Holding

The Foreigners (Tribunal) Amendment Order, 2006 is unconstitutional, violative of Articles 14 and 355, and is struck down.

Summary

The petitioners challenged the Foreigners (Tribunal) Amendment Order, 2006 which made the 1964 Foreigners (Tribunals) Order inapplicable to Assam, arguing that it contravened Articles 14, 21 and 355 of the Constitution and sought to nullify the Supreme Court's earlier judgment in Sarbananda Sonowal v. Union of India (2005). The Court examined whether a subordinate legislation could override a statutory provision and a binding judicial decree, and whether the amendment denied a preliminary inquiry and violated natural‑justice principles. It held that the 2006 Order was arbitrary, discriminatory and ultra‑violus, as it attempted to defeat the earlier mandate and lacked any factual justification. Consequently, the amendment was struck down, the writ petitions were allowed, and the Union was directed to implement the directions of the 2005 decision within four months.

Issues considered

Whether the Foreigners (Tribunal) Amendment Order, 2006, which excludes Assam from the 1964 Order, violates Articles 14, 21 and 355 of the Constitution.
Whether a subordinate legislation can override the Supreme Court’s earlier judgment and the parent Foreigners Act, 1946.
Whether the amendment deprives the Central Government of the duty to make a preliminary inquiry before referring matters to a Tribunal.
Whether the 2006 Order infringes the principles of natural justice and procedural fairness.
Whether the amendment is ultra‑vires the Foreigners Act, 1946 and the Illegal Migrants (Determination by Tribunals) Act, 1983.

Legislation cited

Subjects

Illegal migrationForeigners ActArticle 14Article 355Subordinate legislationTribunal jurisdictionNatural justiceBurden of proofConstitutional validityAssam

Judgment

....

SARBANANDASONOWAL A'
v.
UNION OF INDIA

DECEMBER 5, 2006

[S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.] B

Constitution of India-Articles 14, 21and355-Foreigners Act, 1946-
Citizenship Act, 1955-Jllegal Migrants (Determination by Tribunals) Act,
1983 & Rules of 1984-Foreigners (Tribunals) Order, 1964-Foreigners C
(Tribunal) Amendment Order, 2006-Supreme Court earlier struck down 1983
Act as unconstitutional and directed transfer of cases pending in Tribunals
under the Act to the Tribunals constituted under 1964 Order-2006 Amendment
Order introduced to amend 1964 Order making it inapplicable to State of
Assam-Writ Petitions challenging the validity of the 2006 Amendment Order
before Supreme Court-Central Government justifying the amendment D
contending that all complaints now would be compulsorily referred to Tribunal
without making preliminary enquiry-Correctness of-Held, 2006 Amendment
Order is violative of Articles 14 and 355 of the Constitution-Amendment
Order is a subordinate legislation and hence it cannot violate a Central Act
and nullify the directions of this Court by making 1964 Order inapplicable to E
the State-amendment Order does not debar authorities to make preliminary
inquiry of a complaint before reference to the Tribunal-No facts/reasons
given justifying the amendment, hence Amendment Order struck down.

Petitioner filed a Writ Petition before this Court against Union of India
and others for declaring some of the provisions of the Illegal Migrants F
(Determination by Tribunals) Act, 1983 as constitutional, null and void and a
consequent declaration that the Foreigners Act, 1946 and the Rules made
thereunder would apply to the State of Assam. This Court in, Sarbananda
Sonowal v. Union ofIndia & Ors., (2005) 5 SCC 665, allowed the Writ Petition
and struck down the provisions of the 1983 Act as being unconstitutional.
This Court directed that the Tribunals and Appellate Tribunals constituted G
under the Act shall cease to function; and that all cases pending before the
Tribunals under the Act shall stand transferred to the Tribunals constituted
under the Foreigners (Tribunals) Order, 1964 and shall be decided in the

167 H
168 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

'A manner provided thereurider. :tliis Court held that the illegal migrants coming
into the State of Assam cannot be treated differently from those who migrated
to other parts of the country lfaving regard to'ttie provisions of he Citizenship
Act, 1955 and the 1964 Order.
· i· 1 I -'

The Central Government amended the provisions of the 1964 Order
B by bringing Foreigners '(Triliitrial),Amendfuent.Oriler;r20061making the
1964 Order inapplicable to the State of Assam.

The !petitioner, \in'the .present Writ .Petitions, contended that the
Central Governnient,"bY way'ofa subordihate.legislation by bringing the
Amendment Order; 2006, sought to 'nullify;the directions of this Coud in
C its earlier decision to get·all .pending <easesifetating'to alleged immigrants
decided by the t'ribunal mider the 1964 Order; an<I .that the respondent,
instead-of obeying the'mandamus·of this ;Gourt;·given in the interests of
national security and•to preserve demographic'· balance and implementing
the 1964 Order in·Assam; chose.to make-the•l964.0rder inapplicable to
D the State.·. , •
\. _l
1' .• 1~. \.;:

.The ·respo_nd_ents conte_nded that the,provisi.on_s ,of..th~ ~Q06 Order
had been brought)nto exjstence only with a view to given effect to ~he
directions ofthis·Court;,that the amendment.was !Dade to the 1964 Order
on the apprehensions ofltrouble/victimization ~f genui_ne. citizens aMh~
E hands of the specified authori~ies in the-nam~, of d~te~tio_n and depc:>.r_:tation
of forf:!igners was expressed; that suc!t a-,pr<wi~i_on\.had ..to be brought}_i;t
due to higher1,degree.of.in_cu_rsion of_ill_ega_l,~igra11~~ i_nto Assa~ when
compared to other States; that, under the 2006 Order, the Central
Government sliouldcom-ptilsorily;refer a(niatter.to:the TiibunaJ:-which was
F earlier- ·n·ot ·ma'nClaforyi under. the 11964 '0rder;· that the burden of• proof
urider 'the 1946lAd 1 is~notrdiluted;:.ttiat the provisions of1Article 21ior.the
Constittition;tJeiiigiapplicable to:aiperson 'Wh0-had1already:.set his :feet in
India,· h-e would :be entitled to:claitn ~compliante of the:pririciples of natural
justice 'which ·,niay .not ibe;hece'ss·1i:ry :in:ifespect of a person. who has ;yet. to
enter-thellndian1terrifory.1JI l;lilj 'rl!h '!l'•i"'"" ...1. ""'' J, 11, ' I

G . , (.t~h.4~.'f~ r: .ourl•sf ~lbtL0!'~1:! bu~~;!r..fHH~l'···:t 'd'fj 1g~.1 u1 -•. ,l;1·1 ,.•1r J ~f·
Allowing,tll~ W.rJt Petitions,,(he_,C9!'!t;t o) vh, 11, ,', 1 JI ·•' 1 • ,;.
· .1 l · ,, n , t• ·-:.riv•h, I ult "' h, 11 ,i- ni 1J hrrnl~ lluz!, nl •:IJ ·r;i,nu ,, , r :.•11 •
.. _.H~~R~iP:, ~2l~~J.!~ ~.~~~?~~J?,~~~~i.~~,,t~.e,~p~~~~~~Wi;o-~s.,o.r.tr~~~l~(
victimization of genuine citizens at the hands of the specified authorities in
the name of detection and deportation of foreigners as contended by the Central
H
SARBANANDA SONOWAL v. U.O.I. 169

Government. Nothing was also shown to come to a conclusion that the 1964 A
Order worked harshly on anyone who was sought to be proceeded against
under the Foreigners Act, 1946 and under the 1964 Order. No particular
reason is given for making a departure from the existing procedure. No facts
or details are furnished in supp'ort. Ttie peculiar situation other than what is
noticed by this Court in it~ earlier decision is not explained. B
1174-G; 175-D, F, G, HJ

Sarbananda Sonowa/ v. Union of India & Ors., {2005] 5 SCC 665,
referred to.

