of the  facts noticed and relied on in Sonowal I  is the question?  In  the reply filed on behalf of the Union of India, after stating that  some steps have been taken to implement the directions of  this Court in the earlier writ petition, it is stated: "In the meantime, Representations were  received by the Government of India from  various organizations of Assam for providing  safeguards for genuine Indian citizens either by  framing a new law or by amending the existing  provisions.  Apprehensions of  trouble/victimization of genuine citizens at the  hands of the specified authorities in the name  of detection and deportation of foreigners was  expressed."

Adequate facts, nay, no fact, is pleaded to justify such  apprehension. It is not explained how Indian citizens would  suffer if the 1964 Order is enforced.   On the other hand, it is  stated in the reply itself in paragraph 2:

"In exercise of the powers conferred by Section  3 of the Foreigners Act, 1946, Foreigners  Tribunals ("Tribunals") were set up in the  1960s under the Foreigners (Tribunal) Order,  1964 in the State of Assam only though the  Foreigners (Tribunal) Order 1964 has all India  application and Tribunals can be set up in  other parts of the country.  Under the  Foreigners (Tribunal) Order, 1964, the  procedure provided for disposal of questions  referred to the Tribunals was that the Tribunal  would serve upon the person, to whom the  question relates, a copy of the main grounds  on which the person is alleged to be a  foreigner and reasonable opportunity was  provided for making a representation and  producing evidence in defence.  Such a person  was also to be afforded personal hearing if so  desired."

Nothing was also shown at the time of arguments to persuade  us to come to a conclusion that the 1964 Order worked  harshly on anyone who was sought to be proceeded against  under the Foreigners Act and under that Order.    The present exercise is therefore seen to be not a  commendable attempt to evade the directions issued by this

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Court in the earlier round.  That too, by way of subordinate  legislation. Though, we would  normally desist from  commenting, when the security of the nation is the issue as  highlighted in Sonowal I, we have to say that the bona fides of  the action leaves something to be desired.  Although bona  fides on the part of authority vested with power to make  delegated legislation ordinarily is not a relevant factor, the  question is whether the manner in which it is sought to be  done is sufficient in law to get rid of the judgment of this Court  in Sonowal I.  After thus removing the 1964 Order from the  scene, the new Order of 2006 has been issued.  Here also,  except the reason already set out, no particular reason is given  for making a departure from the existing procedure.  It is  stated in paragraph 2(I) of the reply: "On consideration of the representations,  provisions of the Foreigners Act, 1946 and the  peculiar situation of Assam, it was considered  necessary to have a separate procedure for the  Foreigners Tribunals in the State of Assam.  It  is pertinent to note that a separate procedure  for detection of foreigners has already been in  existence in Assam for the last 40 years."

No facts or details are furnished in support.  What is the  peculiar situation other than what is noticed in Sonowal I is  not explained.   

6.              Paragraph 2 of the 2006 Order provides for  constitution of tribunals in the following terms:

"2.   Constitution of Tribunals:-  (1) The  Central Government or any authority specified  in this regard shall, by order, refer the  question as to whether a person is or is not   foreigner within the meaning of he Foreigners  Act 1946 (31 of 1946) to a Tribunal to be  constituted for the purpose, for its opinion.

(2)             The registering authority appointed  under sub-rule (1) of rule 16F of the  Citizenship Rules, 1956 shall refer to the  Tribunal the question whether a person of  Indian origin complies with any of the  requirements under sub-section (3) of Section  6A of the Citizenship Act, 1955 (57 of 1955).

(3)             The Tribunal shall consist of such  number of persons having judicial experience  as the Central Government may think fit to  appoint.

(4)     Where the Tribunal consists of two or  more members, one of them shall be appointed  as the Chairman thereof.

(5)     Till any Tribunal is constituted under  sub-paragraph (1), the Tribunal constituted  under the Foreigners (Tribunal) Order, 1964  shall be deemed to be Tribunals for the  purposes of this Order."

Paragraph 3 refers to the procedure for disposal of questions  arising. "3.     Procedure for disposal of questions:- (1)  The  Tribunal upon receipt of a reference under sub-

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paragraph (1) of paragraph 2, shall consider  whether there is sufficient ground for proceeding  and if the Tribunal is satisfied that basic facts are  prima facie established, it shall serve on the person  to whom the question relates, a copy of the main  grounds on which he is alleged to be a foreigner and  give him a reasonable opportunity of making a  representation and producing evidence in support of   his case and after considering such evidence as may  be produced and after hearing such persons as may  desire to be heard, the Tribunal shall submit its  opinion to the officer or authority specified in this  behalf in the order of reference.

(2)         The Tribunal shall, before giving its opinion  on the question referred to in sub-paragraph (2) of  paragraph 2, give the person in respect of whom the  opinion is sought, a reasonable opportunity to  represent his case.

(3)    Subject to the provisions of this Order, the  Tribunal shall have power to regulate its own  procedure."

       The Tribunal in terms of paragraph 4 of the 2006  Order shall have the powers of a Civil Court while trying a suit  under the Code of Civil Procedure in respect of (i) summoning  and enforcing the attendance of any person and examining  him on oath; (ii) requiring the discovery and production of any  document; and (iii) issuing commissions for the examination of  any witness.

