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2015 DIGILAW 1341 (GAU)

Government of Assam v. Mameza Khatun & Ors.

2015-10-13

P.K.SAIKIA, RUMI KUMARI PHUKAN

body2015
P.K. Saikiaj.:-- 1. This appeal has been filed against the order dated 23.3.2011, rendered by the learned Single Judge in WP(C) No. 1334/2009, directing the respondents therein to carry out the following directions : 1. The Election Commission of India shall ensure that the 'D' voters are not allowed to cast their votes. 'D' voter will also include the persons whose names are included in the electoral rolls but their citizenship are in doubt/disputed and whose cases are pending in various Foreigners Tribunals. 2. To facilitate the above exercise, the Superintendent of Police (B) of all the Districts shall collect names of such persons whose cases are pending in the Foreigners Tribunals and furnish the same to the jurisdictional Electoral Registration Officer/Returning Officer towards ensuring that they are not allowed to cast their votes. 3. All the concerned authorities will act in the matter promptly and no excuse will be entertained. They will bear in mind that their allegiance is to the Constitution of India and not to the political bosses. 4. The aforesaid direction should be carried out in war-footing towards ensuring that such doubtful/disputed voters are not allowed to cast their votes in the ensuing election to the State. 5. Any dereliction of duty towards implementation of the directions contained in this order would be viewed seriously. The Officers concerned will bear in mind that such dereliction may result in initiation of departmental proceeding including invocation of the provisions of article 311 of the Constitution of India. 2. Being aggrieved, the State respondents have preferred this appeal alleging that in rendering the directions in order in question, the learned Single Judge travelled far beyond his jurisdiction, conferred under article 226 of the Constitution of India. 3. We have heard Mr. Nagendra Rai, learned senior counsel, appearing for the appellant. Also heard Mr A.C. Buragohain, learned A.G., Assam, Mr. B.J. Ghosh and Mr. Navnit Kumar, Government Advocates, Assam as well as Mr. S.C. Keyal, learned A.S.G.I. appearing for the Union of India. Also heard Mr. D. Baruah, learned counsel appearing for the Election Commission of India ('the Commission'). 4. The facts necessary for disposal of the present appeal, in brief, are that one Mameza Khatun who is said to be a Bangladeshi national allegedly entered into India (Assam) after 25th March, 1971 and started to stay here illegally ever since. Also heard Mr. D. Baruah, learned counsel appearing for the Election Commission of India ('the Commission'). 4. The facts necessary for disposal of the present appeal, in brief, are that one Mameza Khatun who is said to be a Bangladeshi national allegedly entered into India (Assam) after 25th March, 1971 and started to stay here illegally ever since. On the basis of such an allegation, a reference was made to Illegal Migrant (Determination) Tribunal [in short 'IM(D)T']. On the basis of such reference, a proceeding was initiated, same being IM(D)T Case No. 3031/2004. 5. During the pendency of the said proceeding, decision in Sarbananda Sonowal v. Union of India, AIR 2005 SC 2934 was rendered by the Apex Court of the country under which the IMDT Act stood quashed. In view of the decision in Sarbananda Sonowal (supra), the aforesaid proceeding along with many other similar proceedings, pending before the different Tribunals were transferred to the respective Foreigners Tribunals. 6. In due course, the Foreigners Tribunal registered a case against one MRs. Mumtaz Begum, D/O Late Asmot Ali vide F.T. Kamrup (Metro) Case No. 49/2007 and ordered issuance of notice on MRs. Mumtaz Begum. The appellant herein claims that she is Mameza Khatun, D/O Late Haren Kazi and not Mrs Mumtaz Begum, D/O Late Asmot Ali and as such, she had no reason to appear before the Tribunal. However, she was forced to appear before the Foreigner's Tribunal for which she appeared before the Tribunal on 28.8.2007 as well as on 10.10.2007. 7. On her appearance before the Tribunal, she produced her voters list containing the name of her father as well as the residential certificate which she collected from Sudarpara Gaon Panchayat of Dhubri and apprised the learned Member of the Tribunal that she is not MRs. Mumtaz Begum, D/O Late Asmot Ali. According to her, she, being the daughter of late Haren Kazi, an Indian citizen, is a genuine Indian by birth. After appraising the aforesaid facts to the learned Member of the Tribunal, she did not appear before the Tribunal anymore on the hope that her claim would be accepted by Tribunal in due course. 8. According to her, she, being the daughter of late Haren Kazi, an Indian citizen, is a genuine Indian by birth. After appraising the aforesaid facts to the learned Member of the Tribunal, she did not appear before the Tribunal anymore on the hope that her claim would be accepted by Tribunal in due course. 8. However, the order dated 4.3.2008, rendered in F.T. Kamrup (Metro) Case No. 49/2007 reveals that such a proceeding was heard and decided ex parte since she reportedly started defaulting in appearing before the Tribunal on and from 10.10.2007 and under such circumstances, an ex parte order was passed and thereunder the petitioner stood declared as foreign national who entered into Assam after 25.3.1971. In due course, Quit India Notice was served on the petitioner. 9. Being so served with such notice, she filed a writ proceeding before this court which was registered as WP(C) No. 1334/2009 challenging the order of the Tribunal stating that the decision of the Tribunal was based, not on facts, but on fiction. More importantly, such decision was rendered misinterpreting the facts and as well as the law holding the field. Notice of such proceeding was served on the respondents. 10. During the course of proceeding, the petitioner once again defaulted and her whereabouts were not known even to the counsel who represented her before this court. Such a conduct on the part of the petitioner in WP(C) No. 1334/2009 forced the learned Single Judge to make an enquiry as to the cause of disappearance of the petitioner which brought to the fore some surprising but disquieting revelations since the learned Single Judge noticed that although a large number of persons who were declared as foreigners by different Tribunals, their names have not been deleted from the connected voters lists. 11. What is worse, most of those people who were declared foreigners disappeared although they were supposed to be pushed back to the country of origin. The learned Single Judge also noticed that a large number of people who were so declared foreigners, most astonishingly, keep on casting their votes in different elections taking advantage of b their names not being deleted from the concerned voter's lists. 12. The learned Single Judge also noticed that a large number of people who were so declared foreigners, most astonishingly, keep on casting their votes in different elections taking advantage of b their names not being deleted from the concerned voter's lists. 12. It is worth noting here that in 1997, the Election Commission of India undertook an intensive revision of electoral rolls since it apprehended that a large number of foreigners, who had entered into India after 25th March, 1971, had their names enrolled most illegally in the voters' lists. c During such revision, it is also found that names of as many as 3,13,046 persons were there in the voters' lists whose statuses as Indian citizens were found to be doubtful and, therefore, their cases have been referred to Tribunals for determination of their citizenship status. 13. Since the election was round the corner and since the number of such voters was quite big and since there was no means to determine the citizenship status of those doubtful voters within a short period of time, the Election Commission of India directed its Electoral Officers in Assam to put the word "D" before the names of such doubtful voters so that they may be prevented from casting their votes in the elections that e may be held from time-to-time vide notification dated 5.1.1998. 14. The relevant part of the Notification dated 5.1.1998 is reproduced below : "Whereas, the conjoint reading of the above referred article 326 of the Constitution, section 16 of the R.P. Act, 1950 and section 62 of the R.P. Act, 1951, leaves no one in any manner of doubt that only a citizen of India alone, and no one else, is eligible to vote at elections to the House of People and the State Legislative Assemblies; and Whereas, in the light of the above unambiguous mandate of the Constitution g of India and R.P. Acts, 1950 and 1951 that only the Indian citizens alone, and no one else, shall vote at the aforesaid elections, logically follows that a person, whose citizenship status is in question and under consideration before a Foreigners Tribunal or an Illegal Migrants Determinations Tribunals shall not be eligible to vote, unless such Tribunal decides in his favour that he is a citizen of India".