ASSAM SANMILITA MAHASANGHA vs. UNION OF INDIA MINISTRY OF HOME AFFAIRS REPRESENTED BY THE SECRETARY

REPORTABLE IN THE SUPREME COURT OF INDIA

Assam Sanmilita Mahasangha & Ors. …Petitioners Versus Union of India & Ors. …Respondents WITH WRIT PETITION (CIVIL) NO. 274 OF 2009 Assam Public Works …Petitioner Versus Union of India & Ors. …Respondents JUDGMENT WITH WRIT PETITION (CIVIL) NO. 876 OF 2014 All Assam Ahom Association & Ors. …Petitioners Versus Union of India & Ors. …Respondents 1 Page 1 J U D G M E N T R.F. Nariman, J.

under Article 32 of the Constitution of India assailing Section 6A of the Citizenship Act. th 2. It all began when the Burmese ceded Assam to the British on 24 February, 1826 as per the treaty of Yandabo, thus bringing to an end Ahom th rule in Assam which had begun sometime in the 13 century. The British annexed Assam and placed it as an administrative unit of the Bengal Province. As early as 1931, C.S. Mullan, the Census Superintendent in his census report stated: JUDGMENT “Probably the most important event in the province during the last 25 years- an event, moreover, which seems likely to alter permanently the whole feature of Assam and to destroy the whole structure of Assamese culture and civilization has been the invasion of a vast horde of land-hungry immigrants mostly Muslims, from the districts of East Bengal. … wheresoever the carcass, there the vultures will gathered together ” (Politics of Migration by Dr. Manju Singh, Anita Publications, Jaipur, 1990, Page 59) 2 Page 2 3. In 1935, when the Government of India Act was promulgated, Assam was, under Section 46(1), stated to be a Governor’s province. It was in this scenario that the Foreigners Act of 1946 was enacted under which the

person. At the commencement of the Constitution of India, Article 5 stated that every person who has his domicile in the territory of India and who was either born in the territory of India; or either of whose parents were born in the territory of India; or who has been ordinarily resident in the territory of India for not less than 5 years immediately preceding such commencement shall be a citizen of India. As an exception, Article 6, which is important for the determination of some of the questions arising in these writ petitions, states as follows: “ Rights of citizenship of certain persons who have migrated to India from Pakistan. --Notwithstanding anything in Article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if JUDGMENT (a) he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and (b)(i) in the case where such person has so migrated before the nineteenth day of July, 1948 , he has been ordinarily resident in the territory of India since the date of his migration, or 3 Page 3

th 4. 19 July, 1948, therefore, became the baseline for such persons as were referred to in Article 6 for being citizens of India. 5. At this stage, the Immigrants (Expulsion from Assam) Act, 1950 was enacted to protect the indigenous inhabitants of Assam. The statement of objects and reasons of this Act says “during the last few months a serious situation had arisen from the immigration of a very large number of East Bengal residents into Assam. JUDGMENT Such large migration is disturbing the economy of the province, besides giving rise to a serious law and order problem. The bill seeks to confer necessary powers on the Central Government to deal with the situation.” 6. In pursuance of this object, Sections 2 and 4 of this Act which also have a bearing on some of the issues raised in these petitions state as follows: 4 Page 4 “2. Power to order expulsion of certain immigrants.-

(a) direct such person or class of persons to remove himself or themselves from India or Assam within such time and by such route as may be specified in the order; and (b) give such further directions in regard to his or their removal from India or Assam as it may consider necessary or expedient; Provided that nothing in this section shall apply to any person who on account of civil disturbances or the fear of such disturbances in any area now forming part of Pakistan has been displaced from or has left his place of residence in such area and who has been subsequently residing in Assam. JUDGMENT 4. Power to give effect orders, etc.- Any authority empowered by or in pursuance of the provisions of this Act to exercise any power may, in addition to any other action expressly provided for in this Act, take or cause to be taken such steps, and use or cause to be used such force, as may in its opinion be reasonably necessary for the effective exercise of such power.” 7. It was during the census of 1951 that a National Register of Citizens was prepared under a directive of the Ministry of Home Affairs containing 5 Page 5 information village-wise of each and every person enumerated therein. Details such as the number and names of persons, the houses or holdings belonging to them, father’s name or husband’s name, nationality, age, the