7.              Apart from the provisions of the Constitution of  India, the matter relating to determination of the question as  to whether a person is a foreigner or not is provided under the  1946 Act.   The Central Government, in exercise of its power  conferred under the said Act, made an Order known as the  Foreigners (Tribunals) Order, 1964.

               Section 9 of the 1946 Act reads as under: "9.     Burden of proof:-- If in any case not falling  under Section 8 any question arises with reference  to this Act or any order made or direction given  thereunder, whether any person  is or is not a  foreigner or is or is not a foreigner of a particular  class or description the onus of proving that such  person is not a foreigner or is not a foreigner of such  particular class or description, as the case may be,  shall, notwithstanding anything contained in the  Indian Evidence Act, 1872 (1 of 1872), lie upon  such person."

               Rule 3 of the 1964 Order provided the procedure for  disposal of the question.   The 1964 Order has now been made  inapplicable to the State of Assam.  Despite a clear direction in  Sonowal I in regard to strict implementation of the equality  clause amongst the migrants from Bangaldesh, the Central  Government made the 2006 Order which is applicable to the  State of Assam only.

8.              The factual position that obtains is that as on 31st  December, 2005, 14,947 cases were pending before the  Foreigners Tribunals functioning in Assam and 29,429  persons who came to Assam between 1st January, 1966 and

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24th March, 1971 were identified as foreigners.   As far as the  Tribunals set up under the IMDT Act were concerned, as on  12th July, 2005, 88,770 cases were pending and 12,846  persons who came into Assam after 25th March, 1971 were  declared as illegal migrants.

9.              We shall first consider the validity of the  amendment to the 1964 Order by notification No. GSR 57 (E)  dated New Delhi, the 10th February 2006 so as to make it  inapplicable to the State of Assam in the context of prayer (A)  in W.P. (C) No. 119 of 2006.  It has already been held in  Sonowal I that the special treatment sought to be meted out to  Assam is not justified and the extending of a special Act to  that territory alone is discriminatory.  The same reasoning  applies on all fours to the removing of the 1964 Order from the  scene.  Such removal or such making of the Order of 1964  inoperative to the State of Assam alone is discriminatory and  is violative of Article 14 of the Constitution.   

10.             We have already pointed out that no reasons are  given to justify such exclusion.  It was all the more necessary  to do so in the light of the reasoning in Sonowal I and the  directions issued therein.  It is hence found that the  notification making the 1964 Order inapplicable to Assam by  amending Clause 2 of the said Order is unreasonable and  arbitrary, violating Article 14 of the Constitution of India.   

11.             In making the 1964 Order inapplicable to Assam  alone, when the other States having boundaries with  Bangladesh, are still expected to apply that Order, the  respondents have acted arbitrarily and have not kept in mind  the interests of the country as highlighted in Sonowal I.  No  rational reason has been put forward to justify such a  separate treatment for Assam especially in the context of the  report of the then Governor of Assam and the other facts  discussed in the earlier decision and the earlier decision itself.   Therefore, the amendment brought about to the 1964 Order by  Notification G.S.R. 57 (E) dated New Delhi, the 10th February  2006 issued by the Government of India has to be held to be  violative of Article 355 and Article 14 of the Constitution.  The  said Notification is struck down in terms of prayer (a) in W.P.  (Civil) No. 119 of 2006.   

12.             It is also seen to be an attempt by way of a piece of  subordinate legislation to nullify the mandamus issued by this  Court.   The parent Act remains in force and applicable.   It is  not open to the authority concerned to nullify the directions of  this Court by way of subordinate legislation by making the  very 1964 Order inapplicable to the State of Assam, especially  in the light of the reasoning in Sonowal I.

13.             Thus, if the Order making the 1964 Order to the  State of Assam inapplicable is found invalid, there is no  question of the 2006 Order being promulgated to replace the  1964 Order.   The attempt has to be held to be still born  especially in the context of Sonowal I and the reasoning  therein.   The field continues to be occupied by the 1964 Order  and the 2006 Order cannot operate parallelly.   Moreover, the  2006 Order will fall on the basis of the reasoning in Sonowal I.

14.             Though this is the position, out of deference to the  arguments raised before us, we will consider the challenge to  the 2006 Order independently.

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15.             A comparative chart showing the changes brought  about in paragraphs 2 and 3 of the 1964 Order by reason of  the 2006 Order may be noticed as under: Clause Foreigners (Tribunals)  Order 1964 Foreigners (Tribunals  for Assam) Order 2006 2(1) Constitution  of Tribunals

The Central  Government may by  order, refer the  question as to  whether a person is  or is not a foreigner  within the meaning of  the Foreigners Act,  1946 (31 of 1946) to a  Tribunal to be  constituted for the  purpose, for its  opinion. The Central  Government or any  authority specified in  this regard shall, by  order, refer the  question as to whether  a person is or is not a  foreigner within the  meaning of the  Foreigners Act, 1946  (31 of 1946) to a  Tribunal to be  constituted for the  purpose for its  opinion.

