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2013 DIGILAW 1 (GAU)

Parboti Prasad Goswami v. Union of India

2013-01-01

ADARSH KUMAR GOEL, N.KOTISWAR SINGH

body2013
JUDGMENT N. Kotiswar Singh, J. 1. These two writ petitions in the form of public interest litigations being, PIL No. 34 of 2010 filed by eight individuals and PIL No. 77 of 2010, by six organization associations, all based in the State of Assam, have been filed, claiming the relief for declaring Section 6A of the Citizenship Act, 1955 ultra vires the Constitution of India. The common foundational basis of the two PILs is that there has been unabated illegal migration to the State of Assam from the erstwhile East Pakistan, present Bangladesh for decades since independence assuming alarming proportions during the seventies, which still continues, which has not only upset the demographic, cultural and political profile of the State of Assam but also amounts to external aggression as well as causing internal disturbance threatening the secure of the nation. The case of the petitioners may be stated briefly as follows: (i) Because of historical reasons, even though illegal migration had been taking place from the erstwhile East Pakistan, now Bangladesh since independence, the right of citizenship of the migrants had been restricted to such persons whose either of the parents or any of his grand-parents was born on India as defined in the Government of India Act, 1935 and in the case where such person has so migrated before 19.7.1948, he, has been ordinarily resident in the territory of India, or in the case where such person has so migrated on after 19.7.1948, he has been registered as a citizen of India (Article 6 of the Constitution). (ii) As illegal migration continued unabated to Assam the Government of India was compelled to enact the immigrants (Expulsion from Assam) Act, 1950 with the specific aim of containing the large scale illegal migration from East Pakistan. However, the said enactment could not produce the desired result. After the formation of Bangladesh in 1972, though a large number of refugees went back to Bangladesh, equally large number of refugees stayed back in India illegally and the large scale illegal migrations continued so much so that a large number of illegal migrants from East Pakistan/Bangladesh were included in the in the electoral rolls of the districts of Assam which are located near the international border to Bangladesh. Subsequent detection of thousands of Bangladeshi nationals in the electoral rolls more particularly in Mangadoi constitutions created a groundswell of resentment and anger amongst the local populace of Assam which ignited and sustained the long drawn agitation popularly known as 'Assam Agitation' in which the students of Assam took a prominent role, which lasted for about 6 (six) years from 1979 to 1985 culminating in the signing of 'Assam Accord' 1985 which also dealt with the issue of illegal migrants. (iii) Relevant parts of the Assam Accord relating to detection and deportation of illegal immigrations may be stated as follows: 1. For purposes of detection and deletion of foreigners; 1.1.1966 shall be the base data and year. 2. All persons who came to Assam prior to 1.1.1966, including those amongst them whose names appeared on the electoral rolls used in 1967 elections shall be regularized. 3. Foreigners which came to Assam after 1.1.1966 (inclusive) and up to 24th March, 1971 shall be detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order 1964. 4. Names of foreigners so detected will be deleted from the electoral rolls in force. Such persons will be required to register themselves before the Registration Officers of the respective districts in accordance with the provisions of the Registration of Foreigner Act, 1939 and the Registration of Foreigners Rules, 1939. 5. On the expiry of a period of ten years following the date of detection, the names of all such persons which have been deleted from the electorals rolls shall be restored. 6. Foreigners who came to Assam on or after March 25, 1971 shall continue to be detected, deleted and practical steps shall be taken to expel such foreigners. (iv) By the amendment brought in the Citizenship Act, 1955 by setting Section 6A, the illegal immigrants from Bangladesh to the State of Assam purportedly covered by 'Assam Accord' had granted citizenship. Salient features of the newly inserted Section 6A of the Citizenship Act, 1955 are as follows: 1. All persons of Indian who came before the 1.1.1966 to Assam from the Bangladesh territory shall be deemed to be citizens of India as from the 1.1.1966. 2. Salient features of the newly inserted Section 6A of the Citizenship Act, 1955 are as follows: 1. All persons of Indian who came before the 1.1.1966 to Assam from the Bangladesh territory shall be deemed to be citizens of India as from the 1.1.1966. 2. Such person who came to Assam on or after the 1.1.1966 but before the 25.3.1971 and been ordinarily resident in Assam and has been detected to be a foreigner, shall register himself and 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. 3. A person so registered will enjoy the same rights and obligations as a citizen of India but shall not be entitled to have his name included in any electoral roll for any Assembly or Parliamentary constituency before the expiry of ten years. 