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2009 DIGILAW 692 (GAU)

Anand Kundu v. Union of India

2009-09-23

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The petitioner, who has been declared to be a foreigner, who came to Assam from Bangladesh after 25.3.1971, has filed this writ petition challenging the said declaration made by the Foreigners' Tribunal, Diphu in FT case No. 60/2006, corresponding to IMDT case No. 88/2005, 2. The impugned order of the Tribunal is ex parte as the petitioner after filling the written statement and two numbers of documents defaulted in appearance before the Tribunal. According to the petitioner, he is an Indian citizen, by birth, and his father is late Upendra Kundu. As regards the ex parte impugned judgment and order passed by the Tribunal, the stand of the petitioner is that the Tribunal committed error in law in not considering the case of the petitioner in proper perspective. The ground assigned for non-appearance of the petitioner is in paragraph 16 of the writ petition. The ground is that the petitioner had engaged an advocate to defend his case before the Tribunal by entrusting him with all the requisite documents to prove his Indian citizenship. According to the petitioner, the said advocate did nothing to protect his interest. The petitioner is completely silent regarding the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. 3. The impugned judgment and order is dated 8.5.2007 and the writ petition was filed on 18.9.2008, assailing the said judgment and order. 4. The respondent No. 4 i.e. the Superintendent of Police(B), Karbi-Anglong District, by filling an affidavit dated 5.12.2008 brought to the notice of this Court that the petitioner was already deported to Bangladesh on 10.8.2008 vide Mahisasan Passport Check Post (PCP) exit confirmation No. 72/2008 dated 10.8.2008, maintaining all the formalities based on the judgment and order of the Foreigners' Tribunal dated 8.5.2007. In the said affidavit, documents relating to deportation of the petitioner, such as, Deportation Order, Finger Prints Search List, Quit India Notice, etc. have also been annexed. The Border Security Force (BSF), which was also directed to confirm the position has filed an affidavit dated 21.6.2009, confirming the above position. As per the said affidavit, the petitioner was brought at BOP Mahisasan vide Exit No. 64 to 72 of 2008 dated 10.8.2008 with a request to send the persons including the petitioner to Bangladesh. The Border Security Force (BSF), which was also directed to confirm the position has filed an affidavit dated 21.6.2009, confirming the above position. As per the said affidavit, the petitioner was brought at BOP Mahisasan vide Exit No. 64 to 72 of 2008 dated 10.8.2008 with a request to send the persons including the petitioner to Bangladesh. The BSF sent back the petitioner alongwith others to Bangladesh in presence of the State Police representative from Border Police No. 1367. Requisite information was also sent to the Bn. HQ. and in turn, the Bn. Hq. submitted information to Sector Hq., BSF, Silchar. The BSF has also produced the Push Back Register of BOP, Mahisasan to indicate that the petitioner on being declared to be a foreigner was pushed back to Bangladesh. 5. From the above, the stand of the respondents is that the petitioner was deported to Bangladesh on 10.8.2008 but immediately thereafter, the petitioner could approach this Court by filling the writ petition on 18.9.2008. This aspect of the matter has been recorded in the order dated 4.6.2009. It was observed as follows: From the aforesaid factual aspect of the matter, there is no manner of doubt that the matter is very serious inasmuch as, if we go by the affidavit filed by the Superintendent of Police, a Bangladeshi national after his deportation to Bangladesh could come back to Assam, even to the extent of invoking writ jurisdiction. Having regard to such seriousness of the matter, the State Government as well as the Central Government were directed upto number of times to deal with the issue seriously but unfortunately, the affidavits filed by both the Governments, do not deal with the issue. Both the affidavits do not even whisper about the factual aspect of the matter raised in the writ petition, not to speak of the legal issue involved. 6. In the affidavit filed by the Union Government, the stand taken is that the Bangladeshi nationals who came to India illegally on or after 25.3.1971 are treated as illegal migrants and their deportation is carried out as per the provisions of the Foreigners' Act, 1946 and the orders made thereunder. It is the stand of the Union Government that unless the Bangladeshi nationals disclose full particulars, such as, name, father's/husband's name, residential address in Bangladesh, date of detection etc. It is the stand of the Union Government that unless the Bangladeshi nationals disclose full particulars, such as, name, father's/husband's name, residential address in Bangladesh, date of detection etc. alongwith the details of conviction/deportation orders and the name of the Court issuing the orders, etc. alongwith information about the destination, where the deportees are to be sent, it is difficult to deport illegal Bangladeshi nationals. Needless to say that no Bangladeshi nationals will volunteer to give the particulars. 