3(1)  Procedure  for disposal  of questions The Tribunal shall  serve on the person  to whom the question  relates, a copy of the  main grounds on  which he is alleged to  be a foreigner and  give him a reasonable  opportunity of  making  a  representation and   producing evidence in  support of his case  and after considering  such evidence as may  be produced after  hearing such persons  as may deserve to be  heard, the Tribunal  shall submit its

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opinion to the officer  or authority specified  in this behalf in the  order of reference. The Tribunal upon  receipt of a reference  under sub-paragraph  (1) of paragraph 2,  shall consider whether  there is sufficient  ground for proceeding  and if the Tribunal is  satisfied that basic  facts  are prima facie  established, it shall  serve on the person to  whom the question  relates,  a copy of the  main grounds on  which he is alleged to  be a foreigner and give  him a reasonable  opportunity of making  a representation and  producing evidence in  support of his case  and after considering  such evidence as may  be produced and after  hearing such persons  as may desire to be  heard, the Tribunal  shall submit its  opinion to the officer  or authority specified  in this behalf in the  order of reference.

               The learned Solicitor General appearing on behalf of  the Union of India and Mr. K.K. Venugopal, learned senior  counsel appearing on behalf of the State of Assam submitted  that the provisions of the 2006 Order had been brought into  existence only with a view to give effect to the judgment of this  Court in Sonowal I.   It was contended that given the higher  degree of incursion of illegal migrants into Assam when  compared to other States of the Union and in view of the  special features, such a provision had to be brought in.  It was  urged that whereas under the 1964 Order the Central  Government might or might not refer a matter to the Tribunal,  the same has been made mandatory under the 2006 Order.    According to the learned counsel, the Central Government  earlier had an option to refer a matter, but now it did not  have.   Once, however, a reference is made to the Tribunal  without making any enquiry whatsoever, it would be for the  Tribunal, which has a quasi-judicial function to perform, to  determine the question as to whether a prima facie case has  been made out for issuance of a show-cause notice having  regard to the sufficiency or otherwise of the grounds which  can be found out from the material placed before it.   By  reason thereof, the burden of proof as specified under the  1946 Act is not diluted.   The provisions of Article 21 of the  Constitution of India being applicable to a person who had  already set his feet in India he would be entitled to claim  compliance of the principles of natural justice which may not  be necessary in respect of a person who has yet to enter the

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Indian territory.

16.             Articles 5, 6 and 11 of the Constitution of India read  as under: "5. Citizenship at the commencement of  the Constitution.\027At the commencement of  this Constitution every person who has his  domicile in the territory of India and\027  (a)    who was born in the territory of India; or  (b)   either of whose parents was born in the  territory of India; or  (c)     who has been ordinarily resident in the  territory of India for not less than five years  preceding  such commencement,   shall be a citizen of India. 6. Rights of citizenship of certain persons  who have migrated to India from  Pakistan.\027Notwithstanding anything in  article 5, a person who has migrated to the  territory of India from the territory now  included in Pakistan shall be deemed to be a  citizen of India at the commencement of this  Constitution if\027  (a)     he or either of his parents or any of his  grand-parents was born in India 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 therefore 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 for at least six months immediately  preceding the date of his application. 11. Parliament to regulate the right of  citizenship by law. \027 Nothing in the foregoing  provisions of this Part shall derogate from the  power of Parliament to make any provision  with respect to the acquisition and termination  of citizenship and all other matters relating to  citizenship."   17.             The matter relating to illegal migration to Assam  finds place in clause (3) of  Article 6-A of the Citizenship Act.   It reads as under: "(3) Subject to the provisions of sub-sections  (6) and (7), every person of Indian origin who  \027

(a) came to Assam on or after the 1st  day of January, 1966 but before the 25th

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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 (hereafter 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.\027In 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,\027 (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."

               The Foreigners Tribunal, it is said, has not been set  up in any other part of India except the State of Assam.  A  different regime, therefore, exists in Assam from the rest of the  country.  If no tribunal has been established in the rest of the  country, foreigners are identified by the executive machinery of  the State.  Thus, the province of Assam only has been singled  out for adopting a different procedure.  The problem in regard  to illegal migration faced by Assam is also faced by other  States including the States of West Bengal, Tripura, etc.  It is,  therefore, not in dispute that two different procedures have  been laid down by the Central Government by issuing two  different notifications on the same day.

18.             This Court in Sonowal I pointed to: (i)     the Governor’s report mentioning a large influx of  Bangladeshis; (ii)    the failure of the IMDT Act especially because of the  burden of proof on those who alleged that a resident of  Assam was a foreigner; (iii)   the disinclination of the Government, for political  reasons, to wholeheartedly embark upon identification  and deportation of Bangladeshis from Assam; and

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(iv)    devising an Act which had no teeth and which, instead  of helping the identification, was intended to defeat  identification.