(Emphasis added)". " 15. " 15. In pursuance to notification dated 5.1.1998, the word "D" has been put before as many as 3,13,043 numbers of such doubtful voters whose cases had been so forwarded to Tribunals for determination of their citizenship status. But then, nothing has been done till date in respect of 4,06,451 number of voters as on 31.12.2010 (in respect of whom as many as 3,36,360 number of cases have been forwarded to the Tribunals for determination of citizenship status) as had been done in case of 3,13,043 under the guidelines in notification dated 5.1.1998. Worst still, the Commission did not do so despite the notification dated 5.1.1998 found the approval of the highest judiciary of the state. 16. It may be stated here that the guidelines, so issued under the notification dated 5th January, 1998 came to be challenged before this court by the way of Civil Rule (PIL) No. 185/1998 and Civil rule No. 253/1998 and Civil Rule No. 254/1998 wherein it was contended that the Election Commission in purported exercise of its plenary power of Superintendence, directions and control of preparation of electoral rolls for, and conduct of election to Lok-Sabha and Legislatures of the States under article 324 of the Constitution cannot issue such guidelines. 17. It had also been contended that every person who for the time being has found his name entered in the electoral rolls of any constituency, cannot be debarred from casting his vote as a voter of aforesaid constituency in view of provisions contained in section 62(1) of the Representation of People's Act, 1951 ('the RP Act, 1951'). Being so, the notification dated 5.1.1998, being violative of section 62(1) of the RP Act, 1951 is bad and unsustainable. 18. On hearing both the sides, this court dismissed the aforesaid proceeding holding as follows : "(10) The first question to be decided in these cases is whether the Commission has exceeded its powers under article 324 of the Constitution in issuing guidelines, quoted above, for provisionally registering the persons in the electoral rolls with the letter 'D' marked against their names; pending determination of their citizenship by appropriate Tribunals under the 1MDT act, 1983, the Foreigners Act, 1946 and the rules made thereunder. In Mohinder Singh Gill v. Chief Election Commr. In Mohinder Singh Gill v. Chief Election Commr. (supra), the Supreme Court had the occasion to deal with article 324 of the constitution vis-a-vis the RP Act, 1950, and the RP Act, 1951, made by the parliament under article 327 of the constitution, and the Supreme Court held: "Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for national and State elections arid, therefore, the necessary powers to discharge that function. It is true that Article 324 has to be read in the light of the constitutional scheme and the 1950 Act and 1951 Act. Sri Rao is right to the extent he insists that if competent legislation is enacted as visualized in article 327 the Commission cannot shake itself free from the enacted prescriptions." “Even so, situation may arise which enacted law has not provided for. Legislators are not prophets but pragmatists. So it is that the Constitution -- has made comprehensive provision in article 324 to take care of surprise --situations. That power itself has to be exercised, not mindlessly nor mala fide, not arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the presidential notification nor existing legislation. More is not necessary to specify; less is insufficient to leave unsaid. Article 324, in our view, operates in areas left unoccupied by legislation and the words 'superintendence, direction and control, as well as 'conduct of all elections' are the broadest terms." It will thus be clear from the aforesaid observations of the Supreme Court in the case of Mohinder Singh Gill that the power of the Commission under article 324 of the Constitution has to be exercised consistent with the provisions of the R.P. Act, 1950 and the R.P. Act, 1951 made under article 327 of the Constitution. But in the aforesaid decision, the Supreme Court made it further clear that in situations for which the enacted law has not provided for, the Commission has the power in the broadest terms under article 324 of the constitution to issue guidelines, instructions and pass ordeRs. This power of the Commission under article 324 of the Constitution to issue instructions and orders in areas left unoccupied by legislation, however, has to be exercised not in a mala fide, arbitrary or partial manner or without any application of mind. This power of the Commission under article 324 of the Constitution to issue instructions and orders in areas left unoccupied by legislation, however, has to be exercised not in a mala fide, arbitrary or partial manner or without any application of mind. This position of law has been reintegrated in Kanhiya Lal Omar v. R.K. Trivedi (supra), in which the symbols order issued by the Commission had been challenged on the ground that the Symbols order was not provided for in the R.P. Act, 1951, made by the Parliament under article 327 of the constitution. The Supreme Court held :"even if for any reason, it is held that any of the provisions contained in the Symbols order are not traceable to the Act or the Rules, the power of the Commission under article 324(1) of the Constitution which is plenary in character can encompass all such provisions. Article 324 of the Constitution operates in areas left unoccupied by legislation and the words 'superintendence', 'direction' and 'control' as well as 'conduct of all elections' are the broadest terms which would include the power to make all such provisions.' "thus, the law is now well-settled by the Apex Court that the power of the commission under article 324 of the constitution has to be exercised consistent with the Constitutional scheme and the provisions of the R.P. Act, 1950, and the RP Act, 1951, but for a situation for which the Legislature has not made any provision, the Commission can exercise the power and issue instructions, guidelines and orders regarding preparation of electoral rolls and conduct of elections. But such instructions, guidelines and orders should not be arbitrary or vitiated by mala fide or partiality. But such instructions, guidelines and orders should not be arbitrary or vitiated by mala fide or partiality. (11) The next question to be decided in these cases is whether the impugned instructions, guidelines and orders, quoted above, of the Commission to the Electoral registration Officer, Assam, for referring the cases of persons whose citizenship is in doubt to the competent authority under the IMDT Act, 1983 or the Foreigners Act, 1946, and for enrolling their names in the final electoral rolls with the letter 'D' marked against their names till the appropriate Tribunals decide the matter, and for not allowing such persons to cast their votes at any election to the House of (the People or to the Legislative Assembly of the State of Assam are inconsistent with the Constitutional scheme, the provisions of the R.P. Act, 1950, or the provisions of the R.P. Act, 1951, or are arbitrary or vitiated by mala fide. The Constitutional scheme for elections to the House of the people and to the Legislative Assembly of every State is given in articles 326 and 327 of the Constitution. Article 326 of the constitution provides that the elections to the House of the People and to the legislative Assembly of every State shall be on the basis of adult suffrage, that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under the constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. It is, thus, clear that as per the Constitutional scheme a person who is not a citizen of India is not entitled to be registered as a voter in any election. It is, thus, clear that as per the Constitutional scheme a person who is not a citizen of India is not entitled to be registered as a voter in any election. Article 327 of the Constitution further provides that subject to the provisions of the Constitution, Parliament may from time--to--time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either house of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. Since the power of the Parliament under article 327 of the Constitution to make provisions with respect to elections to Legislatures is subject to the provisions of the constitution, such power has to be exercised consistent with the provisions of article 326 of the Constitution. Hence, any law made by the Parliament under article 327 of the Constitution cannot confer any right on a person who is nod a citizen of India to vote at the elections. (12) In exercise of its powers under article 327 of the Constitution, the parliament has enacted the R.P. Act, 1950, and the R.P. Act, 1951. Section 16(1) of the RP Act, 1950, and sections 2(e) and 62(1)and 62(2) of the R.P. Act, 1951 are quoted herein below: "16. Disqualifications for registration in an electoral roll. -- (1) A person shall he disqualified for registration in an electoral roll if he -- (a) is not a citizen of India; or (b) is of unsound mind and stands so declared by a competent Court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. 