4. After expiry of ten years, he shall be deemed to be a citizen of India for all purposes as from the date of expiry of a period of ten years from the date on which he has been detected to be a foreigner. (v) While challenging the constitutional validity of the aforesaid Section 6A of the Citizenship Act, 1955, the petitioners have made reference to certain paragraphs in the judgment of the Supreme Court in Sarbananda Sonowal v. Union of India, (2005) 5 SCC 661 to highlight the gravity of the problem of illegal immigration and its pernicious effects. Referring to a s(sic) report prepared by the Government, the Supreme Court noted para 4 of the judgment in Sarbananda Sonowal (supra): 4. A true copy of the latest status report filed by the Government in Writ Petition No. 125 of 1998, which has been filed seeking deportation of all Bangladeshi nationals from India, has been filed as annexure B-1 to the counter-affidavit and paras 3 to 7 of the said status report are being reproduced below: 3. Continuing influx of Bangladeshi nationals into India has been on account of a variety of reasons including religious and economic. There is a combination of factors on both sides which are responsible for continuing influx of illegal immigration from Bangladesh. Continuing influx of Bangladeshi nationals into India has been on account of a variety of reasons including religious and economic. There is a combination of factors on both sides which are responsible for continuing influx of illegal immigration from Bangladesh. The important 'Push Factors' on the Bangladesh side include: (a) Steep and continuous increase in population; (b) Sharp deterioration in land-man ratio (c) Low rates of economic growth particularly poor performance in agriculture; The 'Pull factors' he Indian side include: (a) Ethnic proximity and kinship enabling easy shelter to the immigrants; (b) Porous and easily negotiable border with Bangladesh; (c) Better economic opportunities; (d) Interested religious and political elements encouraging immigration. 4. It is difficult to make a realistic estimate of the number of illegal immigrants from Bangladesh because they enter surreptitiously and are able to mingle easily with the local population due to ethnic and linguistic similarities. The demographic composition in the districts bordering Bangladesh has altered with the illegal immigrate' from Bangladesh. The districts of Assam and West Bengal bordering Bangladesh have recorded growth of population higher than the national average. The States of Meghalaya, Mizoram and Tripura have also recorded high rates of population growth. Illegal immigrants From Bangladesh have also been using West Bengal as a corridor to migrate to other parts of the country. 5. The large-scale influx of legal Bangladesh immigrants has led to large tracts of sensitive international borders being occupied by foreigners. This has serious implications for internal security. 6. The types of illegal migrants are as follows: (a) Those who came with valid visa/documents and overstayed; (b) Those who came with forged visa/documents; and (c) Those who entered surreptitiously. The Supreme Court also made reference to a report prepared by then Governor of Assam, Lt. Gen. S.K. Sinha, in which it was stated: CONSEQUENCES 22. The dangerous consequences of large-scale illegal migration from Bangladesh, both for the people of Assam and more for the nation as a whole, need to be emphatically stressed. No misconceived and mistaken notion if secularism should be allowed to come in the way of doing so. 23. As a result of population movement from Bangladesh, the spectre looms large of the indigenous people of Assam, being reduced to a minority in their home State. Their cultural survival will be in jeopardy, their political control will be weakened and their employment opportunities will be undermined. 24. 23. As a result of population movement from Bangladesh, the spectre looms large of the indigenous people of Assam, being reduced to a minority in their home State. Their cultural survival will be in jeopardy, their political control will be weakened and their employment opportunities will be undermined. 24. The silent and invidious demographic invasion of Assam may result in the loss of the geostrategically vital districts of lower Assam. The influx of these illegal migrants is turning these districts into a Muslim majority region. It will then only be a matter of time when a demand for their merger with Bangladesh may be made. The rapid growth of international Islamic fundamentalism may provide for driving force for this demand. In this context, it is pertinent that Bangladesh has long discarded secularism and has chosen to become an Islamic State. Loss of lower Assam will sever the entire land mass of the North-East, from the rest of India and the rich natural resources of that region will be lost to the Nation. (vi) As regards the implication of large scale illegal immigration on national security, the Supreme Court in Sarbananda Sonowal (supra), observed that, 51. The foremost duty of the Central Government is to defend the borders of (he country, prevent any trespass and make the life of the citizens safe and secure. The Government has also a duty to prevent any internal disturbance and maintain law and order...in fact Entries 1 to 4 of List I of Seventh Schedule mainly deal with armed forces. Article 355 of the Constitution of India reads as under: 355. Duty of the Union to protect States against external aggression and internal disturbance.--It shall be the duty of the Union to protect every State against external aggressions and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution. .... 63. 