               This Court opined:

(i)     Section 9 of the 1946 Act regarding burden of proof is  basically on the same lines as the corresponding  provision is in UK and some other Western nations  and is based upon sound legal principle that the facts  which are peculiarly within the knowledge of a person  should prove it and not the party who avers the  negative. (ii)    Noting that the IMDT Act does not contain any  provision similar to Section 9 of the 1946 Act as  regards burden of proof and after analysis of the  provisions of the IMDT Act and the Rules made  thereunder, this Court was of the view that the  provisions thereof are very stringent as compared to  the provisions of the 1946 Act or the 1964 Order. (iii)   The IMDT Act and the Rules made thereunder negate  the constitutional mandate contained in Article 355 of  the Constitution of India and must be struck down. (iv)    There being no provision like Section 9 of the 1946 Act  regarding burden of proof in the IMDT Act, the whole  complexion of the case will change in favour of the  illegal migrant.  This right is not available to any other  person similarly situated against whom an order under  the 1946 Act may have been passed, if he is in any  part of India other than the State of Assam.  (v)     The provisions of the 1946 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.   (vi)    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 of  India and is liable to be struck down on this ground  also. (vii)   The procedure under the 1946 Act and the 1964 Order  is just, fair and reasonable and does not offend any  constitutional provision. (viii)  All cases pending before the Tribunals under the IMDT  Act shall stand transferred to the Tribunals  constituted under the 1964 Order and shall be decided  in the manner provided in the 1946 Act, the Rules  made thereunder and the procedure prescribed under  the 1964 Order. (ix)    The Union of India is directed to constitute sufficient  number of Tribunals under the 1964 Order to  effectively deal with cases of foreigners, who have  illegally come from Bangaldesh or are illegally residing  in Assam.

19.             Whereas in terms of the 1964 Order the Central  Government alone could exercise its jurisdiction in the matter  of reference of the question as to whether a person is or is not  a foreigner, in terms of the 2006 Order, any other authority  specified in this behalf will also be entitled to do so.  It may be  true that in terms of the 1964 Order whenever a complaint is  received or if any material is collected by an authority of the  Central Government, an investigation therefor could have been  initiated.  Only upon making such investigation or inquiry, the

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Central Government was required to form a prima facie  opinion for reference of the said question to the Tribunal.  The  Tribunal on receipt of such a reference shall issue notice upon  the proceedee whereafter the burden of proof would lie upon  him.  It may be true that by reason of paragraph 2 of the 2006  Order, the Central Government is now bound to refer the  question as to whether a person is or is not a foreigner.  But, it  may not be correct to contend that only because it is bound to  make such reference, it would act merely as a post office.  The  Central Government or the authorities specified in this behalf  by reason of the provisions of the 2006 Order are not  precluded from making an investigation or inquiry into a  complaint received.  It may receive a complaint that a large  number of persons whose names have been disclosed, are  foreigners.  But, there cannot be any doubt whatsoever that a  preliminary inquiry which may not be as intrusive as was  necessary in terms of the 1964 Order must be held so as to  form an opinion as to whether there is any truth or substance  in the allegations made in the complaint.   

20.             The learned Solicitor General does not state before  us that the Central Government in the changed scenario acts  merely as a post office.  It would, therefore, be necessary that  some sort of application of mind would be necessary on the  part of the authorities of the Central Government.

21.            Even in terms of the 1964 Order, keeping in view  the provisions of the Constitution of India, the Citizenship Act  and the 1946 Act as interpreted by this Court in Sonowal I, it  was the solemn duty of the Central Government to make a  reference.  A discretionary jurisdiction, however, was granted  to the Central Government only for the purpose of arriving at a  subjective satisfaction.   

22.             By reason of the 2006 Order, the requirement to  arrive at such satisfaction on the part of the Central  Government, cannot be said to have been taken away, in view  of the fact that expressions "by order" and "refer the question"  still exist in the statute and, thus, appropriate meaning  thereto should be assigned.   Before a statutory authority  passes an order or makes a reference to a Tribunal  indisputably, therefor  a satisfaction is to be arrived at.   Whenever such a satisfaction is to be arrived at, which must  be reflected in the order of reference,  the same may be subject  to the principles of the judicial review.  Such a decision  for  the purpose of making a reference is to be arrived at on the  basis of the available materials.  To that extent, therefore,  application of mind is necessary.

23.             In The Barium Chemicals Ltd. and Another v. Sh.  A.J. Rana and Others [(1972) 1 SCC 240], it was held: "14. The words "considers it necessary"  postulate that the authority concerned has  thought over the matter deliberately and with  care and it has been found necessary as a  result of such thinking to pass the order. The  dictionary meaning of the word "consider" is  "to view attentively, to survey, examine,  inspect (arch), to look attentively, to  contemplate mentally, to think over, meditate  on, give heed to, take note of, to think  deliberately, bethink oneself, to reflect" (vide  Shorter Oxford Dictionary). According to Words  and Phrases \027 Permanent Edition Vol. 8-A "to  consider" means to think with care. It is also

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mentioned that to "consider" is to fix the mind  upon with a view to careful examination; to  ponder; study; meditate upon, think or reflect  with care. It is therefore, manifest that careful  thinking or due application of the mind  regarding the necessity to obtain and examine  the documents in question is sine qua non for  the making of the order. If the impugned order  were to show that there has been no careful  thinking or proper application of the mind as  to the necessity of obtaining and examining  the documents specified in the order, the  essential requisite to the making of the order  would be held to be non-existent. 15. A necessary corollary of what has been  observed above is that mind has to be applied  with regard to the necessity to obtain and  examine all the documents mentioned in the  order. An application of the mind with regard  to the necessity to obtain and examine only a  few of the many documents mentioned in the  order, while there has been no such  application of mind in respect of the remaining  documents, would not be sufficient compliance  with the requirements of the statute. If,  however, there has been consideration of the  matter regarding the necessity to obtain and  examine all the documents and an order is  passed thereafter, the Court would stay its  hand in the matter and would not substitute  its own opinion for that of the authority  concerned regarding the necessity to obtain  the documents in question."