2(e) "elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the people Act, 1950 (43 of 1950). 62, Right to vote. -- (1) No person who is not, and except as expressly provided by this act; every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. 62, Right to vote. -- (1) No person who is not, and except as expressly provided by this act; every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. (2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications in section 16 of the Representation of the People Act, 1950 (43 of 1950). "thus, section 16 (1) of the R.P. Act, 1950, makes a provision consistent with article 326 of the Constitution that a person who is not a citizen of India shall be disqualified for registration in an electoral roll. Similarly, section 2(e) of the R.P. Act, 1951, defines an 'elector' in relation to a constituency to mean a person whose name is entered in the electoral roll in that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the R.P. Act, 1950. Thus, a person who is not a citizen of India and who suffers from this disqualification mentioned in section 16 of the R.P. Act, 1950, is not an elector in relation to a constituency even though his name is entered in the electoral roll of that constituency. This definition of elector in section 2(e) of the R.P. Act, 1951, is also consistent with the constitutional scheme in article 326 of the constitution that only a citizen of India is entitled to be registered as a voter at the elections. Sub-section (1) of section 62 of the R.P. Act, 1951, provides that a person who for the time being is entered in the electoral roll of any constituency shall be entitled to vote in that constituency. But sub-section (2) of section 62 of the R.P. Act, 1951, provides that no person shall vote at an election in any constituency if he is subject to any of the disqualifications in section 16 of the R.P. Act, 1950. But sub-section (2) of section 62 of the R.P. Act, 1951, provides that no person shall vote at an election in any constituency if he is subject to any of the disqualifications in section 16 of the R.P. Act, 1950. Sub-sections (1) and (2) of section 62 of the R.P. Act, 1951 read together make it clear that a person who is not a citizen of India and suffers from this disqualification mentioned in section 16 of the R.P. Act, 1950, will have no right to vote under section 62 of the R.P. Act, 1951, even though he is for the time being entered in the electoral roll of a constituency. (13) In the case of Shyamdeo P.D. Singh v. Nawal Kishore Yadav, (supra), the Supreme Court discussed at length the aforesaid scheme in articles 326 and 327 of the Constitution as well as section 16 of the R.P. Act, 1950, and section 62 of the RP Act, 1951, and held that even if the name of a person is entered in the electoral roll for the time being, but such person is disqualified under any of the provisions of section 16 of the R.P. Act, 1950, he has no right to vote at the elections by virtue of sub-section (2) of section 62 of the R.P. Act, 1951. Paragraph 13 of the said decision of the Supreme Court as reported in AIR 2000 SC 3000 is quoted hereunder: "a perusal of the above said provisions leads to certain irresistible inferences. Article 326 of the Constitution having recognised the doctrine of adult suffrage has laid down constitutional parameters determinative of the qualifications and disqualifications relating to registration as a voter at any election. The two articles, i.e., article 326 and article 327 contemplate such qualifications and disqualifications being provided for, amongst other things, by the appropriate Legislature. The fountain source of the 1950 Act and 1951 Act enacting provisions on such subject are the said two Articles of the Constitution. The provisions of section 16 of the 1950 Act and section 62 of the 1951 Act read in juxtaposition go to show (hat while section 16 of the 1950 Act provides for 'disqualifications for registration' in an electoral roll, (qualifications having been prescribed by section 27 thereof). The provisions of section 16 of the 1950 Act and section 62 of the 1951 Act read in juxtaposition go to show (hat while section 16 of the 1950 Act provides for 'disqualifications for registration' in an electoral roll, (qualifications having been prescribed by section 27 thereof). Section 62 of the 1951 Act speaks of'right to vote' which right is to be determined by reference to the electoral roll of the constituency prepared under the 1950 Act. The eligibility for registration of those enrolled having been tested by reference to section 16 or section 27 of the Act, as the case may be, and the electoral roll having been prepared, under the 1950 Act if a person is or becomes subject to any of the disqualifications provided in clauses (a), (b) and (c) of sub-section (1) of section 16, two consequences may follow, His name may forthwith be struck off the electoral roll, in which the name is included, under sub-section (2) of section 16 of the 1950 Act. Even if the name is not so struck off yet the person is disqualified from exercising right to vote at the election by virtue of sub-section (2) of section 62 of the 1951 Act. The qualifications prescribed for enrolment in the electoral roll as provided by the 1950 Act are : (i) ordinary residence in a teachers' constituency, (ii) being engaged in the relevant educational institution for a total period of at least three years within the six years immediately before the qualifying date. The enquiry into availability of these eligibility qualifications, under the scheme of the 1950 Act is to be made at the time of" preparation of the electoral roll or while entering or striking out a name in or from the electoral roll shall not be entitled to vote at the election. To put it briefly a disqualification under, section 16 of the 1950 Act has a relevance for and a bearing on the right to vote under section 62 of the 1951 Act but being not qualified for enrolment in the electoral roll under section 27 of the 1950 Act has no relevance for or bearing on the right to vote at an election under section 62 of the 1951 Act. That is the distinction between a 'disqualification' and 'not being qualified'. That is the distinction between a 'disqualification' and 'not being qualified'. "Thus, the submission of Mr Das and Mr bhuyan, learned counsel for the petitioners, that once the name of a person is entered in the final electoral roll, he cannot be disallowed from exercising his right to vote under article 326 of the constitution and section 62 of the R.P. Act, 1951, is misconceived. In our considered opinion, if such a person whose name has been included in the final electoral roll suffers from the disqualification of not being a citizen of India mentioned in section 16 of the R.P. Act, 1950, he cannot be allowed to vote in view of the specific provisions in article 326 of the constitution, section 16 of the R.P. Act, 1950, and sections 2(e) and 62(2) of the RP Act, 1951. Thus, the instructions, guidelines and orders of the Commission are consistent with the Constitutional scheme and the provisions of the R.P. Act, 1950, and the R.P. Act, 1951." 19. Such a decision of this court in HRA Chaudhury & Ors. v. Election Commission of India & Ors. (2002) 1 GLT 1 was challenged before the ^pex Court of the country by preferring a Special Leave Petition. However, same came to be withdrawn afterward meaning thereby that :he decision in HRA Chaudhury (supra) affirming the guidelines issued through the notification dated 5.1.98 has attained finality in the mean time. 20. However, Mr. Nagendra Rai, learned senior counsel, appearing for the appellant submits that section 6A(a) and (b) of the Citizenship Act, 1955, ('the Act of 1955') has firmly secured the position of a suspected voter, whose case has been so forwarded to Tribunal for determination of his citizenship status since section 6A(a) and (b) of the Act, 1955 provides that a person in territories in Assam cannot be said to be "detected to be a foreigner" unless he is so detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 by a duly constituted Tribunal. 21. According to Mr. Nagendra Rai, learned senior counsel, since the suspected voters whose cases have been forwarded to the Tribunals in spite of their names found incorporated into the Electoral Rolls cannot be said to be "detected to be foreigners" inasmuch as the Tribunals, constituted under the law, have not yet decided their citizenships status. 21. According to Mr. Nagendra Rai, learned senior counsel, since the suspected voters whose cases have been forwarded to the Tribunals in spite of their names found incorporated into the Electoral Rolls cannot be said to be "detected to be foreigners" inasmuch as the Tribunals, constituted under the law, have not yet decided their citizenships status. Since they have not been yet adjudged as "detected to be foreigners", they cannot be debarred from casting their votes till they were declared so by the competent Tribunals. 