1.2. The making of the 1964 Order inoperative to the State is
discriminatory and is violative of Article 14 of the Constitution of India. C
No reasons are given to justify such exclusion. The notification making
the 1964 Order inapplicable to the State by the 2006 Order is unreasonable
and arbitrary, violating Article 14 of the Constitution of India. In making
the 1964 Order inapplicable to the State of Assam alone, when the other
States having boundaries with Bangladesh, are still expected to apply that D
Order, the respondents have acted arbitrarily and have not kept in mind
the interests of the country. No rational reason has been put forward to
justify such a separate treatment for the State. Therefore, the 2006 Order
is violative of Article 355 and Article 14 of the Constitution. (178-B, q

1.3. The Central Government or the authorities specified in this behalf, E
by reason of the provisions of the 2006 Order, are not precluded from making
an investigation or inquiry into a complaint received. A preliminary inquiry,
which may riot be as intrusive was necessary in terms of the 1964 Order,
must be held so as to form an opinion as to whether there is any truth or
substance in the allegations made in the complaint. 1185-A, B, C]
F
1.4. By .reason of the 2006 Order, the requirement to arrive at a
subjective satisfaction on the part of the- Central Government cannot be
said to have been taken away in view of the fact that expressions "by
order" and "refer the question" still exist in the statute and thus
appropriate meaning thereto should be assigned. Before a statutory G
authority passes an order or makes a reference to a Tribunal, a satisfaction
iflo be arrived at. Whenever such a satisfaction is to be arrived at, which
must be reflected in the order of reference, the same may be subject to
the principles of judicial review. [185-E-F)

The Barium Chemicals Ltd. & Anr. v. Sh. A.J. Rana & Ors., [1972] 1 H
170 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.

A SCC 240; Kaiser-I-Hind (P) Ltd v. National Textile Corpn. (Maharashtra
North) Ltd, [2002) 8 SCC 182 and State Anti-Corruption Branch), Govt. of
NCTof Delhi & Anr. v. Dr. RC.Anand & Anr., (200414 SCC 615, referred to.

1.5. While interpreting the provisions of the Act, the changes made in
the expression will have to be taken into consideration; but, while doing so,
B the burden of the Central Government cannot be thrown on the Tribunal The
Central Government may not retain discretion in its own hands but by reason
thereof it cannot also refuse to perform its duties to make investi6ation in
the matter for the purpose of rendition of proper assistance to the Tribunal
for determining the question. The duty to protect the State and the nation
C from aggression rests with the Central Government. Even assuming that is
imperative on the part of the Central government to refer the question without
making an investigation, the Order does not debar the authority to place its
view point while referring a matter in the Tribunal. (187-G; 188-A, B, q

1.6. If a complaint is made and the Central Government merely forwards
D it, there will be no material before the Tribunal on the basis of which it would
be able to determine whether sufficient ground for proceeding with the matter
exists or not. If on the basis of such a complaint, the Tribunal comes to a
conclusion that there is no sufficient ground, it will have no other option having
regard to the phraseology used in 2006 Order to dismiss the same. But, if
the Tribunal is formulating the ground so as to er.able it to communicate the
E same to be alleged foreigner, the Tribunal would be able to proceed
methodologically. (188-D, EJ

I. 7. The Tribunal would have to apply its mind to the materials on
record to enable itself to arrive at a conclusion as to whether there exists
F any sufficient ground for proceeding in the matter. For the said purpose,
not only a satisfaction is required to be arrived at by the Tribunal but
the basic facts in respect thereof are required to be established. No
criterion has been laid down therefor. At that juncture, the Tribunal may
not have any assistance ofany other authority. Ex-facie, the Tribunal would
have to take the entire burden upon itself. (188-F, GI·
G
1.8. The Principle of Natural Justice is required to be complied with
before a Tribunal passes an order of deportation. The 1946 Act and the Orders
framed thereunder contain inbuilt procedure. The procedures laid down therein
are fair and unreasonable. Only because, the burden of proo.r is on the
procedure, it same by itself would pot mean that the procedure is ultra vires
H
SARBANANDA SONOWAL v. U.0.1. 171
the provisions of Article 21 of the Constitution of India. Article 21 would not A
be offended if the procedure is fair and unreasonable. (189-G-H; 190-A)

1.9. The 2006 Order is a subordinate legislation. It cannot violate a
substantive law made by the Parliament. The parent Act remains in force
and applicable. It is not open to the authority concerned to nullify the
directions of this Court by way of subordinate legislation by making 1964 B
Order inapplicable to the State of Assam. (190-F)

Kera/a Samsthana Chethu Thozhila/i Union v. State of Kera/a & Ors.,
(2006) 3 SCALE 534; Ashok Lanka & Anr. v. Rishi Dixit & Ors., (2005) 5
SCC 598; Bombay Dyeing & Mfg. Co. Ltd v. Bombay Environment Action C
Group & Ors., (2006) 3 SCALE 1 and Vasu Dev Singh & Ors. v. Union of
India & Ors., (2006) 11 SCALE 108, referred to.

• R. v. Oliver, [19431 2 All ER 800 and Williams v. Russel, (1993) 149
LT 190, referred to.

Craies On Statute Law, 7th Edition, referred to.
D

1.10. A person, who claims himself to be a citizen of India in terms of
the Constitution of India or the Citizenship Act, is entitled to all safeguards
both substantive and procedural provided for therein to show that he is a
citizen. Having regard to the fact that the Tribunal in the notice to be sent to E
the proceeded is required to set out the main grounds; evidently the primary
onus in relation thereto would be on the State. However, once the Tribunal is
satisfied itself about the existence of grounds, the burden of proof would be
upon the proceeded. Only because burden of proof under certain situations is
placed on the accused, the same would not mean that he is deprived of the
procedural safeguard. (193-B; 194-F) F
Hiten Pal Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 and Anil
Rishi v. Gurbaksh Singh. (2005) S SCALE 153. referred to.