7. Considering the evasive stand of the State Government in its affidavit, it was observed as follows: In so far as the affidavit filed by the State Government is concerned, same is the mere repetition of what was contended on the previous date of hearing of this matter i.e. on 2.6.2009. In the affidavit, the only statement made is that the State Government has entrusted the DIG of Police, Central Range, Diphu to enquire into the matter. The same was the plea on 2.6.2009 when time was prayed for. From the conduct of the respondents, it appears that the two affidavits have been dumped to this Court just to show that affidavits have been filed in compliance of the order of this Court passed on 2.6.2009. In view of the above, there is no manner of doubt that both the Governments have taken the matter very lightly inspite of the fact that this is a serious matter concerning the very security and integrity of the State about which the Apex Court in Sarbananda Sonowal-1 & II reported in AIR 2005 SC 2920 and (2007) 1 SCC 174 has stated. Strongly situated thus, there is no option left than to issue direction to the Secretary to the Govt. of India, Ministry of Home Affairs which Mr. H. Rahman, learned ASGI has identified as Mr. Mad-hukar Gupta as welt as the Secretary to the Govt. of Assam in the Home Department, namely, Shri Rajib Borah, to answer the writ petition by appearing personally. 8. After the aforesaid order dated 4.6.2009, the matter was fixed on 18.6.2009 on which date Mr. Rajib Borah, Commissioner and Secretary to the Govt. of Assam in the Home Department, appeared personally in the Court and he was heard. of Assam in the Home Department, namely, Shri Rajib Borah, to answer the writ petition by appearing personally. 8. After the aforesaid order dated 4.6.2009, the matter was fixed on 18.6.2009 on which date Mr. Rajib Borah, Commissioner and Secretary to the Govt. of Assam in the Home Department, appeared personally in the Court and he was heard. As per the affidavits filed by the State Government and the Union Government, it was their stand that the petitioner was deported to Bangladesh after he was declared to be an illegal migrant from Bangladesh by the Foreigners' Tribunal. It was after the order passed on 18.6.2009, the BSF has filed the aforementioned affidavit. 9. As regards the ex parte judgment and order passed by the Tribunal, the petitioner is to blame himself and none else. As noted above, Section 9 of the Foreigners Act, 1946, casts the burden on the person concerned to prove his Indian citizenship. In the instant case, the petitioner after his initial appearance by filling a written statement and two documents, did not appear before the Tribunal any more and in paragraph 16 of the writ petitioner, the blame is on the engaged Counsel, whom the petitioner has not named. Only statement made is that he had handed over all the requisite documents to the engaged Counsel but the said engaged Counsel did nothing to protect the interest of the petitioner. When Section 9 of the Foreigners' Act, 1946 requires the discharge of burden of proof by the person concerned himself, there was no point in handing over the documents to the engaged Counsel and then to remain absent from the proceedings of the Tribunal. 10. I have heard Mr. A. Sarma, learned Counsel for the petitioner as well as Mr. K.N. Choudhury, learned Addl. Advocate General assisted by Ms. R. Chakraborty, learned Additional Senior Govt. Advocate, Assam. I have also heard Mr. H. Rahman, learned ASGI. They extensively argued in reference to the materials on record. I have also gone through the records of the Tribunal. 11. The case against the petitioner was registered on the basis of the police report furnished. It appears that firstly IMDT case No. 88/2005 was registered and thereafter with the scrapping of the MDT Act, the case was re-registered as FT case No. 60/2006. I have also gone through the records of the Tribunal. 11. The case against the petitioner was registered on the basis of the police report furnished. It appears that firstly IMDT case No. 88/2005 was registered and thereafter with the scrapping of the MDT Act, the case was re-registered as FT case No. 60/2006. On receipt of the notice, the petitioner duly appeared before the Tribunal on 8.11.2006 by filling written statement and two documents, both photocopies, which are Certificate of Registration dated 7.11.1959 and an affidavit sworn by the petitioner. As per the written statement, initially, the petitioner and his family members used to reside at a place called Chakirtop, PS-Nagaon and thereafter shifted to a place called Dakhinvidyanagar, PS- Hojai in the District of Nagaon. 