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 the Union of India to take an measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. It, therefore, becomes the duty of the Union of India to take an 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. .... 70. As mentioned earlier the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of North-Eastern region. Their presence has changed the demographic character of that region and the local people of Assam have been reduced to a status of minority in certain districts. In such circumstances, if Parliament had enacted a legislation exclusively for the State of Assam which was more stringent than the Foreigners Act, which is applicable to rest of India, and also in the State of Assam for identification of such persons who migrated from the territory of present Bangladesh between 1.1.1966 and 24.3.1971, such a legislation would have passed the test of Article 14 as the differentiation so made would have had rational nexus with the avowed policy and objection of the Act. But the mere making of a geographical classification cannot be sustained where the Act instead of achieving the object of the legislation defeats the very purpose for which the legislation has been made. As discussed earlier, the provisions of the Foreigners Act are far more effective in identification and deportation of foreigners who have illegally crossed the international border and have entered India without any authority of law and have no authority to continue to remain in India. For satisfying the test of Article 14, the geographical factor alone in making a classification is not enough but there must be a nexus with the objects sought to be achieved. If geographical consideration aspect of "rational nexus with the policy and object of the Act" it would be open to the signature to apply enactments made by it to any sub-division or district within the State and leaving others at its sweet will. This is not the underlying spirit or the legal principle on which Article 14 is founded. If geographical consideration aspect of "rational nexus with the policy and object of the Act" it would be open to the signature to apply enactments made by it to any sub-division or district within the State and leaving others at its sweet will. This is not the underlying spirit or the legal principle on which Article 14 is founded. Since the classification made whereby the IMDT Act is made applicable only to the State of Assam has no rational nexus with the policy and object of the Act, it is clearly violative of Article 14 of the Constitution and is liable to be struck down on this ground also. .... 82. It is the foremost duty of the Central Government to protect its borders and prevent trespass by foreign nationals. Article 51A(d) of the Constitution says that it shall be the duty of every citizen of India to defend the country and render national service when called upon to do so. If an Act made by the legislature has the disastrous effect of giving shelter and protection to foreign nationals who have illegally transgressed the international border and are residing in India and further the Act is unconstitutional, any citizen is entitled to bring it to the notice of the Court by filing a writ petition under Article 32 of the Constitution. 2. The petitioners accordingly, contend that, A. The aforesaid law, i.e. Section 6A of the Citizenship Act, 1955 treats foreigners living in Assam as a separate/special class by granting citizenship to all foreigners who came to Assam before 1.1.1966 and also to all those who came and resided in Assam on or after 1.1.1966 up to 25.3.1971. B. The provisions of Section 6A has created a separate class of people hearing in the State of Assam by rendering special treatment much more advantageous and beneficial than those of other similarly situated persons who are illegal immigrants entering into and living in other states of India without satisfying the reasonableness for such classification from among the similarly situated persons, thus violative of Article 14 of the Constitution of India. C. This law has been made for and applicable only to the State of Assam purely on consideration of geographical disposition and in violation and derogation of national policy as regards citizenship. C. This law has been made for and applicable only to the State of Assam purely on consideration of geographical disposition and in violation and derogation of national policy as regards citizenship. D. The enactment has not made any distinction between those illegal immigrants who were persecuted in their home land because of political or religious beliefs and thereby compelled to migrate in contradiction to those who sneak into the country voluntarily solely to get better opportunities in India or those who are involved in criminal activities migrating to avoid the process of law or such undesirable elements who are enemies or agents of enemies of the state. E. Large scale influx of illegal immigrants to Assam amounts to "external aggression" and also causes "internal disturbances". Mow-ever, by regularizing and granting citizenship to a large number of illegal immigrants who entered during 1.1.1951 and 25.2.1971, the Union has failed in its constitutional duty to protect the state against external aggression and internal disturbance as mandated under Article 355 of the Constitution of India read with Entry I of List 1 of the Seventh Schedule. 