8. Between 1948 and 1971, there were large scale migrations from East Pakistan to Assam. As is well known, West Pakistan commenced hostilities th against East Pakistan on 25 March, 1971 culminating in the war which dismembered the two parts of Pakistan and in which a new nation, Bangladesh, was born. It is interesting to note that immediately after the th successful culmination of the war in Bangladesh, on 19 March, 1972, a treaty for friendship, co-operation and peace was signed between India and Bangladesh. Article 8 of the said treaty is in the following terms: “In accordance with the ties of friendship existing between the two countries each of the High Contracting Parties solemnly declares that it shall not enter into or participate in any military alliance directed against the other party. Each of the High Contracting Parties shall refrain from any aggression against the other party and shall not allow the use of its territory for committing any act that may cause military damage to or constitute a threat to the security of the other High Contracting Party” JUDGMENT 9. Given the continuing influx of illegal migrants from Bangladesh into Assam, the All Assam Students Union first submitted a memorandum to the 6 Page 6 then Prime Minister of India (in 1980) inviting her urgent attention to this issue. As a result of such representations, Parliament enacted the Illegal Migrants (Determination by Tribunal) Act, 1983. This Act was made

up the determination of illegal migrants in the State of Assam with a view to their deportation. 10. Not being satisfied with this parliamentary measure, and in view of large scale agitations in the State of Assam, an accord was signed known as th the “Assam Accord” on 15 August, 1985 between the AASU, AAGSP and the Central and the State Governments. This Accord is worth quoting in extenso: “ASSAM ACCORD 15th August, 1985 JUDGMENT (Accord between AASU, AAGSP, Central and State Government on the Foreigner Problem Issue) MEMORANDUM OF SETTLEMENT 1. Government have all along been most anxious to find a satisfactory solution to the problem of Foreigners in Assam. The All Assam Students' Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP) have also expressed their Keenness to find such a solution. 2. The AASU through their Memorandum dated 2nd February, 1980 presented to the Late Prime Minister Smt. Indira Gandhi, conveyed their profound sense of 7 Page 7 apprehensions regarding the continuing influx of foreign nationals into Assam and the fear about adverse affects upon the political, social, cultural and economic life of the State.

4. Keeping all aspects of the problem including constitutional and legal provision, international agreements, national commitments and humanitarian considerations, it has been decided to proceed as follows :- Foreigners Issue: 5. 1. For purpose of detection and deletion of foreigners, 1-1- 1966 shall be the base date and year. 2. All persons who came to Assam prior to 1-1-1966, including those amongst them whose names appeared on the electoral rolls used in 1967 elections, shall be regularized. 3. Foreigners who came to Assam after 1-1-1966 (inclusive) and upto 24th March, 1971 shall be detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1939. JUDGMENT 4. Names of foreigners so detected will be deleted from the electoral rolls in force. Such persons will be required to register themselves before the Registration Officers of the respective districts in accordance with the provisions of the Registration of Foreigners Act, 1939 and the Registration of Foreigners Rules, 1939. 5. For this purpose, Government of India will undertake suitable strengthening of the governmental machinery. 8 Page 8 6. On the expiry of the period of ten year following the date of detection, the names of all such persons which have been deleted from the electoral rolls shall be restored. 7. All persons who were expelled earlier, but have since re- entered illegally into Assam, shall be expelled. 8. Foreigners who came to Assam on or after March 25, 1971 shall continue to be detected, deleted and expelled in accordance with the law. Immediate and practical steps shall be taken to expel such foreigners. 9. The Government will give due consideration to certain difficulties express by the AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983. Safeguards and Economic Development: 6. Constitutional, legislative and administrative safeguards, as may be appropriate, shall be provided to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people. 7. The Government takes this opportunity to renew their commitment for the speedy all round economic development of Assam, so as to improve the standard of living of the people. Special emphasis will be placed on the education and Science & Technology through establishment of national institutions. JUDGMENT Other Issues: 8. 1. The Government will arrange for the issue of citizenship certificate in future only by the authorities of the Central Government. 2. Specific complaints that may be made by the AASU/AAGSP about irregular issuance of Indian Citizenship Certificates (ICC) will be looked into. 9. 9 Page 9