12. After filling the aforesaid written statement on 8.11.2006, the petitioner abandoned the proceeding before the Tribunal as is revealed from the order sheet of the case records of the Tribunal. He remained absent on 26.3.2007, 27.3.2007, 19.4.2007, 2.5.2007 and finally on 8.5.2007 when the ex parte impugned judgment and order was passed by the Tribunal. 13. Although the petitioner had submitted written statement and the aforesaid two documents but he never came forward to discharge the burden of proof as contemplated under Section 9 of the Foreigners' Act, 1946, which is reproduced below: Burden of proof.-If in any case not falling under Section 8 any request 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), lying upon such person. 14. Regarding the burden of proof, the Apex Court in Sarbananda Sonowal-I v. Union of India reported in AIR 2005 SC 2920 observed as follows: Section 9 of the Foreigners Act regarding burden of proof is basically on the same lines as the corresponding provision is in U.K. 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. 15. 15. Admittedly, the petitioner failed to discharge the said burden of proof and he wants to get himself absolved from the said burden blaming the engaged advocate with the statement that the said advocate did nothing to protect his interest. 16. From what has been discussed above, there is no manner of doubt that the petitioner was deported/pushed back pursuant to the impugned judgment and order passed by the Tribunal. Same was on 10.8.2008. The case of the petitioner is simple denial. In the affidavit filed by his wife, the plea taken is that the petitioner was never deported to Bangladesh. However, such statement cannot override the documentary evidence adduced by the respondents including the BSF. It is in this context, Mr. K.N. Choudhury, learned Addl. Advocate General submitted that since the petitioner was deported to Bangladesh in implementation of the impugned judgment and order, the writ petition filed by him thereafter again illegally migrating to Assam, is not maintainable. It was submitted that once the impugned judgment and order has been implemented, the petitioner could not have come back to Assam once again illegally without any valid document and then to invoke the writ jurisdiction of this Court. 17. The whole basis of the claim of the petitioner is the Certificate of Registration bearing No. 286476 dated 7.11.1959. Under the said No. "286476", there is another hand-written No. , which is "786". At the right hand corner of the top of the certificate, there is another hand written entry which is "SI. No. 193". Even the date 7.11.1959 is hand-written. Although in the certificate, there is a seal of Election Officer, Nagaon (Assam) but the signature and the entries therein, in such an important matter, do not inspire the confidence of this Court. Further the said document is in the name of Shri Upendra Kundu and not in the name of the petitioner. 18. As per the declaration made by the petitioner in the writ petition, his age as on 18.9.2008 was 43 years. If that be so, he could have produced number of the voter lists containing his name but he has produced only the typed copy of the voter list of 1993 purportedly containing his name. The petitioner has also produced the photocopy of the declaration form for inclusion of name in the draft voter list. If that be so, he could have produced number of the voter lists containing his name but he has produced only the typed copy of the voter list of 1993 purportedly containing his name. The petitioner has also produced the photocopy of the declaration form for inclusion of name in the draft voter list. Although no date is discernible from the document but from the particular column relating to permissible age of 18 years as on 1.4.1989, the said document must be of 1989-1990. The said document is not a voter list. If the father of the petitioner was already registered as an Indian citizen, it is not understood as to why the further declaration was to be made for inclusion of the names of his family members including that of the petitioner. 19. As per the written statement filed by the petitioner before the Tribunal, his family members initially stayed at Chakir-top under PS Nagaon and thereafter shifted to Dakhinvidyanagar under PS-Hojai in the District of Nagaon. If that be so, there should have been indication of the said village in the declaration form but that is not to be found. Even in the typed copy of the voter list of 1993, the name of the village is indicated as Hojai Nagar J. Ward No. 1 and not Dakhin Vidyanagar. 