22. But then, learned Single Judge under the judgment which is questioned in this appeal ordered the Election Commission of India not to allow those persons to cast their votes till their citizenships status are decided by competent Tribunals. Being so, not to speak of learned Single Judge, even the Election Commission in exercise of its plenary power under article 324 of the Constitution of India can render the order of the nature which was issued by learned Single Judge and which is impugned in the present appeal. 23. It may be stated here that with the progress of the proceeding, the State of Assam had filed several affidavits in response to various directions rendered by the learned Single Judge from time-to-time. We have also considered those affidavits in the light of the submissions, advanced by the counsel for the parties. 24. Mr. N. Rai, learned senior counsel questioned the directions in the order dated 23.3.2011 in WP(C) No. 1334/2009, on the following grounds : (a) More importantly, the directions in the order which is questioned in this appeal cannot be issued even by the Election Commission of India in exercise of its plenary power under article 324 of the Constitution of India. Even one assumes for a moment that the Election Commission had the power to issue aforesaid directions, no other authority, not even the High Court, can issue such directions. (b) The directions in question are rendered in the proceeding which was not the nature of public interest litigation but the directions, rendered, have enormous public importance and as such, such directions could have been rendered in a PIL to be heard by a Division Bench of this court in the terms of rule 7 of Rules of 2011, Gauhati High Court Rules. (c) In the proceeding before the Learned Single Judge, he had no occasion to render the order under challenge since the dispute before him was whether decision of the Tribunal declaring the petitioner to be foreigner was correct or not and rendering the decision aforesaid, learned Single Judge has travelled well beyond the territory earmarked by the law and the Constitution which renders the direction in question unsustainable. 25. Mr. A.C. Burogohain, learned Advocate General and other counsel appearing for the State of Assam have adopted the arguments, advanced by Mr. Nagendra Rai, learned senior counsel. In support of his contention, learned counsel appearing for the appellants has relied on the following decisions : 1. S.K. Dasgupta and Others v. Vijay Singh Sengar and Others, (2010) 12 SCC 305 . 2. High Court of Judicature at Allahabad Through its Registrar v. Raj Kishore Yadav and Others, (1997) 3 SCC 11 . 3. Shyamdeo Prasad Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46 . 4. Mohinder Singh Gill and Another v. The Chief Election Commissioner new Delhi and Others, (1978) 1 SCC 405 . 5. Sarbananda Sonowal v. Union of India, (2007) 1 SCC 174 . 6. Laxmi Kant Bajpai v. Haji Yaqoob and Others, (2010)4 SCC 81 . 7. N.P.Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64 . 8. Assam Samilita Mahasangha & Ors v. Union of India & Ors. , (2015) 3 SCC 1 . 26. However, such contentions were opposed to by Mr. D. Baruah, learned, Standing counsel for the Election Commission arguing that the directions in the order under challenge do not suffer from any infirmity whatsoever and as such, he urges this court to dismiss the appeal. In that connection, it has been argued that one needs to look into the facts and circumstances in which such an order was rendered. 27. Mr. Baruah submits that during the course of proceeding in WP(C) No, 1334/2009, learned Single Judge had noticed some very serious lapses on the part of different agencies of State in carrying out their constitutional directions of enormous public importance and significance which, in turn, gravely jeopardize the stability and strength of the country as a whole. To support such contention, Mr. Baruah, learned counsel for the Election Commission has taken us through the various orders passed in WP(C) No. 1334/2009. 28. To support such contention, Mr. Baruah, learned counsel for the Election Commission has taken us through the various orders passed in WP(C) No. 1334/2009. 28. As we go through the various orders, rendered in WP(C) No. 1334/ 2009, we have found that while dealing with the controversy in aforesaid proceeding, the learned Single Judge noticed that though under the direction of Election Commission of India in letter dated 5.1.1998, as many as 3,13,043 suspected voters were debarred from casting their votes in the elections, were to be held thereafter, until their cases are decided by Tribunals, yet, in respect of another 93,308 numbers of suspected voters whose cases had also been forwarded to the Tribunals, the Commission did not do same exercise which it had done in respect of 3,13,043 number of aforesaid voters under the guidelines dated 5,1.1998, 29. Mr, Baruah, learned counsel for the Election Commission, further submits that the learned Single Judge also noticed some other lapses which, according to the learned Single Judge, are fluent testimonies of various authorities grossly neglecting their statutory/Constitutional duties over a long period of time which not only make their existence a mockery but also resulted in situations which have all the potentiality to plunge the country to the problems of unthinkable proportion and complexity, 30. Under such circumstances, according to learned counsel for the Election Commission, the learned Single Judge had to issue the aforesaid directions to the Election Commission requiring the Commission not to allow those suspected voters, whose cases have been so forwarded to the Tribunals (but have not been debarred as yet from casting their votes in various elections as has been done in case of 3,13,043 numbers of voters under notification dated 5.1.1998), to cast their votes in the elections to be held from time-to-time until their citizenship status have been cleared by Tribunals. 31. Mr. D. Baruah, learned counsel for the Election Commission again contends that it is no longer res Integra that a person whose name has been entered in the voters' list can still be prevented from casting his vote in any election if he suffers from any of the disqualifications specified in section 16 of the R.P. Act, 1950 read with section 62(1) and 62(2) of the R.F, Act, 1951. A perusal of section 62(1), 62(2) of 1951 along with section 16 of 1950 in the light of decision of this court in the case of HRA Chaudhury (supra) makes such position more than clear. 32. In HRA Chaudhury (supra), this court held that a person whose name is entered in the voters' list but who found his case forwarded to the Tribunal for determination of his status as Indian citizen suffers from the disqualification specified in section 16 of the R.P. Act, 1950 and, therefore, he can still be prevented by the Election Commission from casting his vote and such disqualification would continue so long as his status as Indian citizen has not been cleared by Tribunal, constituted in accordance with the prescription of law -- argues Mr. Baruah. 33. According to Mr. Baruah since the aforesaid 93,308 suspected voters suffers from disqualifications, as stated in section 16 of the R.P. Act of 1950 read with section 62(1) and 62(2) of the R.P. Act, 1951, therefore, section 6A, more particularly, section 6A(a) and (b) of the Act, 1985, cannot be summoned to wipe out the efficacy of decision in HRA Chaudhury (supra), more so, when section 6 A of the Act of 1985 is itself under challenge before the Apex Court of the country in Assam Samilita Mahasangha (supra). 34. It has also been contended that when the authority/authorities, has/ have failed to exercise the powers/duties, entrusted to it/them under the Statute or under the Constitution or exercise such duties with material irregularity or exceeded the jurisdiction conferred on it/them, then a writ court must not sit idle and must rise to the occasion requiring such authority/authorities to do their duties, assigned to it/them under the law or under the Constitution. 35. In regard to the contention that a writ court cannot look into a matter of great public interest unless same is taken in a PIL in view of rule 7 of High Court (Public Interest Litigation) Rules, 2011, ('Rules of 2011'), it has been submitted that ordinarily, a matter of public importance is required to be looked into by Division Bench of the High Court in view of rule 7 of Rules, 2011. But such rule is not invioble under any circumstances. 36. But such rule is not invioble under any circumstances. 