               The said principle has been reiterated in Kaiser-I- Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North)  Ltd., [(2002) 8 SCC 182] in the following terms: "14. In view of the aforesaid requirements,  before obtaining the assent of the President,  the State Government has to point out that the  law made by the State Legislature is in respect  of one of the matters enumerated in the  Concurrent List by mentioning entry/entries of  the Concurrent List and that it contains  provision or provisions repugnant to the law  made by Parliament or existing law. Further,  the words "reserved for consideration" would  definitely indicate that there should be active  application of mind by the President to the  repugnancy pointed out between the proposed  State law and the earlier law made by  Parliament and the necessity of having such a  law, in the facts and circumstances of the  matter, which is repugnant to a law enacted by  Parliament prevailing in a State. The word  "consideration" would manifest that after  careful thinking over and due application of  mind regarding the necessity of having State  law which is repugnant to the law made by  Parliament, the President may grant assent\005"

               Yet again in State (Anti-Corruption Branch), Govt. of  NCT of Delhi and Another v. Dr. R.C. Anand and Another

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[(2004) 4 SCC 615], as regards necessity for application of  mind for grant of sanction, this Court opined:

"The validity of the sanction would, therefore,  depend upon the material placed before the  sanctioning authority and the fact that all the  relevant facts, material and evidence including  the transcript of the tape record have been  considered by the sanctioning authority.  Consideration implies application of mind. The  order of sanction must ex facie disclose that  the sanctioning authority had considered the  evidence and other material placed before it.  This fact can also be established by extrinsic  evidence by placing the relevant files before the  Court to show that all relevant facts were  considered by the sanctioning authority. (See  Jaswant Singh v. State of Punjab and State of  Bihar v. P.P. Sharma)"

               Submission of the learned counsel to the effect that  the Central Government could reject a large number of  applications which would render the entire process ineffective  cannot be accepted.  The bounden duties of the Central  Government are replete in the Constitution of India and the  statutory provisions, reference whereto has been made in  detail by this Court in Sonowal I.

24.             It may be true that while interpreting the provisions  of the Act, the changes made in the expression will have to be  taken into consideration;  but, while doing so, the burden of  the Central Government cannot, in our opinion, be thrown on  the Tribunal.   

25.             In Sonowal I, this Court has noticed the lack of will  on the part of the Central Government to proceed against the  foreigners.   

26.             The Central Government may not for the said  purpose retain a discretion in its own hands but by reason  thereof it cannot also refuse to perform its duties to make  investigation in the matter for the purpose of rendition of  proper assistance to the Tribunal for determining the question.   After all the duty to protect the State and the nation from  aggression rests with the Central Government.

27.            Even assuming that it is imperative on the part of  the Central Government to refer the question without making  an investigation, the Order does not debar the said authority  to place its view point while referring a matter to the Tribunal.   

28.             There is an inherent danger if it is to be concluded  that the Central Government would act as a post office.  For  the said purpose, we may consider the question from a  different angle.

29.            If a complaint is made and the Central Government  merely forwards it, there will be no material before the  Tribunal on the basis of which it would be able to determine  whether sufficient ground for proceeding with the matter  exists or not.  If on the basis of such a complaint, the Tribunal  comes to a conclusion that there is no sufficient ground, it will  have no other option having regard to the phraseology used in  paragraph 3 of the 2006 Order to dismiss the same.  But, if

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the Tribunal is formulating the ground so as to enable it to  communicate the same to the alleged foreigner, the Tribunal  would be able to proceed methodologically.   

30.            It is not in dispute that whereas in terms of the  1964 Order the entire burden was on the alleged foreigner; by  reason of the 2006 Order, the proceeding before the Tribunal  would be in two parts.  Firstly, the Tribunal will have no other  option but to apply its mind to the materials on record to  enable itself to arrive at a conclusion as to whether there  exists any sufficient ground for proceeding in the matter. For  the said purpose, not only a satisfaction is required to be  arrived at by the Tribunal but the basic facts in respect thereof  are required to be prima facie established.  The statute is  silent as to on what basis such basic facts are required to be   established.  No criterion has been laid down therefor.  At that  juncture, the Tribunal may not have any assistance of any  other authority.  Ex facie, the Tribunal would have to take the  entire burden upon itself.   