20. Apart from the above, another aspect of the matter is that even if the certificate of registration is accepted to be a genuine document, same being only in the name of the father of the petitioner, without indicating his family members, cannot help the case of the petitioner. With the large scale illegal migration from Bangladesh and with a porous border, it is always possible to maintain families by a foreign national, both in Bangladesh and in Assam. If the present age of the petitioner is 43 years then he was on 1966, and thus, he could have produced many of the voter list containing his name alongwith his family members including his purported father Upendra Kundu, but he could not. 21. The certificate of registration was directed to be verified by the competent authority of the State. The certificate has been verified by the Deputy Commissioner, Nagaon, which has been annexed to the affidavit filed on 1.9.2009 to which the petitioner has also filed a reply affidavit on 4.9.2009. 21. The certificate of registration was directed to be verified by the competent authority of the State. The certificate has been verified by the Deputy Commissioner, Nagaon, which has been annexed to the affidavit filed on 1.9.2009 to which the petitioner has also filed a reply affidavit on 4.9.2009. As per the report furnished by the Deputy Commissioner, there is nothing to indicate that the Election Officer, Nagaon, was competent to issue such certificate. The report has further revealed that the counterfoils of such Certificate of Registration is available in the office of the Deputy Commissioner. Addl. Deputy Commissioner and the Sub-Deputy Collector of the Revenue Circles pertaining to the period in question reflect that such certificates had been issued by the DC, ADC and SDC of Revenue Circles and not by the Election Officer. 22. Referring to the age recorded in the Certificate of Registration of the person i.e. Upendra Kundu, which is 55 years, it has been, contended in the report that if the document is authentic, the name of the petitioner and his family members would have appeared in the relevant electoral rolls prepared thereafter. But verification of the Electoral Rolls for the period from 1966 and 1971 have revealed that the name of Upendra Kundu or his family members were not included in any of the Electoral Rolls. Even in the relevant part of NRC of 1951, the name of Upendra Kundu is not available. Further revelation made in the report is that if the certificate of registration is taken into account, the name of the petitioner alongwith his father would have appeared in the voter lists of the relevant periods but the same is not the case. 23. In the reply affidavit filed by the petitioner against the affidavit filed enclosing the report of the Deputy Commissioner, the petitioner has contended that the report is not based on records. According to the petitioner, the Certificate of Registration is a genuine document and based on that, the petitioner cannot be declared to be a foreigner being born and brought up in India. All these aspects of the matter have been discussed above. If the petitioner is an Indian citizen, by birth, he could have produced convincing documents towards discharging the burden of proof as envisaged under Section 9 of the Foreigners Act. 24. All these aspects of the matter have been discussed above. If the petitioner is an Indian citizen, by birth, he could have produced convincing documents towards discharging the burden of proof as envisaged under Section 9 of the Foreigners Act. 24. The aforesaid factual as well as legal, the aspects of the matter have left this Court with no other option than to dismiss the writ petition upholding the impugned judgment and order passed by the Foreigners Tribunal. 25. During the proceeding of this Court, the respondent Officers of the State and Union Government had appeared before the Court in person. They have also filed their counter-affidavits. Although their stand is that the petitioner was deported and/or pushed back to Bangladesh on 10.8.2008 but they are silent as to how the petitioner could once again sneak to Assam befooling the BSF and other police personnel. During the course of hearing, the respondents were directed to file affidavits to explain the circumstances leading to re-appearance of the petitioner in Assam after his deportation to Bangladesh. In their affidavits, the only stand taken is that the petitioner entered into India surreptitiously. 26. In the affidavit filed by the Joint Secretary in the Union Ministry of Home Affairs, the following statement has been made: 4. That the deponent states that Bangladeshi Nationals who came to India illegally on or after the 25th March, 1971 are treated as illegal migrants. The deportation of Bangladeshi nationals, at present, carried out in accordance with the procedure laid down by the Central Government under the provisions of the Foreigners Act, 1946 and Rules and Orders made thereunder and further states that, the entry, stay and exit of foreign nationals in the country are regulated under the statutes viz. (a) Passport (Entry into India) Act, 1920; (b) Foreigners Act, 1946; and (c) Registration of Foreigners Act, 1939. 