1.11. A strict implementation of the directions of this Court issued
in Sarbananda Sonowal v. Union of India & Ors., (2005) 5 SCC 665 so as G
to ensure that illegal immigrants are sent out of the country, while inspite
of lapse of time, the Tribunals under the 1964 Order had not been
strengthened. There is a lack of will in the matter of ensuring that illegal
immigrants are sent out of the country. The.2006 Order has been issued
just as a cover up for non-implementation ofthe directions of this Court. The
H
172 ·SUPREME COURT REPORTS {2006] SUPP. 10 S.C.R.

A 2006 Order.does:not serve the purpose~ought to be achieved;by the·1946:Act
or the Citizenship 'Act, and the obligations cast on. the Central Government to
protect the nation in terms of Article 355 of the Constitution of India. The
20060rde'fiS'therefore'found fo be unreasonable and isstied:in·an arbitrary
exerdse'of power.'[l95;G;•196.:A, B;'CJ'''': ' 1 .i: · • ,,r ~ •• ,.,,· · ,;,'""II'
. . ~u ~~-Hui,. ·d •?:..ir!11:nu •lif1 l:J 1 ~;•:r ·,, -~·t· .-, . •l ~ .~ .~r ~ _ ~~:··· ui1·~
1

B i.w 1GIVlLORIGINAc-JURISDICTION: Writ·Petition (Civil) No. 117 of2006.
; ' j,. • • ( .... _;

(Under Article 32 of the Constitution of India.)
,:~;~1~··~-·";._, \.,, /, ..• -·1. -~- ':i.

;. I·~tAs~ok R Desai, Prakeek Jalan, Niti Di~it and ~uby.Singh :A~uj~ for ,t~~.
P~titione.r. ,, . •. ~ _.,,
0 · ~ r"t \ ' r • ' t ' : { .._ ,.,- · . t '.

T.S. Murthy, Sushm~ Suri an'Ci C~inp1~ny' Prad~p ~harm~ ·tor the
Respondent.
~ . . ~. ~ '· ·~~). . I'.·-.
11fPJ. . ) . ' ~ ~ PI ." l ,! ' ..

K.K. Veniigopal, Riku Sarrna and Momta Devi Oniom
. - for
. .the
. State of ~. -~ ~ ',; ~

Assam.
... D ~ I i,j 'l I ' J • ' ~•
The Judgment of the· Court was delivered by
- -''~• • " ~p :.!_~~j !••I f'\,L / i r. , : -'· • •, r~1,,' • ·i' ·«' :, i

. S~B. ~INH~, J .. 1.. The yalidity of two pie~.es of sub.ordinate legislat!on,
·;;:i4iJA~~r--.• ~1(~ {);. p·•t."•J n.·_, ..r~ ~ n •• ;'h ·- ' .. • J·''J "t. ~ •.•tlij.
• u~ ... It~· •.• ,,, ''l

one. aniendmg the Foreigners (Tribunal) Order, 1964 and the other, the,
i;. ~i ·u1 i.H:~; I ·~ .... ·'!.~I.-: tl~ U·' · _p, pi, ~?., • 1~ l~·."'! .. f~ tJ,;''-"1 •''·..: ·,. ,, • 1.,-'"?11:. ,.f?ff:

H d~~fl!~:;!~~11rt~tl:v~l1l~~
1
_!" .Ju•
~t,u:r·v, ...
t!~~~1h~rJ~~~1ft~~d~:1:~J {!~~:;,·JJLi;~e:·ii~~~~
i.~~iru,.,..,., .Ji~*} ••• ·· 1o •• ~ 1 ~ ; •·• 14·i .. 't; ! i · •• , • '. - -....

fl~ei~ 1Pu~~~rj A,~i~;~~.Pl .~f.},~~ I Col}~titu~io~ of' F~d~~ by} th~; pe~ition!!~~·,' .•' '
"'1 -' 1 2~'S-arb'anarida"S3iio~al filed WP (C) No! 131 of2000 und~r'ArtiCie·j2
1

of tile'icoH~iiil.iti3iPof iiiaia'againstu'nion' of 1riaia anC! oihefs for'decfarfog' 1 1

so'thd 'of tile'1 prclvisi6~s 'of the Illegal Migrantf'(Det~nninatioit"by' Tribi'.irials):
f1 Act, I 983 (for short "the IMDT Act") as' u~coristihltional, n'ull 1and· vdld and 1
a consequent declaration1that the Foi:eigners,Act, 1946 (for-short 'the· 1946
Act') and the Rules made.thereunder .would apply to th~ ,State of Assam. The
pleas raised in the said writ petition found favour with a 3-Judge Bench of
ttiis,Cou·it,'in ..the :(lecision re·potted ,in [2005)-5 SCC 665. The said •deCision
io
G> is 1hereiilafter referre"d ;as Sonowal I. It was directed therein: .
~· 'ft . .·), :., , ........ l • :•' I '., ..
1 ~_.1 i"84."ln·.view of, the discussion made .abovt',!, the writ.petition suc~eeds
k·ni!• andris·allowed1with1the;following directions:., . , • .. ·. !lh.,
b::~-11-f"' .-;;~~,rf .r·;d .-..;b •. _i ~iiu"' 'i ~ • ,F ~\~,c i ~J, ;,, ·., ! •· ... 1•~•!J1,
'.>.1 r T"\! n :(D~·"'Q}e,p~9v!~io,~,s ..o.f th~ Hlegal ¥~gr~pt_s (D~~e~in~ti~n- ~~;
SARBANANDA SONOWAL v. U.0.1. [S.B. SINHA, J.] 173 ·
Tribunals) Act, 1983 and the Illegal Migrants (Determination by A
Tribunals) Rules, 1984 are declared to be ultra vires the Constitution
and are struck down.

(2) The Tribunals and the Appellate Tribunals constituted under
the Illegal Migrants (Determination by Tribunals) Act, 1983 shall B
cease to function.

(3) All cases pending before the Tribunals under the Illegal
Migrants (Determination by Tribunals) Act, 1983 shall stand
transferred to the Tribunals constituted under the Foreigners (Tribunals)
Order, 1964 and shall be decided in the manner provided in the C
1
Foreigners Act, the Rules made thereunder and the procedure
prescribed under the Foreigners (Tribunals) Order, 1964.

(4) It will be open to the authorities to initiate fresh proceedings
under the Foreigners Act against all such persons w~ose. cases wer,e
not referred to the Tribunals by the competent authority whether on O
account of the recommendation of the Screening Committee or any
other reason whatsoever.

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

(6) The respondents are directed to constitute sufficient number:
Ei
of Tribunals under the Foreigners (Tribunals) Order, 1964 to
effectively deal with cases of foreigners, who have "illegally come
from Bangladesh or are illegally residing in Assam."