31.             It is one thing to say that a statutory Tribunal  before issuing a notice must satisfy itself as regards the  existence of a prima facie case but it is another thing to say  that before it issues a notice the basic facts have to be prima  facie established. The expression "establish" has a definite  connotation.

               In P. Ramanatha Aiyar’s Advanced Law Lexicon, 3rd  edition, it has been observed:

"For the purpose of Art. 30(1) the word  ’establish’ means "to bring into existence."

               Such establishment of basic facts ex facie would be  contrary to the provisions of Section 9 of the 1946 Act.

32.            The procedure laid down in paragraph 3 of the 1964  Order ensures that the burden of proving that he was a citizen  was on the alleged illegal immigrant.  Section 9 of the 1946 Act  is based on a sound principle of law.  It is also recognized by  the Indian Evidence Act in the form of Section 106 thereof.   The evidence required for deciding as to whether a person is or  is not a foreigner are necessarily within the personal  knowledge of the person concerned.

33.             We may notice that this Court categorically opined  that the procedure under the 1946 Act and the Rules were just  and fair and did not offend any constitutional provision, while  issuing a direction that the Tribunals under the IMDT Act  would not function and the matter should be adjudicated  upon in terms of the provisions of the 1946 Act and the Rules  thereunder.  By reason of the impugned Order the Central  Government has created tribunals only for Assam and for no  other part of the country.

34.            It may be true that different procedure has to be  applied in regard to a person who is still in the foreign soil and  those who are in the Indian territory as has been held in  [Shaughnessy, District Director of Immigration and  Naturalization v. United States ex rel. Mezei, 345 US 206 and  Supreme Court of the United States Kestutis Zadvydas v.  Christine G. Davis and Immigration and Naturalization  Service, 533 US 678], whereupon Mr. Venugopal  placed  strong reliance, but the said question does not arise in the  instant case.

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35.             Principle of Natural Justice, indisputably is required  to be complied with before a Tribunal passes an order of  deportation.  The 1946 Act and the Orders framed thereunder  contain inbuilt procedure.  The procedures laid down therein  are fair and reasonable.  Only because, the burden of proof is  on the proceedee, the same by itself would not mean that the  procedure is ultra vires;  the provisions of Article 21 of the  Constitution of India.  Article 21 would not be offended if the  procedure is fair and reasonable.   

36.             In Sonowal I, a singular contention based on  applicability of Article 21 of the Constitution of India has been  negatived by this Court stating:

"73. It is not possible to accept the submission  made. The view taken by this Court is that in a  criminal trial where a person is prosecuted  and punished for commission of a crime and  may thus be deprived of his life or liberty, it is  not enough that he is prosecuted in  accordance with the procedure prescribed by  law but the procedure should be such which is  just, fair and reasonable. This principle can  have no application here for the obvious  reason that in the matter of identification of a  foreigner and his deportation, he is not being  deprived of his life or personal liberty. The  deportation proceedings are not proceedings  for prosecution where a man may be convicted  or sentenced. The Foreigners Act and the  Foreigners (Tribunals) Order, 1964 are  applicable to whole of India and even to the  State of Assam for identification of foreigners  who have entered Assam between 1-1-1966  and 24-3-1971 in view of the language used in  Section 6-A of the Citizenship Act. It is,  therefore, not open to the Union of India or the  State of Assam or for that matter anyone to  contend that the procedure prescribed in the  aforesaid enactment is not just, fair and  reasonable and thus violative of Article 21 of  the Constitution. In our opinion, the procedure  under the Foreigners Act and the Foreigners  (Tribunals) Order, 1964 is just, fair and  reasonable and does not offend any  constitutional provision."

37.             Another aspect of the matter cannot also be lost  sight of.  The 2006 Order is a subordinate legislation.  It  cannot, thus, violate a substantive law made by the  Parliament.   

               In Kerala Samsthana Chethu Thozhilali Union v.  State of Kerala & Ors.  [(2006) 3 SCALE  534], this Court  observed :  

       "A rule is not only required to be made in  conformity with the provisions of the Act  whereunder it is made, but the same must be  in conformity with the provisions of any other  Act, as a subordinate legislation cannot be  violative of any plenary legislation made by the  Parliament or the State Legislature."

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               It was further stated :

"The Rules in terms of sub-section (1) of  Section 29 of the Act, thus, could be framed  only for the purpose of carrying out the  provisions of the Act.  Both the power to frame  rules and the power to impose terms and  conditions are, therefore, subject to the  provisions of the Act.  They must conform to  the legislative policy.  They must not be  contrary to the other provisions of the Act.   They must not be framed in contravention of  the constitutional or statutory scheme.   

       In Ashok Lanka and Another v. Rishi  Dixit and Others [(2005) 5 SCC 598], it was  held:

"\005 We are not oblivious of the fact that  framing of rules is not an executive act  but a legislative act; but there cannot be  any doubt whatsoever that such  subordinate legislation must be framed  strictly in consonance with the legislative  intent as reflected in the rule-making  power contained in Section 62 of the Act."