5. That the deponent states that Section 3(2)(c) of the Foreigners Act, 1946 empowers the Central Government to deport foreigners from the country should they come to adverse notice or should their presence in the country be considered against national interests or should they stay unauthorised. The State Government/Union Territory Administrations have full powers to identify, detect and deport any foreigner out of the country under the entrusted powers vide Notification No. SO. The State Government/Union Territory Administrations have full powers to identify, detect and deport any foreigner out of the country under the entrusted powers vide Notification No. SO. 590 dated 19th April, 1958 issued by the Ministry of Home Affairs in this regard, which covers the entrusting of the powers of the Central Government under Sections 3(2)(c) and 3(2)(e) of the Foreigner's Act, 1946 to the Government of Assam. 6. That the deponent states that; as regards the actual deportation of illegal Bangladeshi nationals, full particulars of deportees including name of father/husband, residential addresses in Bangladesh, date of detection, etc. alongwith details of conviction/deportation orders and name of the Court issuing order etc. whichever applicable, alongwith information about the destination where the deportees are to be sent to are to be given to the Border Security Force authorities in advance to facilitate smooth and effective deportation of illegal Bangladesh nationals. 7. That the deponent states that in such cases where after the findings of the Hon'ble Court, Bangladeshi nationals who have not disclosed their address and other particulars in Bangladesh, detention of such illegal migrants/Bangladeshi nationals becomes necessary in accordance with law. The State Government of Assam is in the process of setting up of detention centres. 8. That the deponent further states that in order to check illegal immigration and infiltration from Bangladesh, the Government of India has adopted multi-pronged approach including the following: (i) Construction of border fencing, roads and flood fighting. (ii) Round the clock surveillance of the border by the Border Security Force. (iii) Setting up of 1185 Border Posts (BOPs) along Indo-Bangladesh Border to reduce the inter BOP distance for effective border domination, of which 802 BOPs have already have been established. Setting up of remaining 383 BOPs have been sanctioned. (iv) Induction of hi-tech surveillance equipment including night vision devices. 27. As regards the re-appearance of the petitioner after his deportation, an enquiry was conducted by the DIGP, Central Range, Assam, Diphu. He has furnished the report dated 5.6.2009 to the Commissioner and Secretary, Home Department, Assam. As per the report, the petitioner was deported to Bangladesh on 10.8.2008. At the time of deportation, the photographs and finger prints of the petitioner were obtained. Necessary documents and exit confirmation number have been recorded and preserved. He has furnished the report dated 5.6.2009 to the Commissioner and Secretary, Home Department, Assam. As per the report, the petitioner was deported to Bangladesh on 10.8.2008. At the time of deportation, the photographs and finger prints of the petitioner were obtained. Necessary documents and exit confirmation number have been recorded and preserved. The report has further stated that as to how the petitioner could come back to Assam, is not known and that the role of the BSF is also not known. Thus, the report does not through any light as to how the petitioner could come back from Bangladesh even after his deportation. 28. The experience of this Court is that after the orders passed by the Foreigners Tribunal declaring the person or persons concerned to be illegal migrants from Bangladesh, they invoke the writ jurisdiction and once the orders of the Tribunal are upheld with direction to deport them to Bangladesh, they do the act of vanishing or the authority express its difficulty in deporting them. In this connection, the judgments and orders passed in WP (C) 643/2009 (Ms. Anowara Khatun v. Union of India) WP (C) 1258/2009 (Mrs. Aisa Bibi v. Union of India and Ors.), WP (C) 1311/2009 (Nidhan Biswas v. Union of India and Ors.), WP (C) 1307/2009 (Md. Khused Ali v. Union of India and Ors.), WP (C) 190/2009 (Md. Abdul Kuddus v. State of Assam and Ors.), WP (C) 698/2009 (Munindra Ch. Roy v. Union of India and Ors.), WP (C) 747/09 (Himangshu Sarkar v. State of Assam and Ors.), WP (C) 152/09 (Rajia Khatun v. Union of India and Ors.), WP (C) 464/09 (Md. Samsul Haque and Ors. v. State of Assam and Ors.), WP (C) 1044/09 (Salema Bibi (Khatun) v. Union of India and Ors.), WP (C) 80/09 (Smt. Malati Das v. Union of India and Ors.), WP (C) 1334/09 (Mameza Khatun v. Union of India and Ors.), WP (C) 191/09 (Upendra Roy v. Union of India), WP (C) 1708/08 (Samsul Hoque v. State of Assam and Ors.), WP (C) 5497/08 (Nathu Ram Biswas v. Union of India and Ors.), WP (C) 5545/08 (Gopal Ch. Das v. Union of India and Ors.), WP (C) 1166/09 (Tarabhanu v. Union of India and Ors.), WP (C) 1045/09 (Mustt. Sahera Khatun v. Union of India and Ors.), WP (C) 5542/2008 (Mustt. Das v. Union of India and Ors.), WP (C) 1166/09 (Tarabhanu v. Union of India and Ors.), WP (C) 1045/09 (Mustt. Sahera Khatun v. Union of India and Ors.), WP (C) 5542/2008 (Mustt. Hazera Khatun v. Union of India and Ors.) and WP (C) 5560/2008 (Md. Jalal Uddin v. Union of India and Ors.), may be referred to. In most of the cases, the jurisdictional Superintendent of Police has submitted report that the Bangladeshi nationals are not traceable and their whereabouts are not known. 