2. Besides the arrangements mentioned above and keeping in view security considerations, a road all along the international border shall be constructed so as to facilitate patrolling by security forces. Land between border and the road would be kept free of human habitation, wherever possible. Riverine patrolling along the international border would be intensified. All effective measures would be adopted to prevent infiltrators crossing or attempting to cross the international border. 10. It will be ensured that relevant laws for prevention of encroachment of government lands and lands in tribal belts and blocks are strictly enforced and unauthorized encroachers evicted as laid down under such laws. 11. It will be ensured that the law restricting acquisition of immovable property by foreigners in Assam is strictly enforced. JUDGMENT 12. It will be ensured that Birth and Death Registers are duly maintained. Restoration of Normalcy: 13. The All Assam Students Unions (AASU) and the All Assam Gana Sangram Parishad (AAGSP) call off the agitation, assure full co-operation and dedicate themselves towards the development of the Country. 14. The Central and the State Government have agreed to: 1. Review with sympathy and withdraw cases of disciplinary action taken against employees in the context of the agitation and to ensure that there is no victimization; 10 Page 10 2. Frame a scheme for ex-gratia payment to next of kin of those who were killed in the course in the agitation.

4. Undertake review of detention cases, if any, as well as cases against persons charged with criminal offences in connection with the agitation, except those charged with commission of heinous offences. 5. Consider withdrawal of the prohibitory orders/ notifications in force, if any: 15. The Ministry of Home Affairs will be the nodal Ministry for the implementation of the above. Sd/- Sd/- (P.K. Mahanta) (R.D. Pradhan) President Home Secretary All Assam Students' Union Government of India Sd/- Sd/- JUDGMENT (B.K. Phukan) (Smt. P. P. Trivedi) General Secretary Chief Secretary All Assam Students' Union Government of Assam Sd/- (Biraj Sharma) Convenor All Assam Students' Union In the Presence of 11 Page 11 Sd/- (Rajiv Gandhi) Prime Minister of India Date: 15th August, 1985 Place: New Delhi” 11. It was in pursuance of this accord that Section 6A was inserted in the Citizenship Act in 1985. The Statement of Objects and Reasons of the Act specifically states that it is legislation required to give effect to the Assam Accord. Section 6A states as follows: “6A. Special provisions as to citizenship of persons covered by the Assam Accord .— (1) For the purposes of this section— (a) “Assam” means the territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Act, 1985; JUDGMENT (b) “detected to be a foreigner” means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 (31 of 1946) and the Foreigners (Tribunals) Order, 1964 by a Tribunal constituted under the said Order; (c) “specified territory” means the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985; (d) a person shall be deemed to be of Indian origin, if he, or either of his parents or any of his grandparents was born in undivided India; (e) a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under 12 Page 12 the Foreigners (Tribunals) Order, 1964 submits its opinion to the effect that he is a foreigner to the officer or authority concerned.

(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 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) 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 (thereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom. JUDGMENT Explanation.—In the case of every person seeking registration under this sub-section, the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such person to be a foreigner, shall be deemed to be sufficient proof of the requirement under clause (c) of this sub-section and if any question arises as to whether such person complies with any other requirement under this sub- section, the registering authority shall,— 13 Page 13 (i) if such opinion contains a finding with respect to such other requirement, decide the question in conformity with such finding;

(4) A person registered under sub-section (3) shall have, as from the date on which he has been detected to be a foreigner and till the expiry of a period of ten years from that date, the same rights and obligations as a citizen of India (including the right to obtain a passport under the Passports Act, 1967 (15 of 1967) and the obligations connected therewith), but shall not be entitled to have his name included in any electoral roll for any Assembly or Parliamentary constituency at any time before the expiry of the said period of ten years. (5) A person registered under sub-section (3) shall be deemed to be a citizen of India for all purposes as from the date of expiry of a period of ten years from the date on which he has been detected to be a foreigner. (6) Without prejudice to the provisions of section 8,— JUDGMENT (a) if any person referred to in sub-section (2) submits in the prescribed manner and form and to the prescribed authority within sixty days from the date of commencement of the Citizenship (Amendment) Act, 1985, for year a declaration that he does not wish to be a citizen of India, such person shall not be deemed to have become a citizen of India under that sub-section; (b) If any person referred to in sub-section (3) submits in the prescribed manner and form and to the prescribed authority within sixty days from the date of commencement the Citizenship (Amendment) Act, 1985, for year or from the date on which he has been detected to be a foreigner, whichever is later, a declaration that he does not wish to be 14 Page 14 governed by the provisions of that sub-section and sub- sections (4) and (5), it shall not be necessary for such person to register himself under sub-section (3).