The Court while issuing the aforementioned .directions considered the. F,
provisions of the IMDT Act in great detail vis-a-vis, the duties and functions •
of the Central Government and other States in terms of Article 355 of the
Constitution of India and the problem of illegal migration of citizens of
Bangladesh inter alia into the State of Assam and the threat posed by it to
the security of the nation.
G' )
3. This Court opined that there was absolutely no reason why the
illegal migrants coming into the State of Assam should be treated differently
from those who had migrated to the other parts of the country having regard
to the provisions of the Citizenship Act, 1955 and the Foreigners (Tribunals)
Order 1964 (for short "the 1964 Order").

4. Subsequent to the said. decision, instead of implementing the
174 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A directions therein, the Central Government in exercise of its power under
Section 3 of the 1946 Act made an Order known as "the Foreigners (Tribunal)
Amendment Order, 2006" (for short "the 2006 Order''), which was published
in the Official Gazette dated I 0th February, 2006. On 10th February, 2006, the
Central Government amended the 1964 Order principally making the same
B inapplicable to the State of Assam. Clause 2 of the said Order reads thus:

"In the Foreigners (Tribunal) Order, 1964:-

(a) paragraph 1 shall be renumbered as sub-paragraph (I) thereof
and after sub-paragraph (1) as so renumbered the following sub-
paragraph shall be inserted, namely:-
c "(2) This Order shall apply to the whole of India except the State
of Assam."

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

5. Instead of obeying the mandamus issued by this Court essentially in
E the interests of national security and to preserve the demographic balance of
a part of India, that is Bharat, and implementing the 1964 Order in Assam
in letter and spirit, the Authorities that be, have chosen to make the 1964
Order itself inapplicable to Assam. Whether the authority that should be
interested in the welfare of the nation, its security and integrity, can do so in
the light of the facts noticed and relied on in Sonowal I is the question? In
F the reply filed on behalf of the Union of India, after stating that some steps
have been taken to implement the directions of this Court in the earlier writ
petition, it is stated:

"In the meantime, Representations were received by the Government
oflndia from various organizations of Assam for providing safeguards
G for genuine Indian citizens either by framing a new law or by amending
the existing provisions. Apprehensions of trouble/victimization of
genuine citizens at the hands of the specified authorities in the name
of detection and deportation of foreigners was expressed."

H Adequate facts, nay, no fact, is pleaded to justify such apprehension. It is
SARBANANDASONOWALv. U.0.1. [S.B. SINHA,J.] 175

not explained how Indian citizens would suffer if the 1964 Order is enforced. A
On the other hand, it is stated in the reply itself in paragraph 2:

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

Nothing was also shown at the time of arguments to persuade us to come to
a conclusion that the 1964 Order worked harshly on anyone who was sought D
to be proceeded against under the Foreigners Act and under that Order. The
present exercise is therefore seen to be not a commendable attempt to evade
the directions issued by this Court in the earlier round. That too, by way of
subordinate legislation. Though, we would normally desist from commenting,
when the security of the nation is the issue as highlighted in Sonowal I, we
have to say that the bona fides of the action leaves something to be desired. E
Although bona fides on the part of authority vested with power to make
delegated legislation ordinarily is not a relevant factor, the question is whether
the manner in which it is sought to be done is sufficient in law to get rid of
the judgment of this Court in Sonowal I. .After thus removing the 1964 Order
from the scene, the new Order of 2006 has been issued. Here also, except F
the reason already set out, no particular reason is given for making a departure
from the existing procedure. It is stated in paragraph 2(1) of the reply:

"On consideration of the representations, provisions of the Foreigners
Act, 1946 and the peculiar situation of Assam, it was considered
necessary to have a separate procedure for the Foreigners Tribunals G
in the State of Assam. It is pertinent to note that a separate procedure
for detection of foreigners has already been in existence in Assam for
the last 40 years."

No facts or details are furnished in support. What is the peculiar situation
other than what is noticed in Sonowal I is not explained,. H
176 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

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

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

(2) The registering authority appointed under sub-rule (1) of rule l6F
of the Citizenship Rules, 1956 shall refer to the Tribunal the question
whether a person of Indian origin complies with any of the
c requirements under sub-section (3) of Section 6A of the Citizenship
Act, 1955 (57 of 1955).

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

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

(5) Till any Tribunal is constituted under sub-paragraph (1), the
Tribunal constituted under the Foreigners (Tribunal) Order, 1964 shall
be deemed to be Tribunals for the purposes of this Order."
E
Paragraph 3 refers to the procedure for disposal of questions arising.

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

(2) The Tribunal shall, before giving its opinion on the question
referred to in sub-paragraph (2) of paragraph 2, give the person in
respect of whom the opinion is sought, a reasonable opportunity to
H
SARBANANDA SONOWAL v. U.0.1. [S.B. SINHA, J.] 177

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

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

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

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

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

8. The factual position that obtains is that as on 3 lst December, 2005, G
14,947 cases were pending before the Foreigners Tribunals functioning in
Assam and 29,429 persons who came to Assam between !st January, 1966
and 24th March, 1971 were identified as foreigners. As far as the Tribunals
set up under the IMDT Act were concerned, as on 12th July, 2005, 88,770

-
cases were pending and 12,846 persons who came into Assam after 25th
March, 1971 were declared as illegal migrants. H
..
178 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

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

C IO. We have already pointed out that no reasons are given to justify
such exclusion. It was all the more necessary to do so in the light of the
reasoning in Sonowal I and the directions issued therein. It is hence found
that the notification making the 1964 Order inapplicable to Assam by amending
Clause 2 of the said Order is unreasonable and arbitrary, violating Article 14
of the Constitution of India.
D
11. In making the 1964 Order inapplicable to Assam alone, when the
other States having boundaries with Bangladesh, are still expected to apply
that Order, the respondents have acted arbitrarily and have not kept in mind.
the interests of the country as highlighted in Sonowal I. No rational reason
has been put forward to justify such a separate treatment for Assam especially
E in the context of the report of the then Governor of Assam and the other facts
discussed in the earlier decision and the earlier decision itself. Therefore, the
amendment brought about to the 1964 Order by Notification G.S.R. 57 (E)
dated New Delhi, the l 0th February 2006 issued by the Government of India
has to be held to be violative of Article 355 and Article 14 of the Constitution.
p The said Notification is struck down in terms of prayer (a) in W.P. (Civil)
No. 119 of 2006.

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

13. Thus, if the Order making the 1964 Order to 1the State of Assam
inapplicable is found invalid, there is no question of the 2006 Order being
H

r
r
SARBANANDA SONOWAL v. U.O.I. [S.B. SINHA, J.] 179

promulgated to replace the 1964 Order. The attempt has to be held to be still A
born especially in the context of Sonowal I and the reasoning therein. The
field continues to be occupied by the 1964 Order and the 2006 Order cannot
operate parallelly. Moreover, the 2006 Order will fall on the basis of the
reasoning in Sonowal I.