       In Bombay Dyeing & Mfg. Co. Ltd. v.  Bombay Environmental Action Group & Ors.  [2006 (3) SCALE 1], this Court has stated the  law in the following terms:

"A policy decision, as is well known,  should not be lightly interfered with but it  is difficult to accept the submissions   made on behalf of the learned counsel  appearing on behalf of the Appellants  that the courts cannot exercise their  power of judicial review at all.  By reason  of any legislation whether enacted by the  legislature or by way of subordinate  legislation, the State gives effect to its  legislative policy.  Such legislation,  however, must not be ultra vires the  Constitution.  A subordinate legislation  apart from being intra vires the  Constitution, should not also be ultra  vires the parent Act under which it has  been made.  A subordinate legislation, it  is trite, must be reasonable and in  consonance with the legislative policy as  also give effect to the purport and object  of the Act and in good faith."

In Craies on Statute Law, 7th edition, it is  stated at page 297: "The initial difference between  subordinate legislation (of the kind dealt  with in this chapter) and statute law lies  in the fact that a subordinate law-making  body is bound by the terms of its  delegated or derived authority, and that  courts of law, as a general rule, will not  give effect to the rules, etc., thus made,

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unless satisfied that all the conditions  precedent to the validity of the rules have  been fulfilled.  The validity of statutes  cannot be canvassed by the courts, the  validity of delegated legislation as a  general rule can be.  The courts therefore  (1) will require due proof that the rules  have been made and promulgated in  accordance with the statutory authority,  unless the statute directs them to be  judicially noticed; (2) in the absence of  express statutory provision to the  contrary, may inquire whether the rule- making power has been exercised in  accordance with the provisions of the  statute by which it is created, either with  respect to the procedure adopted, the  form or substance of the regulation, or  the sanction, if any, attached to the  regulation : and it follows that the court  may reject as invalid and ultra vires a  regulation which fails to comply with the  statutory essentials."

       [See also Vasu Dev Singh & Ors. v. Union of India & Ors.,  2006 (11) SCALE 108]

38.             In Sonowal I, referring to R. v. Oliver, (1943) 2 All  ER 800 and Williams v. Russel, (1993) 149 LT 190, it was  noticed

"30. In R. v. Oliver the accused was charged  with having sold sugar as a wholesale seller  without the necessary licence. It was held that  whether the accused had a licence was a fact  peculiarly within his own knowledge and proof  of the fact that he had a licence lay upon him.  It was further held that in the circumstances  of the case the prosecution was under no  necessity to give prima facie evidence of non- existence of a licence. In this case reference is  made to some earlier decisions and it will be  useful to notice the same. In R. v. Turner the  learned Judge observed as follows: (All ER  p. 715 D) "I have always understood it to be a  general rule that if a negative averment be  made by one party, which is peculiarly  within the knowledge of the other, the party  within whose knowledge it lies, and who  asserts the affirmative is to prove it and not  he who avers the negative."

31. In Williams v. Russel the learned Judge  held as under: "On the principle laid down in R. v.  Turner and numerous other cases where it  is an offence to do an act without lawful  authority, the person who sets up the lawful  authority must prove it and the prosecution  need not prove the absence of lawful  authority. I think the onus of the negative  averment in this case was on the accused to  prove the possession of the policy required  by the statute."

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               There cannot, however, be any doubt whatsoever  that adequate care should be taken to see that no genuine  citizen of India is thrown out of the country.  A person who  claims himself to be a citizen of India in terms of the  Constitution of India or the Citizenship Act is entitled to all  safeguards both  substantive and procedural provided for  therein to show that he is a citizen.

39.             Status of a person, however, is determined  according to statute.  The Evidence Act of our country has  made provisions as regards ’burden of proof’.  Different  statutes also lay down as to how and in what manner burden  is to be discharged.  Even some penal statutes contain  provisions that burden of proof shall be on the accused.  Only  because burden of proof under certain situations is placed on  the accused, the same would not mean that he is deprived of  the procedural safeguard.   

       In Hiten Pal Dalal v. Bratindranath Banerjee [(2001)  6 SCC 16], this Court categorically opined :

"\005Presumptions are rules of evidence and do  not conflict with the presumption of innocence,  because by the latter, all that is meant is that  the prosecution is obliged to prove the case  against the accused beyond reasonable doubt.  The obligation on the prosecution may be  discharged with the help of presumptions of  law or fact unless the accused adduces  evidence showing the reasonable possibility of  the non-existence of the presumed fact. 23. In other words, provided the facts required  to form the basis of a presumption of law exist,  no discretion is left with the court but to draw  the statutory conclusion, but this does not  preclude the person against whom the  presumption is drawn from rebutting it and  proving the contrary. A fact is said to be  proved when,  "after considering the matters before it,  the court either believes it to exist, or  considers its existence so probable that a  prudent man ought, under the  circumstances of the particular case, to  act upon the supposition that it exists"   Therefore, the rebuttal does not have to be  conclusively established but such evidence  must be adduced before the court in support  of the defence that the court must either  believe the defence to exist or consider its  existence to be reasonably probable, the  standard of reasonability being that of the  "prudent man"".