(7) Nothing in sub-sections (2) to (6) shall apply in relation to any person— (a) who, immediately before the commencement of the Citizenship (Amendment) Act, 1985, for year is a citizen of India; (b) who was expelled from India before the commencement of the Citizenship (Amendment) Act, 1985, for year under the Foreigners Act, 1946 (31 of 1946). (8) Save as otherwise expressly provided in this section, the provisions of this section shall have effect notwithstanding anything contained in any other law for the time being in force.” 12. It will be seen that as part of the Assam Accord, a huge number of JUDGMENT illegal migrants were made deemed citizens of India. It is interesting to note that Parliament has not enacted any law pertaining to refugees from other countries. Refugee status can be granted and has been granted in India through executive orders passed by the Central Government. In any case, Section 6A did not merely rest content with granting refugee status to those who were illegal migrants from East Pakistan but went on to grant them the 15 Page 15 benefit of citizenship of India so that all persons who had migrated before th 1966 and all persons who migrated before 25 March, 1971 respectively were to become citizens of India either immediately or as is mentioned by

they have in fact settled in India between 1966 and 1971. th 13. On 8 of November, 1998, Lieutenant General S.K. Sinha, the then Governor of Assam, submitted an extensive report to the then President of India on the grave threat posed by the influx of people from Bangladesh to 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 spectre looms large of the indigenous people of Assam being reduced to a minority in their home state. Their cultural survival will be in jeopardy, their political control will be weakened and their employment opportunities will be undermined. JUDGMENT 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 16 Page 16 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.”

of 2000 was filed by Sarbananda Sonowal assailing the Constitutional validity of “The Illegal Migrants (Determination by Tribunals) Act, 1983” and the rules made thereunder. 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 JUDGMENT went on to hold that Article 355 of the Constitution had been violated, in as much 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. In as much as this Act was struck down, the Immigrants (Expulsion from Assam) Act 1950 together with the 17 Page 17 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.

deportation of illegal Bangladeshi migrants, the Minister of State, Home Affairs, submitted a statement to Parliament indicating therein that the st estimated number of illegal Bangladeshi immigrants into India as on 31 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 JUDGMENT 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. 19. A preliminary submission was urged by the learned Additional Solicitor General of India Mr. Neeraj Kaul that Section 6A having been 18 Page 18 enacted in 1985, a challenge made in 2012 would be barred by delay and laches. We will first advert to this preliminary submission in order to see whether we will proceed further to determine the issues raised in these writ petitions. 20. Writ Petition (Civil) No. 562 of 2012 which was taken up by us first contains the following prayers: “a) a writ in the nature of Certiorari or any other appropriate writ(s), order(s) or direction(s) declaring Section 6A of The Citizenship Act, 1955 as discriminatory, arbitrary and illegal and consequently striking down the impugned provision as ultra-vires the Constitution of India; b) a writ in the nature of Mandamus or any other appropriate writ(s), order(s) or direction(s) directing the respondent no.1 and 3 not to update the National Register of Citizens with respect to the State of Assam by taking into account the th electoral rolls prior to March 24 (midnight) 1971; c) a writ in the nature of Mandamus or any other appropriate writ(s), order(s) or direction(s) directing the respondent no 1 and 3 to update the National Register of Citizens with respect to the State of Assam relying only on the details incorporated in the National Register of Citizens prepared in 1951 ; JUDGMENT d) a writ in the nature of Mandamus or any other appropriate writ(s), order(s) or direction(s) directing the respondents to treat 1951 as the base year for the purpose of detection and deportation of illegal immigrants in the State of Assam; e) a writ in the nature of Mandamus or any other appropriate writ(s), order(s) or direction(s) directing the respondents no 1 and 2 to immediately take effective steps towards ensuring the deportation of the illegal immigrants from the territory of India; 19 Page 19 f) Issue Rule Nisi in terms of prayers (a), (b), (c), (d) and (e) above; g) Pass such other further or other writ, orders or directions as your Lordships may deem fit and proper in the facts and circumstances of the instant case.” 21. Article 32 of the Constitution which has been described as the “heart and soul” of the Constitution guarantees the right to move the Supreme Court for the enforcement of all or any of the fundamental rights conferred by Part III of the Constitution. This Article is, therefore, itself a fundamental right and it is in this backdrop that we need to address the preliminary submission. 22. In Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110, a Constitution Bench was asked to decide on the Constitutional validity of Section 12A (4) of the Bombay Sales Tax Act. The precise ground for JUDGMENT challenge was a violation of Article 19(1)(f) of the Constitution. A majority of three out of five Judges held that the petition was hit by the doctrine of laches and hence dismissed the petition. In so holding, each of the Judges arrived at differing reasons as to why petitions under Article 32 ought to be dismissed on the ground of delay/laches. In paragraphs 9, 10 and 11 Hidayatullah, C.J., held: 20 Page 20