29. In the instant case, the petitioner even after deportation to Bangladesh could come back to Assam easily and even could invoke the writ jurisdiction of this Court. This is under the very nose of the Police Department and the State Administration. If this is the result of establishing the Foreigners Tribunals for detection and deportation of Bangladeshi nationals, no useful purpose has been served by establishing the same. There is no point in incurring huge expenditures towards running the Foreigners Tribunals, if there is total failure, both on the part of the Central and the State Government to implement the orders of the Tribunal and this Court. There is not only wastage of huge public money but also wastage of precious time of the Court in carrying out useless formalities. 30. It is not for nothing the Apex Court in Sarbananda Sonowal-I (supra) referred to the provisions of Article 355 of the Constitution of India, which deals with the duty of the Union to protect States against external aggression and internal disturbances. As observed in the said judgment, 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 of procedure; the practice of making attacks or encroachment; 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'. 31. In paragraph 34 of the judgment, the Apex Court has observed thus: 34. There was a large scale influx of persons from the then East Pakistan into India before the commencement of December, 1971 Indo-Pak war. On 3rd November, 1971, one month before the actual commencement of the war. Dr. 31. In paragraph 34 of the judgment, the Apex Court has observed thus: 34. There was a large scale influx of persons from the then East Pakistan into India before the commencement of December, 1971 Indo-Pak war. On 3rd November, 1971, one month before the actual commencement of the war. Dr. Nagendra Singh, India's representative in the Sixth Committee of the General Assembly on the Definition of Aggression, made a statement, wherein he said: ...The first consideration, in the view of the Indian Delegation, is that aggression must be comprehensively defined. Though precision may be the first virtue of a good definition, we would not like to sacrifice the requirement of a comprehensive definition of aggression at any cost. There are many reasons for holding this view. Aggression can be of several kinds such as direct or indirect, armed in nature or even without the use of any arms whatsoever. There can be even direct aggression without arms.... We would accordingly support the categorical view expressed by the distinguished delegate of Burma, the U.K. and others that a definition of aggression excluding indirect methods would be incomplete and therefore dangerous. .... For example, there could be a unique type of bloodless aggression from a vast and incessant flow of millions of human beings forced to flee into another State. If this invasion of unarmed men in totally unmanageable proportion were to not only impair the economic and political well-being of the receiving victim State but to threaten its very existence. I am afraid, Mr. Chairman, it would have to be categorised as aggression. In such a case, there may not be use of armed force across the frontier since the use of force may be totally confined within one's territorial boundary, but if this results in inundating the neighbouring State by millions of fleeing citizens of the offending State, there could be an aggression of a worst order.... What I wish to convey, Mr. Chairman, is the complexity of the problem which does not permit of a four line definition of aggression much less an ad-interim declaration on it. (See Volume 11 (1971) Indian Journal of International Law p. 724) This shows that the stand of our country before the U.N.O. was that influx of large number of persons from across the border into India would be an act of aggression. 32. (See Volume 11 (1971) Indian Journal of International Law p. 724) This shows that the stand of our country before the U.N.O. was that influx of large number of persons from across the border into India would be an act of aggression. 