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

15. A comparative chart showing the changes brought about in
paragraphs 2 and 3 of the 1964 Order by reason of the 2006 Order may be
noticed as under:
c
Clause Foreigners (Tribunals) Foreigners (Tribunals for
Order 1964 Assam) Order 2006
2(1) The Central Government The Central Government or
Constitution of may by order, refer the any authority specified in
Tribunals question as to whether a this regard shall, by order, D
person is or is not a refer the question as to
foreigner within the whether a person is or is
meaning of the Foreigners not a foreigner within the
Act, 1946 (31 of 1946) to meaning of the Foreigners
Tribunal to be constituted Act, 1946 (31 of 1946) to a
for the purpose, for its
E
Tribunal to be constituted
opinion. for the purpose for its
opinion.

3(1) The Tribunal shall serve The Tribunal upon receipt
Procedure for on the person to whom of a reference under sub- F
disposal of the question relates, a paragraph (I) of paragraph

- questions copy of the main grounds 2, shall consider whether
on which he is alleged to there is sufficient ground
be a foreigner and give for proceeding and if the
him a reasonable Tribunal is satisfied that
basic facts are prima facie G
opportunity of making a
representation and established, it shall serve
producing evidence in on the person to whom the
support of his case and question relates, a capy
after considering such of the main grounds on
which he is alleged to be a H
180 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A evidence as may be foreigner and give him a
produced after hearing · reasonable. opportunity of
such persons as may making a representation
deserve to be heard, the and producing evidence in
Tribunal shall submit its support of his case and
B opinion to the officer or after considering such
authority specified in this evidence as may be
behalf in the order of produced and after hearing
reference. such persons as may desire
to be heard, the Tribunal
shall submit its opinion to
c the officer or authority
specified in this behalf in
the order of reference.

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

16. Articles 5, 6 and I 1 of the Constitution of India read as under:
H

'
SARBANANDA SONOWAL v. U.0.1. [S.B. SINHA, J.] 181

"5. Citizenship at the commencement of the Constitution.-At the A
commencement of this Constitution every person who has his domicile
in the territory of India and-

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or B
(c) who has been ordinarily resident in the territory of India for not
less than five years preceding such commencement, shall be a citizen
of India.

6. Rights of citizenship of certain persons who have migrated to
India from Pakistan.-Notwithstanding anything in article 5, a person C
who has migrated to the territory of India from the territory now
included in Pakistan shall be deemed to be a citizen of India at the
commencement of this Constitution if-

(a) he or either of his parents or any of his grand-parents was born
in India as defined in the Government of India Act, 1935 (as originally D
enacted); and-

(b) (i) in the case where such person has so migrated before the
nineteenth day of July, 1948, he has been ordinarily resident in the
territory of India since the date of his migration, or
E
(ii) in the case where such person has so migrated on or after the
nineteenth day of July, 1948, he has been registered as a citizen of
India by an officer appointed in that behalf by the Government of the
Dominion of India on an application made by him therefore to such
officer before the commencement of this Constitution in the form and F
manner prescribed by that Government:

Provided that no person shall be so registered unless he has been
resident in the territory of India for at least six months immediately
preceding the date of his application.

I I. Parliament to regulate the right of citizenship by law. Nothing G
in the foregoing provisions of this Part shall derogate from the power
of Parliament to make any provision with respect to the acquisition
and termination of citizenship and all other matters relating to
citizenship."
H
182 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 17. The matter relating to illegal migration to Assam finds place in
clause (3) of Article 6-A of the Citizenship Act. It reads as under:

"(3) Subject to the provisions of sub-sections (6) and (7), every person
of Indian origin who-

(a) came to Assam on or after the lst day of January, 1966 but
B
before the 25th day of March, 1971 from the specified territory;
and
(b) has, since the date of his entry into Assam, been ordinarily
resident in Assam; and

c (c) has been detected to be a foreigner;-

shall register himself in accordance with the rules made by the
Central Government in this behalf under Section 18 with such
authority (hereafter in this sub-section referred to as the
registering authority) as may be specified in such rules and if his
D name is included in any electoral roll '.or any assembly or
parliamentary constituency in force on the date of such detection,
his name shall be deleted therefrom.
Explanation-In the case of every person seeking registration
under this sub-section, the opinion of the Tribunal constituted
E under the Foreigners (Tribunals) Order, 1964 holding such person
to be a foreigner, shall be deemed to be sufficient proof of the
requirement under clause (c) of this sub-section and if any
question arises as to whether such person complies with any
other requirement under this sub-section, the registering authority
shall,
F
(i) if such opinion contains a finding with respect to such other
requirement, decide the question in conformity with such finding;
(ii) if such opinion does not contain a finding with respect to
such other requirement, refer the question to a Tribunal constituted
under the said Order having jurisdiction in accordance with such
G
rules as the Central Government may make in this behalf under
Section 18 and decide the question in conformity with the opinion
received on such reference."

The Foreigners Tribunal, it is said, has not been set up in any other part
H of India except the State of Assam. A different regime, therefore, exists in
SARBANANDA SONOWAL v. U.0.1. [S.B. SINHA, J.] 183

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

18. This Court in Sonowal I pointed to:

(i) the Governor's report mentioning a large influx of Bangladeshis;
(ii) the failure of the IMDT Act especially because of the burden of
c
proof on those who alleged that a resident of Assam was a
foreigner;
(iii) the disinclination of the Government, for political reasons, to
wholeheartedly embark upon identification and deportation of
D
Bangladeshis from Assam; and
(iv) devising an Act which had no teeth and which, instead of helping
the identification, was intended to defeat identification.

• This Court opined:
E
(i) Section 9 of the 1946 Act regarding burden of proof is basically
on the same lines as the corresponding provision is in UK and
some other Western nations and is based upon sound legal
principle that the facts which are peculiarly within the knowledge
of a person should prove it and not the party who avers the
negative. F
(ii) Noting that the IMDT Act does not contain any provision similar
to Section 9 of the 1946 Act as regards burden of proof and after
analysis of the provisions of the !MDT Act and the Rules made
thereunder, this Court was of the view that the provisions thereof
are very stringent as compared to the provisions of the 1946 Act G
or the 1964 Order.
(iii) Tite IMDT Act and the Rules made thereunder negate the
constitutional mandate contained in Article 355 of the Constitution
of India ·and must be struck down.
H
A
184 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

(iv) There being no provision like Section 9 of the 1946 Act regarding
burden of proof in the IMDT Act, the whole complexion of the
-
case will change in favour of the illegal migrant. This right is
not available to any other person similarly situated against whom
an order under the 1946 Act may have been passed, if he is in
any part of India other than the State of Assam.
B
(v) The provisions of the 1946 Act are far more effective in
identification and deportation of foreigners who have illegally
crossed the international border and have entered India without
any authority of law and have no authority to continue to remain
in India.
c
(vi) Since the classification made whereby IMDT Act is made
applicable only to the State of Assam has no rational nexus with
the policy and object of the Act, it is clearly violative of Article
14 of the Constitution of India and is liable to be struck down
on this ground also.
D
{vii) The procedure under the 1946 Act and the 1964 Order is just, fair
and reasonable and does not offend any constitutional provision.
(viii) All cases pending before the Tribunals under the IMDT Act shall
stand transferred to the Tribunals constituted under the 1964
Order and shall be decided in the manner provided in the 1946
E
Act, the Rules made thereunder and the procedure prescribed
under the 1964 Order.
(ix) The Union of India is directed to constitute sufficient number of
Tribunals under the 1964 Order to effectively deal with cases of
foreigners, who have illegally come from Bangaldesh or are
F illegally residing in Assam.