       Moreover, there exists a difference between a  burden of proof and onus of proof.         In  Anil Rishi v. Gurbaksh Singh [2006 (5) SCALE  153], this Court observed :   "There is another aspect of the matter  which should be borne in mind.  A distinction  exists between a burden of proof and onus of  proof.  The right to begin follows onus  probandi.   It assumes importance  in the early

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stage of a case.  The question of onus of proof  has greater force, where the question is which  party is to begin.  Burden of proof is used in  three ways : (i) to indicate the duty of bringing  forward evidence in support of a proposition at  the beginning or later; (ii) to make that of  establishing a proposition as against all  counter evidence; and (iii) an indiscriminate  use in which it may mean either or both of the  others.  The elementary rule is Section 101 is  inflexible.  In  terms of Section 102 the initial  onus is always on the plaintiff and if he  discharges that onus and makes out a case  which entitles him to a relief, the onus shifts to  the defendant to prove those circumstances, if  any, which would disentitle the plaintiff to the  same."

40.             Having regard to the fact that the Tribunal in the  notice to be sent to the proceedee is required to set out the  main grounds; evidently the primary onus in relation thereto  would be on the State.  However, once the Tribunal satisfied  itself about the existence of grounds, the burden of proof  would be upon the proceedee.  

41.             In Sonowal I, this Court clearly held that the burden  of proof would be upon the proceedee as he would be  possessing the necessary documents to show that he is a  citizen not only within the meaning of the provisions of the  Constitution of India but also within the provisions of the  Citizenship Act.

               It was stated:

"26. There is good and sound reason for  placing the burden of proof upon the person  concerned who asserts to be a citizen of a  particular country. In order to establish one’s  citizenship, normally he may be required to  give evidence of (i) his date of birth (ii) place of  birth (iii) name of his parents (iv) their place of  birth and citizenship.  Sometimes the place  of birth of his grandparents may also be  relevant like under Section 6-A(1)(d) of the  Citizenship Act. All these facts would  necessarily be within the personal knowledge  of the person concerned and not of the  authorities of the State. After he has given  evidence on these points, the State authorities  can verify the facts and can then lead evidence  in rebuttal, if necessary. If the State  authorities dispute the claim of citizenship by  a person and assert that he is a foreigner, it  will not only be difficult but almost impossible  for them to first lead evidence on the aforesaid  points. This is in accordance with the  underlying policy of Section 106 of the  Evidence Act which says that when any fact is  especially within the knowledge of any person,  the burden of proving that fact is upon him."

               The Court noticed that even in criminal cases,

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under certain statutes, the burden of proof would be on the  accused.

42.             For the aforementioned reasons also, in our  opinion, the impugned subordinate legislation cannot be  sustained as it does not the test of the reasoning in Sonowal I.

43.             In the face of the clear directions issued in Sonowal  I, it was for the Authority concerned to strength the Tribunals  under the 1964 Order and to make them work.  Instead of  doing so, the 2006 Order has been promulgated.  It is not as if  the respondents have found the 1964 Order unworkable in the  State of Assam; they have simply refused to enforce that Order  in spite of directions in that behalf by this Court.  It is not for  us to speculate on the reasons for this attitude.  The earlier  decision in Sonowal, has referred to the relevant materials  showing that such uncontrolled immigration into the North- Eastern States posed a threat to the integrity of the nation.   What was therefore called for was a strict implementation of  the directions of this Court earlier issued in Sonowal I, so as to  ensure that illegal immigrants are sent out of the country,  while in spite of lapse of time, the Tribunals under the 1964  Order had not been strengthened as directed in Sonowal I.   Why it was not so done, has not been made clear by the  Central Government.  We have to once again lament with  Sonowal I that there is a lack of will in the matter of ensuring  that illegal immigrants are sent out of the country.   44.             It appears that the 2006 Order has been issued just  as a cover up for non implementation of the directions of this  Court issued in Sonowal I.  The Order of 2006, in our view, is  clearly unnecessary in the light of the 1946 Act and the Orders  made thereunder and the directions issued in Sonowal I.  It  does not serve the purpose sought to be achieved by the 1946  Act or the Citizenship Act and the obligations cast on the  Central Government to protect the nation in terms of Article  355 of the Constitution of India highlighted in Sonowal.  We  have also earlier struck down the repeal of the 1964 Order as  regards Assam.  The 2006 Order is therefore found to be  unreasonable and issued in an arbitrary exercise of power.  It  requires to be quashed or declared invalid.

45.             We therefore allow these Writ Petitions and quash  the 2006 order and the Foreigners (Tribunal) Amendment  Order 2006 and direct the respondents to forthwith implement  the directions issued by this Court in Sonowal I.  No time limit  for implementation was fixed in Sonowal I with the hope that  the Central Government would implement the directions  within a reasonable time.  But now that it has not been done  and we do not find adequate reasons for justifying the non- implementation of the directions issued in Sonowal I, we direct  that the directions issued to the Union of India to constitute  sufficient number of Tribunals under the 1964 Order to  effectively deal with the cases of foreigners who have illegally  come from Bangladesh or are residing in Assam, be  implemented with a period of four months from this date.   

46.             The Writ Petitions are thus allowed with costs.   Counsel’s fees assessed at Rs. 25,000/-.