32. It is also not for nothing the Apex Court has exclusively referred to the report dated 8.11.1998 sent by the then Governor of Assam Lt. General S.K. Sinha (Retd), former Deputy Chief of Army Staff in Sarbananda Sonowal-I (supra). Paragraph 7 of the report finds mention of the observations of Zulfikar Ali Bhuttu and Sheikh Mujibur Rahman in the following words: 7. Failure to get Assam included in East Pakistan in 1947 remained a source of abiding resentment in that country. Zulfikar Ali Bhuttu in his book "Myths of Independence" wrote-"It would be wrong that Kashmir is the only dispute that divides India and Pakistan,. though undoubtedly the most significant. One at least is nearly as important as the Kashmir dispute, that of Assam and some districts of India adjacent to East Pakistan. To these Pakistan very good claims". Even a pro-India leader like Sheikh Mujibur Rahman in his book "Eastern Pakistan; its population and economics" observed. "Because Eastern Pakistan must have sufficient land for its expansion and because Assam has abundant forests and mineral resources, coal, petroleum etc., Eastern Pakistan must include Assam to be financially and economically strong. 33. The preamble to Constitution of India reads as follows: WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVERIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation]; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. 34. 34. If the above is the manner and method of constituting India into a Soverign, Socialist, Secular, Democratic Republic and to secure to all its citizens, which also include the indigenous people of Assam, the cherished goals enumerated in the preamble, the days are not far off when the indigenous people of Assam will find themselves as a minority group in their own land and the desire expressed by the then premiers of Pakistan and Bangladesh will be a reality. 35. As observed by the Apex Court in Sarbananda Sonowal-I (supra) case, unabated influx of illegal migrants from Bangladesh has posed a threat to the integrity, security and entity of the State of Assam. Elaborately explaining the term "aggression", In Article 355 of the Constitution of India, it has been observed that 'aggression' is a word of very wide import having complex dimensions and is to a large extent depend upon fact situation and its impact. It is in this context, the observation was made in paragraph 34 of the judgment/which has been quoted above. Further, in paragraph 38 of the judgment, the following observation has been made: 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. 36. There is no longer any doubt that the State of Assam has been swamped by lacs of illegal Bangladeshi migrants threatening the very identity of the indigenous people of Assam. Even after 62 years of independence, no serious efforts have been made to arrest this menace. As observed in Sarbananda Sonowal-I (Supra), in many of the Districts, there is a change of population pattern reducing the indigenous people to minority. This unabated influx coupled with unwilling approach of the State and the Union Government to take effective measures to stop such influx, has posed a serious threat to the very existence of the State of Assam and its indigenous people. 37. This unabated influx coupled with unwilling approach of the State and the Union Government to take effective measures to stop such influx, has posed a serious threat to the very existence of the State of Assam and its indigenous people. 37. In the normal circumstances, in case of deriving satisfaction that grave emergency exists whereby the security of India or of any part of the territory thereof is threatened inter alia by external aggression, the emergency provisions of the Constitution of India would have been invoked with the resultant effect of proclamation of emergency. Even if no emergency is declared on such external aggression to this part of India i.e. Assam, what is expected and required of the State and the Union Government is to take some action plan on war footing to save Assam from the unslought of unabated Bangladeshi aggression. They cannot remain silent spectators to such a serious problem and allow the things to happen towards creation of a situation in which no remedial measures will be left with. 38. The writ petition is dismissed. The petitioner is already in custody of the Police, The Superintendent of Police(B) Diphu shall ensure deportation/push back of the petitioner. He will also ensure deletion of the name of the petitioner from the electoral rolls. This direction for deportation has been made as no other direction can be issued, but knowing it fully well that with a porous border, the petitioner as on the earlier occasion, will be able to come back to Assam under the very nose of the protectors of borders and to which the State and the Central Government perhaps will remain silent spectators as the experience of this Court goes. 39. List the matter on 6.11.2009 for furnishing compliance report by the Superintendent of Police(B), Diphu. Send down the LCR to the Foreigners Tribunal along-with a copy of this judgment. 40. Let copies of this judgment and order be sent to the Superintendent of Police(B), Diphu and the Union of India in the Ministry of Home Affairs. Another copy be furnished to Ms. R. Chakraborty, learned Addl. Senior Govt. Advocate, Assam.