19. Whereas in terms of the 1964 Order the Central Government alone
could exercise its jurisdiction in the matter of reference of the question as to
whether a person is or is not a foreigner, in terms of the 2006 Order, any
G other authority specified in this behalf will also be entitled to do so. It may
be true that in terms of the 1964 Order whenever a complaint is received or
if any material is collected by an authority of the Central Government, an
investigation therefor could have been initiated. Only upon making such
investigation or inquiry, the Central Government was required to form a prima
facie opinion for reference of the said question to the Tribunal. The Tribunal
H on receipt of such a reference shall issue notice upon the proceed whereafter

(
SARBANANDA SONOWAL v. U.0.1. [S.B. SINHA, J.] 185

the burden of proof would lie upon him. It may be true that by reason of A
paragraph 2 of the 2006 Order, the Central Government is now bound to refer
the question as to whether a person is or is not a foreigner. But, it may not
be correct to contend that only because it is bound to make such reference,
it would act merely as a post office. The Central Government or the authorities
specified in this behalf by reason of the provisions of the 2006 Order are not
precluded from making an investigation or inquiry into a complaint received. B
It may receive a complaint that a large number of persons whose names have
been disclosed, are foreigners. But, there cannot be any doubt whatsoever
that a preliminary inquiry which may not be as intrusive as was necessary in
terms of the 1964 Order must be held so as to form an opinion as to whether
there is any truth or substance in the allegations made in the complaint. C
20. The learned Solicitor General does not state before us that the
Central Government in the changed scenario acts merely as a post office. It
would, therefore, be necessary that some sort of application of mind would
be necessary on the part of the authorities of the Central Government.
D
21. Even in terms of the 1964 Order, keeping in view the provisions of
the Constitution of India, the Citizenship Act and the 1946 Act as interpreted
by this Court in Sonowal /, it was the solemn duty of the Central Government
to make a reference. A discretionary jurisdiction, however, was granted to
the Central Government only for the purpose of arriving at a subjective
satisfaction. E
22. By reason of the 2006 Order, the requirement to arrive at such
satisfaction on the part of the Central Government, cannot be said to have
been taken away, in view of the fact that expressions "by order" and "refer
the question" still exist in the statute and, thus, appropriate meaning thereto F
should be assigned. Before a statutory authority p·asses an order or makes
a reference to a Tribunal indisputably, therefor a satisfaction is to be arrived
at. Whenever such a satisfaction is to be arrived at, which must be reflected
in the order of reference, the same may be subject to the principles of the
judicial review. Such a decision for the purpose of making a reference is
to be arrived at on the basis of the available materials. To that extent, G
therefore, application of mind is necessary.

23. In The Barium Chemicals Ltd. and Anr. v. Sh. A.J. Rana and Ors.,
(1972] l sec 240, it was held:

"14. The words "considers it necessary" postulate that the authority H
186 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A concerned has thought over the matter deliberately and with care and
it has been found necessary as a result of such thinking to pass the
order. The dictionary meaning of the word "consider" is "to view
attentively, to survey, examine, inspect (arch), to look attentively, to
contemplate mentally, to think over, meditate on, give heed to, take
note of, to think deliberately, be think oneself, to reflect" (vide Shorter
B Oxford Dictionary). According to Words and Phrases-Permanent
Edition Vol. 8-A "to consider" means to thitik with care. It is also
mentioned that to "consider" is to fix the mind upon with a view to
careful examination; to ponder; study; meditate upon, think or reflect
with. care. It is therefore, manife~t that careful thinking or due
c application of the mind regarding the necessity to obtain and examine
the documents in question is sine qua non for the making of the order.
If the impugned order were to show that there has been no careful
thinking or proper application of the mind as to the necessity of
obtaining and examining the doc:uments specified in the order, the
essential requisite to the making of the order would be held to be
D non-existent.

15. A necessary corollary of what has been observed above is
that mind has to be applied with regard to the necessity to obtain and
examine all the documents mentioned in the order. An application of
the mind with regard to the necessity to obtain and examine only a
E few of the many documents mentioned in the order, while there has
been no such application of mind in respect of the remaining
documents, would not be sufficient compliance with the requirements
of the statute. If, however, there has been consideration of the matter
regarding the necessity to obtain and examine all the documents and
F an order is passed thereafter, the Court would stay its hand in the
.natter and would not substitute its own opinion for that of the authority
concerned regarding the necessity to obtain the documents in question."

The said principle has been reiterated in Kaiser-I-Hind (P) Ltd. v.
National Textile Corpn. (Maharashtra North) Ltd., [2002] 8 SCC 182 in the
G following terms:

"14. In view of the aforesaid requirements, before obtaining the assent
of the President, the State Government has to point out that the law
made by the State Legislature is in respect of one of the matters
enumerated in the Concurrent List by mentioning entry/entries of the
H
SARBANANDA SONOWAL v. U.0.1. [S.B. SINHA, J.] 187
Concurrent List and that it contains provision or provisions repugnant A
to the law made by Parliament or existing law. Further, the words
"reserved for consideration" would definitely indicate that there should
be active application of mind by the President to the repugnancy
pointed out between the proposed State law and the earlier law made
by Parliament and the necessity of having such a law, in the facts and B
circumstances of the matter, which is repugnant to a law enacted by
Parliament prevailing in a State. The word "consideration" would
manifest that after careful thinking over and due application of mind
regarding the necessity of having State law which is repugnant to the
law made by Parliament, the President may grant assent..."

Yet again in State (Anti-Corruption Branch), Govt. of NCT of Delhi
c
and Anr. v. Dr. R.C. Anand and Anr., [2004] 4 SCC 615, as regards necessity
for application of mind for grant of sanction, this Court opined:

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

Submission of the learned counsel to the effect that the Central
Government could reject a large number of applications which would render F
the entire process ineffective cannot be accepted. The bounded duties of the
Central Government are replete in the Constitution of India and the statutory
provisions, reference whereto has been made in detail by this Court in Sonowal
l
G
24. It may be true that while interpreting the provisions of the Act, the
changes made in the expression will have to be taken into consideration; but,
while doing so, the burden of the Central Government cannot, in our opinion,
be thrown on the Tribunal.

25. In Sonowal /, this Court has noticed the lack of will on the part of H
188 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

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

27. Even assuming that it 1s imperative on the part of the Central
Government to refer the question without making an investigation, the Order
C does not debar the said authority to place its view point while referring a
matter to the Tribunal.