36. The writ court may shake it free from some procedural prescriptions in a situation which demands such action, more so, when justice itself is at stake and when the matter involved in a particular proceeding is of such nature that it brooks no delay. In such situation, writ court needs to rise to the occasion to exercise its extraordinary jurisdiction to prevent justice itself being the victim of hostile situation instead of dithering over such matter on some technical plea. 37. In regard to the allegation that the learned Single Judge had travelled well beyond his authority in the proceeding in question since the lis in the aforesaid proceeding, according to the appellant, was whether the judgment of the Tribunal in WP(C) No. 1334/2009 was correct or not, it has been argued that during the course of proceeding aforesaid, some facts were brought on record which devastatingly demonstrate that the matters connected with detection/declaration/deportation were not at all attended to by the authorities concerned although under the law they were saddled with responsibilities of executing such duties with minute meticulousness and precisions. 38. In such a scenario, according to learned standing counsel appearing for the Election Commission, the learned Single Judge having rendered the directions in the order under challenge has done what exactly the Fundamental Law of the country, same being the Constitution of India, 1 expected of a writ court to do. Being so, learned Single Judge had committed no error in rendering the aforesaid directions in WP(C) No. 1334/2009. Therefore, he submits this court to dismiss the appeal. 39. In support of his contention, Mr. Baruah has referred to the decision of hon'ble Apex Court in the case of Dawarka Nath v. Income-tax Officer, Special Circle, D-Ward, Kanpur and Anr., 1965 (3) SCR 536 as well as the decision of the Apex Court in the case of Comptroller and Auditor General v. K.S. Jaganathan and Anr., AIR 1987 SC 537 . 40. We have heard learned counsel for the parties having regard to the decisions relied on. Before addressing the questions, raised by learned counsel for the appellants, we find it necessary to have a look at the provisions of article 324 of the Constitution of India. For ready reference Article 324 of the Constitution of India is reproduced below : "324. We have heard learned counsel for the parties having regard to the decisions relied on. Before addressing the questions, raised by learned counsel for the appellants, we find it necessary to have a look at the provisions of article 324 of the Constitution of India. For ready reference Article 324 of the Constitution of India is reproduced below : "324. Superintendence, direction and control of elections to be vested in an Election Commission. -- (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time--to--time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. (3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. (4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and , thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1). (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine: Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1)," 41. A careful reading of article 324 of the Constitution of India shows that in matter of superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President, held under this Constitution, shall be vested in a Commission and in discharging such duty the Commission can exercise its plenary power. 42. However, when one looks at the directions in the order under challenge, he would find that such directions relate to the matters, covered by article 324 of the Constitution of India which are specifically earmarked for the Commission. In that view of the matter, it needs to be concluded that in normal circumstances, the learned Single Judge could not have rendered the directions in the order under challenge. But then, we need to know under what circumstances, the learned Single Judge had to issue the aforesaid directions. 43. In order to appreciate the controversy in this appeal better, we find it necessary to have a look at relevant part of the judgment under challenge. But then, we need to know under what circumstances, the learned Single Judge had to issue the aforesaid directions. 43. In order to appreciate the controversy in this appeal better, we find it necessary to have a look at relevant part of the judgment under challenge. For ready reference same is reproduced below :- ".........In response to the aforesaid order passed on 11.3.2011, the Chief Secretary of the State has filed an affidavit, in which it has been stated that whether persons whose cases are pending before the Foreigner's Tribunals (other than doubtful voters) are eligible to cast their votes or not, is a matter to be decided by the Election Commission of India. Significantly, in paragraph 3 of the said affidavit, it has been stated, thus ; "3. That, the State Government is of the view that since the category of 'D' voters has been in existence for several years, those 'D' voters who are found to be eligible may be allowed to cast their votes, subject to Election Commission's approval." In the aforesaid affidavit filed by the Chief Secretary, the queries raised by this court, referred to above, have not been dealt with, rather a stand has been taken that since the category of 'D' voters has been in existence for several years, they should be allowed to cast their votes, if found eligible. On perusal of the affidavit, the court has reason to believe that the State b Government is not adverse to allowing the 'D' voters and also the voters whose citizenship are in question and subjudiced before the various Foreigner's Tribunals. In this connection, the case in Review Petition No. 115/2009/WP(C) No. 464/2009) (Md. Samsul Haque & Ors. v. Member, Foreigner's Tribunal & Ors. ) may be referred to. In that case, although the petitioners involved therein had been declared to foreigners (illegal Bangladeshi migrants) within the stream of 1966-1971, requiring registration of their names with the Registering Authority and deletion of their names from the Electoral Rolls but for long 7 years, nothing was done by the jurisdictional Electoral Registration Officer. Their names were deleted only on insistence of this court in the year 2009 and in between they merrily kept d on casting their votes, on the basis of incorporation of their names in the Electoral Rolls. Their names were deleted only on insistence of this court in the year 2009 and in between they merrily kept d on casting their votes, on the basis of incorporation of their names in the Electoral Rolls. On being asked as to how that could happen, the answer was that there was some communication gap. In another case reported in (Adbul Hasim (Md) v. State of Assam and Others, 2008 (3) GLT 402), the petitioner could obtain a passport taking recourse to e forgery and at a time when the proceeding against him was pending in the Foreigner's Tribunal. In most of the cases, the Foreign nationals after invoking the writ jurisdiction against the orders passed by the Foreigner' Tribunals have done the act of vanishing, after their writ petitions have been dismissed. In this connection, f mention may be made of the cases in WP(C) No. 643/2009 (Ms. Anowara Khatun v. Union of India), WP(C) No. 1258/2009 (MRs. Aisa Bibi v. Union of India & Ors. ), WP(C) No. 1311/2009 (Nidhan Biswas v. Union of India & Ors. ), WP(C) No. 1307/2009 (Md. Khused All v. Union of India & Ors. ), WP(C) No. 190/2009 (Md. Abdul Kuddus v. State of Assam & Ors. ), WP(C) No. 698/2009 (Munindra Ch. Roy v. Union of India & Ors. ), WP(C) No. 747/09 g (Himangshu Sarkar v. State of Assam & Ors), WP(C) No. 152/09 (Eajia Khatun v. Union of India & Ors. ), WP(C) No. 464/09 (Md. Samsul Haque & Ors. v. State of Assam & Ors), WP(C) No. 1044/09 [Salema Bibi (Khatun) v. Union of India & Ors. ), WP(C) No. 80/09 (Smt. Malati Das v. Union of India & Ors. ), WP(C) No. 1334/09 (Mameza Khatun v. Union of India and Ors. ),WP(C)No. 191/09 (Upendra Roy v. Union of India), WP(C) No. 1708/08 (Samsul Hoque v. Stateof Assam & Ors. ), WP(C) No. 5497/08 (Nathu Ram Biswas v. Union of India & Ors. ), WP(C) No. 5545/08 (Gopal Ch. Das v. Union of India & Ors. ), WP(C) No. 1166/09 (Tarabhanu v. Union of India & Ors. ), WP(C) No,1045/09 (Mustt. Sahera Khatun v. Union of India & Ors. ), WP(C) No. 5542/2008 (Mustt. Hazem Khatun v. Union of India & Ors. ) and WP(C) No. 5560/2008 (Md. Jalal Uddin v. Union of India & Ors. )................... Das v. Union of India & Ors. ), WP(C) No. 1166/09 (Tarabhanu v. Union of India & Ors. ), WP(C) No,1045/09 (Mustt. Sahera Khatun v. Union of India & Ors. ), WP(C) No. 5542/2008 (Mustt. Hazem Khatun v. Union of India & Ors. ) and WP(C) No. 5560/2008 (Md. Jalal Uddin v. Union of India & Ors. )................... ...........................In the last order passed on 11.3.2011, the above quoted direction was issued requiring the Election Commission of India to find out the number of cases pending in various Foreigners Tribunals in the State of Assam and also to collect the identity of the persons whether they are shown as 'D' voters or not. Such a direction was issued to ensure that such doubtful voters do not cast their votes. Direction was also issued to ensure indication of