10. If then there is no period prescribed what is the standard for this Court to follow? I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of 6 months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. In India I will only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction. JUDGMENT 11. Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some article but this Court need not necessarily give the total time to the litigant to move this Court under Article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed are when and how the delay arose.” 21 Page 21 Justice Sikri held as follows:

JUDGMENT 30. In my opinion the petitioner was under a mistake of law, when he paid up, the mistake being that he thought that 22 Page 22 Section 12-A(4) was a valid provision in spite of its imposing unreasonable restrictions. This mistake he discovered like all assessees when this court struck down Section 12-A(4) of the Bombay Sales Tax Act. He has come to this Court within six months of that day and there is no delay”. Bachawat J., held as follows: “ 41. Similarly this Court acts on the analogy of the statute of limitation in respect of a claim under Article 32 of the Constitution though such claim is not the subject of any express statutory bar of limitation. If the right to a property is extinguished by prescription under Section 27 of the Limitation Act, 1963, the petitioner has no subsisting right which can be enforced under Article 32 (see Sobbraj Odharmal v. State of Rajasthan) [(1963) Supp (1) SCR 99, 111] . In other cases where the remedy only and not the right is extinguished by limitation, it is on grounds of the public policy that the court refuses to entertain stale claims under Article 32. The statutes of limitation are founded on sound principles of public policy. As observed in Whitley Stoke's Anglo-Indian Codes, Vol. 11, p. 940; “The law is founded on public policy, its aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken diligence, and to prevent oppression”. In Her Highness Ruckmaboye v. Luloobhoy Mottickchund [(1851-52) 5 MIA 234, 251] the Privy Council observed that the object of the statutes of limitation was to give effect to the maxim, “interest reipublicoe ut sit finis litium” (co litt 303) the interest of the State requires that there should be a limit to litigation. The rule of res judicata is founded upon the same rule of public policy, see Daryao v. State of U.P. at p. 584. The other ground of public policy upon which the statutes of limitation are founded is expressed in the maxim “vigilantibus non dormientibus jura subveniunt” (2 Co Inst. 690) the laws aid the vigilant and not those who slumber. On grounds of public policy the court applies the principles of res judicata to writ petitions under Article 32. On like grounds the court acts on the analogy of the statutes of JUDGMENT 23 Page 23 limitation in the exercise of its jurisdiction under Article 32. It follows that the present petition must be dismissed” Mitter J., held as follows:

The sole dissentient was Hegde, J., who decided that Article 32 itself being a fundamental right, there is no question of delay being used to non-suit a petitioner at the threshold. His minority view is as follows: “ 75. There has been some controversy whether an aggrieved party can waive his fundamental right. That question was elaborately considered in Basheshar Nath v. CIT, Delhi, Rajasthan [(1959) Supp (1) SCR 528] by a Constitution Bench consisting of S.R. Das, C.J., and Bhagwati, S.K. Das, J.L., Kapur and Subba Rao, JJ. The learned Chief Justice and Kapur, J., held that there could be no waiver of a fundamental right founded on Article 14. Bhagwati and Subba Rao, JJ., held that no fundamental right can be waived and S.K. Das, J., held that only such fundamental rights which are intended to the benefit of a party can be waived. I am mentioning all these aspects to show how zealously this court has been resisting every attempt to narrow down the scope of the rights guaranteed under Part III of our Constitution. JUDGMENT 76 . Admittedly the provisions contained in the Limitation Act do not apply to proceedings under Article 226 or Article 32. 24 Page 24

JUDGMENT 25 Page 25

JUDGMENT 23. It will thus be seen that Hidayatullah, C.J., did not lay down any fixed period. According to him, there is no lower limit or upper limit except that utmost expedition is a sine qua non for moving a petition under Article 32. 26 Page 26 The learned Chief Justice left it to be decided on the facts of each case depending on what the breach of the fundamental right is, what the remedy claimed is, and when and how the delay arose. Sikri J., on the other hand