28. There is an inherent danger if it is to be concluded that the Central
Government would act as a post office. For the said purpose, we may
consider the question from a different angle.
D 29. If a complaint is made and the Central Government merely forwards
it, there will be no material before the Tribunal on the basis of which it would
be able to determine whether sufficient ground for proceeding with the matter
exists or not. If on the basis of such a complaint, the Tribunal comes to a
conclusion that there is no sufficient ground, it will have no other option
E having regard to the phraseology used in paragraph 3 of the 2006 Order to
dismiss the same. But, if the Tribunal is formulating the ground so as to
enable it to communicate the same to the alleged foreigner, the Tribunal
would be able to proceed methodologically.

30. It is not in dispute that whereas in terms of the 1964 Order the
F entire burden was on the alleged foreigner; by reason of the 2006 Order, the
proceeding before the Tribunal would be in two parts. Firstly, the Tribunal
will have no other option but to apply its mind to the materials on record to
enable itself to arrive at a conclusion as to wheiher there exists any sufficient
ground for proceeding in the matter. For the said purpose, not only a
G satisfaction is required to be arrived at by the Tribunal but the basic facts in
respect thereof are required to be prima facie established. The statute is
silent as to on what basis such basic facts are required to be established. No
criterion has been laid down therefor. At that juncture, the Tribunal may not
have any assistance of any other authority. Ex facie, the Tribunal would have
to take the entire burden upon itself.
H
SARBANANDA SONOWAL v. U.0.1. [S.B. SINHA, J.] 189

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

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

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

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

32. The procedure laid down in paragraph 3 of the 1964 Order ensures
that the burden of proving that he was a citizen was on the alleged illegal
immigrant. Section 9 of the 1946 Act is based on a sound principle of law.
It is also recognized by the Indian Evidence Act in the form of Section I 06 D
thereof. The evidence required for deciding as to whether a person is or is
not a foreigner are necessarily within the personal knowledge of the person
concerned.

33. We may notice that this Court categorically opined that the procedure
under the 1946 Act and the Rules were just and fair and did not offend any E
constitutional provision, while issuing a direction that the Tribunals under the
IMDT Act would not function and the matter should be adjudicated upon in
terms of the provisions of the 1946 Act and the Rules thereunder. By reason
of the impugned Order the Central Government has created tribunals only for
Assam and for no other part of the country. p
34. It may be true that different procedure has to be applied in regard
to a person who is still in the foreign soil and those who are in the Indian
territory as has been held in Shaughnessy, District Director of Immigration
and Naturalization v. United States ex rel. Mezei, 345 US 206 and Supreme
Court of the United States Kestutis Zadvydas v. Christine G. Davis and G
Immigration and Naturalization Service, 533 US 678, whereupon Mr.
Venugopal placed strong reliance, but the said question does not arise in the
instant case.

35. Principle of Natural Justice, indisputably is required to be complied
with before a Tribunal passes an order of deportation. The 1946 Act and the H
190 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A Orders framed thereunder contain inbuilt procedure. The procedures laid
down therein are fair and reasonable. Only because, the burden of proof is
on the proceedee, the same by itself would not mean that the procedure is
ultra vires; the provisions of Article 21 of the Constitution of India. Article
21 would not be offended if the procedure is fair and reasonable.

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

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

37. Another aspect of the matter cannot also be lost sight of; The 2006
Order is a subordinate legislation. It cannot, thus, violate a substantive law
made by the Parliament.
G
In Kera/a Samsthana Chethu Thozhi/ali Union v. State of Kera/a &
Ors., (2006) 3 SCALE 534, this Court observed :

"A rule is not only required to be made in conformity with the
provisions of the Act whereunder it is made, but the same must be in
H conformity with the provisions of any other Act, as a subordinate
SARBANANDA SONOWAL v. U.0.1. [S.B. SINHA, J.] 191

legislation cannot be violative of any plenary legislation made by the A
Parliament or the State Legislature."

It was further stated :

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

In Ashok Lanka and Anr. v. Rishi Dixit and Ors., [2005] 5 SCC
c
598, it was held:

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

In Bombay Dyeing & Mfg. Co. ltd. v. Bombay Environmental
Action Group & Ors., (2006) 3 SCALE I, this Court has stated the
law in the following terms: E
"A policy decision, as is well known, should not be lightly interfered
with but it is difficult to accept the st.bmissions made on behalf of
the learned counsel appearing on behalf of the Appellants that the
courts cannot exercise their power of judicial review at all. By reason
of any legislation whether enacted by the legislature or by way of F
subordinate legislation, the State gives effect to its legislative policy.
Such legislation, however, must not be ultra vires the Constitution.
A subordinate legislation apart from being intra vires the Constitution,
should not also be ultra vires the parent Act under which it has been
made. A subordinate legislation, it is trite, must be reasonable and
in consonance with the legislative policy as also give effect to the G
purport and object of the Act and in good faith."

In Craies on Statute Law, 7th edition, it is stated at page 297:

"The initial difference between subordinate legislation (of the kind
H
192 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A dealt with in this chapter) and statute law lies in the fact that a
subordinate law-making body is bound by the terms of its delegated
or derived authority, and that courts of law, as a general rule, will not
give effect to the rules, etc., thus made, unless satisfied that all the
conditions precedent to the validity of the rules have been fulfilled.
The validity of statutes cannot be canvassed by the courts, the validity
B of delegated legislation as a general rule can be. The courts therefore
(1) will require due proof that the rules have been made and
promulgated in accordance with the statutory authority, unless the
statute directs them to be judicially noticed; (2) in the absence of
express statutory provision to the contrary, may inquire whether the
c rule-making power has been exercised in accordance with the
provisions of the statute by which it is created, either with respect to
the procedure adopted, the form or substance of the regulation, or the
sanction, if any, attached to the regulation : and it follows that the
court may reject as invalid and ultra vires a regulation which fails to
comply with the statutory essentials."
D
[See also Vasu Dev Singh & Ors. v. Union of India & Ors., (2006) 11
SCALE 108]

38. Jn Sonowal /, referring to R. v. Oliver, [1943] 2 All ER 800 and
Williams v. Russel, (1993) 149 LT 190, it was noticed
E
"30. In R. v. Oliver the accused was charged with having sold sugar
as a wholesale seller without the necessary licence. It was held that
whether the accused had a licence was a fact peculiarly within his
own knowledge and proof of the fact that he had a licence lay upon
him. It was further held that in the circumstances of the case the
F prosecution was under no necessity to give prima facie evidence of
non-existence of a licence. In this case reference is made to some
earlier decisions and it will be useful to notice the same. In R. v.
Turner the learned Judge observed as follows: (All ER p. 715 D)

"I have always understood it to be a general rule that if a negative
G averment be made by one party, which is peculiarly within the
knowledge of the other, the party within whose knowledge it lies, and
who asserts the affirmative is to prove it and not he who avers the
negative."