such suspected foreigners as 'D' voters in the electoral rolls debarring them from voting. However, today, a submission has been made on behalf of the Election Commission of India as well as the State Government that in view of section 23(3) of the Representation of the People Act, 1950, it is now not possible to make any amendment, transposition or deletion of any entry under section 22 of the Act. A duty having been enjoined both on the State Government and the Union Government as well as the Election Commission of India and there being dereliction of the said duty, resulting in failure to discharge constitutional obligation, it does not lie on the mouth of the Election Commission of India and the State Government to express helplessness in the matter, falling back on the provisions of section 23 of the Act. What is required is to treat the persons whose cases are pending before the Foreigners Tribunals as 'D' voters, as has been done in case of 'D' category voteRs. If the said category can be kept as 'D' voters in the electoral rolls debarring them from casting their votes, I see no reason as to why the other category, i.e., whose cases are pending in the Foreigners Tribunals cannot be treated as 'D' voters, which would ensure that they do not cast their votes. Considering the fact that there is huge number of such voters about which mention has been made in the earlier order dated 11.3.2011, the Election Commission of India must take stern and prompt action in the matter. Considering the fact that there is huge number of such voters about which mention has been made in the earlier order dated 11.3.2011, the Election Commission of India must take stern and prompt action in the matter. As indicated in the said order, the total number of cases referred to Foreigners' Tribunals is 3,36,560 (92,867 FT Cases + 76,465 transferred IMDT cases + 1,67,228 cases of 'D' voters). From the entire approach of the authorities to such a burning issue about which detailed discussions have been made in Sarbananda Sonowal--I and II cases reported in AIR 2005 SC 2920 and (2007) 1 SCC 174 , what has transpired is that there is absolutely no endeavour to solve the problem once for all rather the same has been kept alive for the obvious reason. The stand of the State Government in such an important matter has been noted above. It has shifted the burden to the Election Commission of India but at the same time, has taken the stand that the 'D' voters whose names are in existence in the Electoral Rolls for several years, should be allowed to cast their votes. A better response was expected from the State Government in such a serious issue. If 'D' voters of both the categories are allowed to cast their votes, same will have far reaching effect in the election results, about which, it appears that those at the helm of affairs, are not at all bothered rather insist to allow them to cast their votes. It is not for nothing, the Apex Court in Sarbananda Sonowal-II (supra) observed a that there is a lack of will in the matter of ensuring that illegal migrants are sent out of the country. Not to speak of deporting the foreign nationals, they are allowed to roam around merrily conferring them all the rights of an Indian citizen including the right to cast votes. It is on that basis, Peoples' representatives are elected and they decide the destiny of the nation. It is the experience of this court mat once a reference is made to the Foreigners Tribunals and the same is answered against the foreigners, those at the helm of affairs, do not take any follow up action including the action for deleting his/her name from the electoral rolls. It is the experience of this court mat once a reference is made to the Foreigners Tribunals and the same is answered against the foreigners, those at the helm of affairs, do not take any follow up action including the action for deleting his/her name from the electoral rolls. It is because of the persistence and monitoring of this court only, in the given cases follow up action is taken and not otherwise. There is also no collaboration amongst the authorities towards achieving the ultimate goal, which is to make the State free of foreigners or at-least not to allow such foreigners to cast their votes. Their presence in the State in huge numbers with the potential of rendering the indigenous people to a minority community is no longer in any doubt." 44. So situated, let us consider the scope and ambit of the power, conferred on the writ court under the article 226 of the Constitution of India. It needs to be mentioned here that unlike in England, the writ court in India exercise plenary power in matter of enforcement of fundamental rights and other ancillary rights. However, its only limitations are self imposed having regard to the fact that unlimited e authority always requires the authority so favored with unlimited power to exercise such power with great care and caution. 45. The decision in Dawarka Nath (supra) makes such a position very very clear. The relevant part of the judgment is reproduced below : , "5. We shall first take the preliminary objection, for if we maintain it, no other question will arise for consideration. Article 226 of the Constitution reads: "... [E]very High Court shall have power, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, g orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose." 46. In Comptroller and Auditor General of India (supra), hon'ble Apex Court after surveying various decisions on the point of power of the High h Court conferred under article 226 of the Constitution of India including the decision in Dawarka Nath (supra) expressed very similar view. In Comptroller and Auditor General of India (supra), hon'ble Apex Court after surveying various decisions on the point of power of the High h Court conferred under article 226 of the Constitution of India including the decision in Dawarka Nath (supra) expressed very similar view. For ready reference, relevant part of the same is also reproduced below : "The first contention urged by learned counsel for the appellants was that the Division Bench of the High Court could not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission both with respect to the order of the Division Bench and the purpose and scope of the writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus, was the relief prayed for by the respondents in their writ petition. What the Division Bench did was to issue directions to the appellants in the exercise of its jurisdiction under article 226 of the Constitution. Under article 226 of the Constitution, every High Court has the power to issue to any person or authority, including in appropriate cases, any Government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari, or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath, Hindu Undivided Family v. Income-tax Officer, Special Circle, Kanpur, and Another, [1965] 3 SCR 536,540 this court pointed out that article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country." In Hochtief Gammon v. State ofOrissa & Ors. , (1976) 1 SCR 667 , 676 this court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the Government or its officeRs. Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions, the High Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such directions. Almost a hundred and thirty years ago Martin, By in Mayor of Rochester v. Regina, (1858) E.B. & E. 1024,1032,1034 said : "But, were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the court of Queen's Bench. That court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy, and justice and good government require that there ought to be one for the execution of the common law or the provisions of a statute : Comyn's Digest, Mandamus (A)...... Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable." The principle enunciated in the above case was approved and followed in the King v. the Revising Barrister for the Borough of Hanky, (1912) 3 KB 518, 526-9, 531. In Hochtief Gammon's case this court pointed out (at page 675) that the powers of the courts in relation to the orders of the Government or an officer of the Government who has been conferred any power under any statute, which apparently confer on them absolute discretionary powers, are not confined to cases where such power is exercised or refused to be exercised on irrelevant considerations or on erroneous ground or mala fide, and in such a case a party would be entitled to move the High Court for a writ of mandamus. In Pad field and Others v. Minister of Agriculture, Fisheries and Food b and Others, 1968 AC 997 the House of Lords held that where Parliament had conferred a discretion on the Minister of Agriculture, Fisheries and Food, to appoint a committee of investigation so that it could be used to promote the policy and objects of the Agricultural Marketing Act, 1958, which were to be determined by the construction of the Act which was a matter of law for the court and though there might be reasons which would justify the Minister in refusing to refer a complaint to a committee of investigation, the Minister's discretion was not unlimited and if it appeared that the effect of his refusal to appoint a committee of investigation was to frustrate the policy of the Act, the court was entitled to interfere by an order of mandamus. In Halsbury's Laws of England, 4th edn., Volume I, Paragraph 89, it is stated that the purpose d of an order of mandamus "is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual." There is, thus, no doubt that the High Courts in India exercising their jurisdiction under article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under article g 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the , Government or the public authority should have passed or given had it properly and lawfully exercised its discretion." 