3. The Union of India, though had not filed any affidavit-in-opposition, submitted that- A. There is a fundamental presumption of constitutionality of a statute and the Courts should try to sustain the validity of an enactment to the extent possible. B. The basis and rationale behind the enactment of Section 6A of the Citizenship Act is the Assam Accord as is clear from the objects and reasons of the said amendment Act. C. The intention of the Parliament was to bring in a legislation to give effect the relevant clauses of the 'Assam Accord' creating to foreigners' issue, a politic settlement. D. Since, there is no challenge to the legislative competence of the Union of India to amend the Citizenship Act, the only ground of challenge would be whether such an enactment has violated any of the fundamental rights guaranteed in Part III of the Constitution of India or any other constitutional provisions. E. It is the sole prerogative of the Parliament to regulate the right of citizenship, including grant or termination of citizenship under Article 11 of the Constitution of India notwithstanding anything contained in Part II of the Constitution. E. It is the sole prerogative of the Parliament to regulate the right of citizenship, including grant or termination of citizenship under Article 11 of the Constitution of India notwithstanding anything contained in Part II of the Constitution. F. There is no policy as regards citizenship as provided in Part II of the Constitution of India and the Parliament in its wisdom cock and had enacted Section 6A of the Citizenship Act. G. Reliance on Sarbananda Sonowal (supra) for questioning the validity of the enactment as violative of Article 14 is misplaced as the sole issue for consideration before the Supreme Court in the said case was the constitutional validity of the Illegal Migrants (Determination by Tribunals) Act, 1983. The Supreme Court struck down the IMDT Act as violative of Article 14 on the ground that there was no rational nexus with the objective sought to be achieved. It was held that the stated objective of facilitating expulsion of illegal migrants who entered India after 25.3.1971 was not achieved by the IMDT Act. II. In response to the contention of the petitioners that provisions of Section 6A are restricted in its operation to Assam, thus having no intelligible differential and hence, repugnant to Article 14, it has been contended that classification made on geographical criteria based on historical facts is a perfectly valid and acceptable. I. As Section 6A was acted to give legislative effect to 'Assam Accord', the enactment has a rational nexus with the objective sought to be achieved and hence not violative of Article 14 of the Constitution of India. 4. On consideration of the respective contentions of the parties in the backdrop of the facts highlighted above, the flowing issues though not exhaustive arise for consideration by this Court: A. Whether Section 6A of the Citizenship Act, 1955 has created a separate class of people who are Illegal migrants living in the State of Assam rendering special treatment much more advantageous and beneficial than those of other similarly situated persons altering into and living other states of India without satisfying the reasonableness for such classification from among the similarly situated illegal immigrants, thus violating Article 14 of the Constitution of India. B. Can the classification based on specific geographical area provide valid intelligible differentia for the enactment for the purpose of Article 14? B. Can the classification based on specific geographical area provide valid intelligible differentia for the enactment for the purpose of Article 14? C. Can the provisions of 'Assam Accord', a political settlement provide the valid rational nexus for the enactment of Section 6A? D. Can the justification for the enactment of Section 6A for implementing 'Assam Accord' provide legal validation of the provisions of the section? If so, do the provisions of 'Assam Accord' provide for grant of citizenship to all the illegal migrants entering between 1.1.1961 and 25.3.1971? Or, Did "Assam Accord contemplate grant of full fledged citizenship to the legal migrants who entered between 1.1.1961 and 25.3.1971 which Section 6A seeks to do? Or, Assam Accord" merely provided for regularization of illegal migrants and does not mention grant of full fledged citizenship and hence, can "Assam Accord" provide sufficient rational nexus for enacting Section 6A to grant full fledgling citizenship to illegal migrants? E. By not distinguishing and differentiating the individual nature of illegal migrations, between the voluntary and non voluntary or forced ones, do the provisions of Section 6A suffer from the vice of arbitrariness and hence violative of Article 14 of the Constitution? Or, By granting citizenship of this country to all kinds of illegal immigrants without any discrimination, irrespective of the reasons for migration, do the provisions of Section 6A suffer from the vice of arbitrariness? F. By granting citizenship to a large number of illegal immigrants who entered during 1.1.1961 and 25.3.1971 without any discrimination/scrutiny, docs Section 6A have the effect of compromising the constitutional mandate upon the Union under Article 355 of the Constitution of India read with Entry 1 of List 1 of the Seventh Schedule? Considering that the issues raised involve not only important questions of law but may have far reaching consequences and wide ramifications on different dimensions of demography, culture, polities, national security, etc. of the country, we deem it fit to refer to a larger Bench to decide the issues raised.