3 l. In Williams v. Russel the learned Judge held as under:
H
SARBANANDASONOWALv.U.0.1. [S.B. SINHA,J.] 193

"On the principle laid down in R. v. Turner and numerous other A
cases where it is an offence to do an act without lawful authority, the
person who sets up the lawful authority must prove it and the
prosecution need not prove the absence of lawful authority. I think
the onus of the negative averment in this case was on the accused
to prove the possession of the policy required by the statute."
B
There cannot, however, be any doubt whatsoever that adequate care
should be taken to see that no genuine citizen of India is thrown out of the
country. A person who claims himself to be a citizen of India in terms of the
Constitution of India or the Citizenship Act is entitled to all safeguards both
substantive and procedural provided for therein to show that he is a citizen. C
39. Status ofa person, however, is determined according to statute. The
Evidence Act of our country has made provisions as regards 'burden of
proof. Different statutes also lay down as to how and in what manner
burden is to be discharged. Even some penal statutes contain provisions that
burden of proof shall be on the accused. Only because burden of proof under D
certain situations is placed on the accused, the same would not mean that he
is deprived of the procedural safeguard.

In Hiten Pal Dalal v. Bratindranath Banerjee, [2001] 6 SCC 16, this
Court categorically opined :
E
" ... Presumptions are rules of evidence and do not conflict with the
presumption of innocence, because by the latter, all that is meant is
that the prosecution is obliged to prove the case against the accused
beyond reasonable doubt. The obligation on the prosecution may be
discharged with the help of presumptions o(law or fact unless the
accused adduces evidence showing the reasonable possibility of the F
non-existence of the presumed fact.

23. In other words, provided the facts required to form the basis of
a presumption of law exist, no discretion is left with the court but to
draw the statutory conclusion, but this does not preclude the person
against whom the presumption is drawn from rebutting it and proving G
the contrary. A fact is said to be proved when,

"after considering the matters before it, the court either believes
it to exist, or considers its existence so probable that a prudent
man ought, under the circumstances of the particular case, to act
H
194 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A upon the supposition that it exists"

Therefore, the rebuttal does not have to be conclusively established
but such evidence must be adduced before the court in support of the
defence that the court must either believe the defence to exist or
consider its existence to be reasonably probable, the standard of
B reasonability being that of the "prudent man"".

Moreover, there exists a difference between a burden of proof and onus
of proof.

In Anil Rishi v. Gurbaksh Singh, (2006) 5 SCALE 153, this Court
C observed

"There is another aspect of the matter which should be borne in
mind. A distinction exists between a burden of proof and onus of
proof. The right to begin follows onus probandi. It assumes
importance in the early stage of a case. The question of onus of
D proof has greater force, where the question is which party is to begin.
Burden of proof is used in three ways : (i) to indicate the duty of
bringing forward evidence in support of a proposition at the beginning .
or later; (ii) to make that of establishing a proposition as against all
counter evidence; and (iii) an indiscriminate use in which it may mean
either or both of the others. The elementary rule is Section l 0 l is
E inflexible. In terms of Section 102 the initial onus is always on the
plaintiff and if he discharges that onus and makes out a case which
entitles him to a relief, the onus shifts to the defendant to prove those
circumstances, if any, which would disentitle the plaintiff to the same."

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

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

It was stated:
H
. SARBANANDASONOWALv. U.O.l. (S.B. SINHA,J.] 195
"26. There is good and sound reason for placing the burden of proof A
upon the person concerned who asserts to be a citizet\ of a particular
country. In order to establish one's citizenship, nonnally he may be
required to give evidence of(i) his date of birth (ii) place of birth (iii)
name of his parents (iv) their place of birth and citizenship. Sometimes
the place of birth of his grandparents may also be relevant like under B
Section 6-A(l)(d) of the Citizenship Act. All these facts would
necessarily be within the personal knowledge of the person concerned
and not of the authorities of the State. After he has given evidence
on these points, the State authorities can verify the facts and can then
lead evidence in rebuttal, if necessary. If the State authorities dispute
the claim of citizenship by a person and assert that he is a foreigner, C
it will not only be difficult but almost impossible for them to first lead
evidence on the aforesaid points. This is in accordance with the
underlying policy of Section I 06 of the Evidence Act which says that
when any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him."
D
The Court noticed that even in criminal cases, under certain statutes,
the burden of proof would be on the accused.

42. For the aforementioned reasons also, in our opinion, the impugned
subordinate legislation cannot be sustained as it does not stand the test of
the reasoning in Sonowal /. E
43. In the face of the clear directions issued in Sonowal I, it was for the
'1 Authority concerned to strength the Tribunals under the 1964 Order and to
make them work. Instead of doing so, the 2006 Order has been promulgated.
It is not as if the respondents have found the 1964 Order unworkable in the
State of Assam; they have simply refused to enforce that Order in spite of F
directions in that behalf by this Court. It is not for us to speculate on the
reasons for this attitude. The earlier decision in Sonowal, has referred to the
relevant materials showing that such uncontrolled immigration into the North- ,
Eastern States posed a threat to the integrity of the nation. What was
therefore called for was a strict implementation of the directions of this Court G
earlier issued in Sonowal I, so as to ensure that illegal immigrants are sent
out of the country, while in spite of lapse of time, the Tribunals under the 1964
Order had not been strengthened as directed in Sonowal I. Why it was not
so done, has not been made dear by the Central Government. We have to
once again lament with Sonowal I that there is a lack of will in the matter of H
196 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A ensuring that illegal immigrants are sent out of the country.

44. It appears that the 2006 Order has been issued just as a cover up
for non implementation of the directions of this Court issued in Sonowal I.
The Order of2006, in our view, is clearly unnecessary in the light of the 1946
Act and the Orders made thereunder and the directions issued in Sonowal I.
B It does not serve the purpose sought to be achieved by the 1946 Act or the
Citizenship Act and the obligations cast on the Central Government to protect
the nation in terms of Article 355 of the Constitution of India highlighted in
Sonowal. We have also earlier struck down the repeal of the 1964 Order as
regards Assam. The 2006 Order is therefore found to be unreason~ble and
C issued in an arbitrary exercise of power. It requires to be quashed or declared
invalid.

45. We therefore allow these Writ Petitions and quash the 2006 order
and the Foreigners (Tribunal) Amendment Order 2006 and direct the
respondents to forthwith implement the directions issued by this Court in
D Sonowal I. No time limit for implementation was fixed in Sonowal I with the
hope that the Central Government would implement the directions within a
reasonable time. But now that it has not been done and we do not find
adequate reasons for justifying the non-implementation of the directions
issued in Sonowal I, we direct that the directions issued to the Union of India
to constitute sufficient number of Tribunals under the I 964 Order to effectively
E deal with the cases of foreigners who have illegally come from Bangladesh
or are residing in Assam, be implemented with a period of four months from
this date.

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

B.S. Writ Petitions allowed.