47. In Union of India & Ors. v. R. Reddappa and Another, (1993) 4 SCC 269 , while deliberating on the power of High Court under 226 of the Constitution of India, hon'ble Apex Court held as follows : "5. More than a decade has gone by since these employees were dismissed for participating in strike called by the Union recognized by the Railways. But end has not reached. Barring appellate and revisional authority whose discretion too was attempted to be curtailed by issuing circular no court or tribunal has found the orders to be well founded on merits. True the jurisdiction exercised by the High Court under article 226 or the tribunal is not as wide as it is in appeal or revision but once the court is satisfied of injustice or arbitrariness then the restriction, self imposed or statutory, stands removed and no rule or technicality on exercise of power, can stand in way of rendering justice. We are not impressed by the vehement submission of the learned Additional Solicitor General that the CAT, Hyderabad exceeded it jurisdiction in recording the finding that there was no material in support of the finding that it was not reasonably practicable to hold an enquiry. The jurisdiction to exercise the power under rule 14(2) was dependent on existence of this primary fact. If there was no material on which any reasonable person could have come to the conclusion as is envisaged in the rule then the action was vitiated due to erroneous assumption of jurisdictional fact, therefore, the tribunal was well within its jurisdiction to set aside the orders on this ground. If there was no material on which any reasonable person could have come to the conclusion as is envisaged in the rule then the action was vitiated due to erroneous assumption of jurisdictional fact, therefore, the tribunal was well within its jurisdiction to set aside the orders on this ground. An illegal order passed by the disciplinary authority does not assume the character of legality only because it has been affirmed in appeal or revision unless the higher authority is found to have applied its mind to the basic infirmities in the order. Mere reiteration or repetition instead of adding strength to the order renders it weaker and more vulnerable as even the higher authority constituted under the Act or the rules for proper appraisal shall be deemed to have failed in discharge of its statutory obligation." 48. Coming back to our case, we have found that during the course of proceeding in WP(C) No. 1334/2009, learned Single Judge had noticed that names of a large number of voters (number of such person being 3, 13,043) whose citizenship status were in doubt, were forwarded to the Tribunals to have their citizenship status declared by such Tribunals. Since their citizenship status were in doubt, the Commission under the notification dated 5.1.1998, had also ordered the Electoral Officers in Assam to put the word 'D' before their names in the voters lists so that they could be prevented from casting their votes till their citizenship status are cleared by the Tribunals. Such action on the part of the Commission finds approval from this court which has attained finality in the mean time. 49. But then, learned Single Judge also noticed that in respect of a large number of persons (number of such persons, as on 31.12.2010, being 406, 451,) who are very similarly situated with the voters covered by notification dated 5.1.1998, no action has been taken by the Commission allowing such people to exercise their rights of franchise in elections after elections although similarly situated persons, who were covered by notification dated 5.1.1998, have been debarred from exercising their right of franchise. 50. But then, the lapses on the part of the various constituents of the State did not stop there. 50. But then, the lapses on the part of the various constituents of the State did not stop there. It travelled to an amazing extent since it had emerged during the course of proceeding aforesaid that though the Tribunals had declared a large number of persons who most illegally had their names included in the voters lists of various constituencies, yet, the names of those persons, who were so declared as foreigners, had never been deleted from the voters' lists. 51. What is worse, in many cases, those persons who were declared foreigners by Tribunals even keep on casting their votes in elections after elections taking advantage of their names not being deleted from the voters' lists. Equally intriguing, before being deported to the country of their origin, a huge number of persons who were so declared as foreigners by the Tribunals had disappeared forever from the radar of the State. 52. All these speak loud and clear that most of these exercises in the name of detection/deletion/deportation of foreigners for which astronomical amount have to be spent from the State exchequer which could have been used for uplift of umpteen numbers of people living far below the poverty line is nothing but a huge joke on the most fundamental document of the country, same being the Constitution of India. This is unfathomably painful and inexcusable under any circumstance. 53. Such a state-of affairs also speaks in volume that various authorities, who are entrusted under the Constitution with duties of enormous importance and significance had slept over some matters of enormous constitutional importance over a long period of time thereby allowing hundreds of thousands of foreigners not only to stay in this country but also to cast their votes in different elections in very large numbers leading to periodic clashes with the genuine Indian citizens causing enormous loss and destructions in terms of lives and properties which, in turn, allowed the security of the country to be compromised at a price which one shudder to think. 54. The problems arising out of influx of illegal migrants to the country was noticed with enormous concerned by hon'ble Apex Court of the country in Sarbananda Sonuwal (supra) which was again echoed in the judgment of the Apex Court in Assam Samilita Mahasangha (supra). 55. 54. The problems arising out of influx of illegal migrants to the country was noticed with enormous concerned by hon'ble Apex Court of the country in Sarbananda Sonuwal (supra) which was again echoed in the judgment of the Apex Court in Assam Samilita Mahasangha (supra). 55. The relevant part of the judgment in Assam Samilita Mahasangha (supra) is reproduced below :- "On 8th of November, 1998, Lieutenant General S.K. Sinha, the then Government of Assam, submitted an extensive report to the then President of India on the grave threat posed by the influx of people from Bangladesh of Assam. He said: "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 empathetically stressed. No misconceived and mistaken notions of secularism should be allowed to come in the way of doing so. As a result of population movement from Bangladesh, the specter looms large of the indigenous people of Assam being reduced in 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. The silent and invidious demographic invasion of Assam may result in the loss of the geo-strategically vital districts of lower Assam. The influx of 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 the 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 severe 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". 14. It was in this backdrop that a writ petition being WP No. 131 of 2000 was filed by Sarbananda Sonowal assailing the Constitutional validity of "The Illegal Migrants (Determination by Tribunal Act, 1983 and the rules made there under. 15. 14. It was in this backdrop that a writ petition being WP No. 131 of 2000 was filed by Sarbananda Sonowal assailing the Constitutional validity of "The Illegal Migrants (Determination by Tribunal Act, 1983 and the rules made there under. 15. In a judgment reported in (2005) 5 SCC 665 , this court referred to the Assam Accord and to the huge influx of illegal migrants into the State of Assam and came to the conclusion that the 1983 Act and the rules made thereunder operated in the reverse direction i.e., instead of seeing that illegal migrants are deported, it did the opposite by placing the burden of proof on the State to prove that a person happens to be an illegal migrant.. This court went on to hold that article 355 of the Constitution had been violated, inasmuch as the Union had failed to protect the State of Assam against the external aggression and internal disturbance caused by the huge influx of illegal migrants from Bangladesh to Assam and went on to hold the 1983 Act to be violative of article 14 as well. Inasmuch as this Act was struck down, the Immigrants (Expulsion from Assam) Act 1950 together with the Foreigners Act and the Foreigners Tribunal Order of 1964 were now to be the tools in the hands of Government to do the job of detecting illegal migrants who were then to be deported. 16. On 14th July, 2004 in response to an unstarred question pertaining to deportation of illegal Bangladesh migrants, the Minister of State, Home Affairs, submitted a statement to Parliament indicating therein that the estimated number of illegal Bangladeshi immigrants into India as on 31st December, 2001 was 1.20 crores, out of which 50 lakhs were in Assam. 17. Given the magnitude of the problem, a Foreigners (Tribunals for Assam) Order of 2006 was promulgated which was again struck down being found to be unreasonable and arbitrary and which instead of expeditiously discovering illegal migrants and deporting them, again did the opposite. It was in (2007) 1 SCC 174 , in the second Sonowal writ petition, that the Supreme Court struck down this order. 18. In the year 2012 and in 2014 large scale riots took place in Assam resulting in the deaths of a large number of persons. It is in. this background that the present writ petitions have been filed." 56. 18. In the year 2012 and in 2014 large scale riots took place in Assam resulting in the deaths of a large number of persons. It is in. this background that the present writ petitions have been filed." 56. When one considers the order under challenge in the scenario aforesaid keeping in mind the law laid down in Dawarka Nath (supra), Comptroller and Auditor General of India (supra) and in Union of India & Ors. v. R. Reddappa and Another (supra), he would find that though, under normal circumstances, the learned Single Judge could not have rendered the directions in the order in question but having passed the order under challenge in facts and circumstances, narrated above, the learned Single Judge has not only discharged his constitutional obligations commendably but also required various authorities including the constitutional authority like the Election Commission of India to wake up from their deep slumber so as to discharge their statutory/constitutional obligations in order to prevent the nation from sleeping into anarchy and chaos. 57. In that view of the matter, one cannot find fault with the learned Single Judge in issuing the order under challenge, more so, when the Election Commission, on its own, ought to have issued such an order since the order under challenge, in fact, very similar in tone, tenure and contours with the notification dated 5.1.1998 which has already got the approval of the highest judiciary of the State and when the Election Commission instead of challenging the order aforementioned chose to comply with the same gracefully. 58. We have also found that Mr. Nagendra Rai, learned senior counsel further submits that the order in question could not have been passed in a normal writ proceeding since the matter under consideration had enormous public importance and, therefore, such a matter could have been dealt with by a Division Bench of this High Court in terms of rule 7 of Rules of 2011. 59. Since the learned Single Judge instead of referring the matter to the hon'ble Chief Justice for constituting a Division Bench to hear such a matter, was pleased to hear such matter of enormous public importance and was pleased to pass the aforesaid order, on this count alone, the order in question is liable to be quashed and set aside. 60. Since the learned Single Judge instead of referring the matter to the hon'ble Chief Justice for constituting a Division Bench to hear such a matter, was pleased to hear such matter of enormous public importance and was pleased to pass the aforesaid order, on this count alone, the order in question is liable to be quashed and set aside. 60. We have heard the learned counsel for the parties on this point as well having regard to the materials on record. There is no dispute over the fact that the matters, covered by the order under challenge, bear enormous public importance. However, what have emerged during the course of the proceeding in question (which we have narrated in detail hereinbefore) is too shocking, too appalling and too awful to say the least which needs no further reinstatements here. 61. When one considers the order under challenge in the circumstances aforesaid, he would find that learned Single Judge was right in taking up a matter of enormous public importance on his own instead of sending the same to a Division Bench on technical ground. Being so, in our considered opinion, the second ground aforesaid is also found to be unequal to the task, assigned. 62. Insofar third ground is concerned, we have found that it is true that in WP(C) No. 1334/2009, the petitioner had questioned the correctness of the judgment under which she was adjudged to be a foreigner but then one must not be oblivious to the fact that during the course of proceeding, she started defaulting in appearing before the court and in the course of such proceeding, it has come to the notice of learned Single Judge that a large number of persons who were declared foreigners had gone missing soon after they were adjudged as foreigneRs. 63. Equally important, a large number of persons who were so declared foreigners and whose names were ordered to be deleted from the respective voters' lists continue to cast their votes in election after election. In the face of such revelations, learned Single Judge had passed the order in question. Situation being such, it cannot be said that the matter in dispute in the proceeding in question remains confined only to the question of adjudging the petitioner as foreigner. 64. Rather, it started having contours, colors and configurations which have far reaching consequences and implications. In the face of such revelations, learned Single Judge had passed the order in question. Situation being such, it cannot be said that the matter in dispute in the proceeding in question remains confined only to the question of adjudging the petitioner as foreigner. 64. Rather, it started having contours, colors and configurations which have far reaching consequences and implications. In that view of the matter, it is not right to allege that in the proceeding in question, learned Single Judge ought to have confined himself to question if the petitioner therein was a foreigner or not. That being so, the last ground of attack also slips into oblivion without leaving any scar on the order under challenge. 65. We have also found that learned counsel for appellant submits that in view of section 6A of the Act of 1985, not to speak of learned Single Judge of this High Court, even the Election Commission of India could not have issued the directions in the order under challenge. We have found that learned counsel for Election Commission has addressed such a contention assigning good reason to impress upon the court that such argument from the side of appellants does not hold any water. 66. We have considered such submissions and found that reasons, assigned by the learned counsel for the Election Commission urging this court to reject such a contention from the side of appellant, are quite forceful and same, therefore, needs to be accepted. The reasons, so assigned need not be restated once again here. Suffice it to say that decision in HRA Choudhury (supra) which still holds the field is a sufficient answer to the said contention raised by learned counsel for the appellants. 67. We have considered the decisions, relied on by the appellants and found that those decisions were rendered in the facts and circumstances which are materially different from the facts and circumstances involved in the present appeal. Being so, those decisions, in our considered opinion, are found to be inapplicable to the controversy in the present appeal. 68. In the result, the appeal, being found devoid of merit, is dismissed. 69. This court while admitting the appeal stayed the operation of the impugned order till the disposal of the appeal. With the dismissal of the present appeal, said interim order too stands vacated. 70. 68. In the result, the appeal, being found devoid of merit, is dismissed. 69. This court while admitting the appeal stayed the operation of the impugned order till the disposal of the appeal. With the dismissal of the present appeal, said interim order too stands vacated. 70. The Election Commission of India and other respondents in WP(C) No. 1334/2009 are directed to implement the directions in the order under challenge in letter and spirit. 71. The parties are left to bear their own costs.