Bachawat and Mitter, J., would ask the question as to whether time under the Limitation Act had run out, and if so, whether the writ petition ought to be dismissed as a result. 24. It is clear from a reading of these differing judgments that the ratio of this Constitution bench judgment can broadly be stated to be that a writ petition filed under Article 32 can be dismissed on the ground of delay. Beyond that, there is no discernible ratio as no majority can be cobbled up for deciding on what basis such writ petition can be so dismissed. 25. Close on the heels of this judgment in Rabindranath Bose & Ors. v. JUDGMENT Union of India & Ors., (1970) 1 SCC 84, a fervent plea was made to reconsider the judgment in Tilokchand Motichand . This plea was turned down and it was held that a stale claim of 15 years to challenge appointments and promotions already made without any explanation for so moving after 15 years would result in dismissal of an Article 32 petition, more so when rights had accrued to the respondents in that case. The Court held: 27 Page 27

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29 Page 29 26. In Ramchandra Shankar Deodhar v. State of Maharashtra, (1974) 1 SCC 317, a Constitution Bench was invited to dismiss a petition filed under Article 32 on the ground of laches. The petitioner having approached

writ petition containing stale claims is not a rule of law but a rule of practice based on sound and proper discretion. There is no inviolable rule that whenever there is a delay, the court must necessarily refuse to entertain the petition. After referring to Tilokchand Motichand and Rabindranath Bose , the Court held that the claim for enforcement of the fundamental right of equal opportunity under Article 16 cannot be dismissed solely on the ground of delay/laches etc. The Court also went on to hold that promotions being provisional, no rights have been conferred on those who are promoted whose interest can therefore be defeated if ultimately it is found that such JUDGMENT promotions are not warranted in law. 27. In Express Publication (Madurai) Ltd. v. Union of India, (2004) 11 SCC 526, the employer newspaper wished to challenge paragraph 80 of the Employees Provident Fund Scheme, 1952, which came into force in 1956. The challenge was made in a writ petition under Article 32, 45 years later in 2001. This was turned down by a Bench of two Judges with a caveat, that if it was the case of the petitioners that with the passage of time, a certain 30 Page 30 provision had become unconstitutional, then obviously the very passage of time would not amount to delay for which a writ petition would not be entertained.

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30. It will be seen that, in the present case, the petitioners in the various writ petitions represent an entire people – the tribal and non-tribal population of the State of Assam. In their petition, they have raised a plea that the sovereignty and integrity of India is itself at stake as a massive influx of illegal migrants from a neighboring country has affected this core 32 Page 32 Constitutional value. That, in fact, it has been held in Sonowal’s case that such an influx is “external aggression” within the meaning of Article 355 of the Constitution of India, and that the Central Government has done precious

result of this huge influx, periodic clashes have been taking place between the citizens of India and these migrants resulting into loss of life and property, sounding in a violation of Articles 21 and 29 of the Constitution of the Assamese people as a whole. Not only is there an assault on the life of the citizenry of the State of Assam but there is an assault on their way of life as well. The culture of an entire people is being eroded in such a way that they will ultimately be swamped by persons who have no right to continue to live in this country. The petitioners have also argued that this Hon’ble Court in Sonowal’s case has specifically held in para 79 thereof that JUDGMENT Bangladeshi nationals who have illegally crossed the border and have trespassed into Assam or are living in other parts of the country have no legal right of any kind to remain in India and are liable to be deported. They have also raised a fervent plea that Article 14 also continues to be violated as Section 6A (3) to (5) are not time bound but are ongoing. 31. Given the contentions raised specifically with regard to pleas under Articles 21 and 29, of a whole class of people, namely, the tribal and non- 33 Page 33 tribal citizens of Assam and given the fact that agitations on this core are ongoing, we do not feel that petitions of this kind can be dismissed at the threshold on the ground of delay/laches. Indeed, if we were to do so, we

own citizens and their culture. In fact, the time has come to have a relook at the doctrine of laches altogether when it comes to violations of Articles 21 and 29. 32. Tilokchand Motichand is a judgment involving property rights of individuals. Ramchandra Deodhar’s case, also of a Constitution Bench of five judges has held that the fundamental right under Article 16 cannot be wished away solely on the ‘jejune’ ground of delay. Since Tilokchand Motichand’s case was decided, there have been important strides made in the law. Property Rights have been removed from part III of the JUDGMENT th Constitution altogether by the Constitution 44 Amendment Act. The same amendment made it clear that even during an emergency, the fundamental right under Article 21 can never be suspended, and amended Article 359 (1) to give effect to this. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 decided nine years after Tilokchand Motichand , Article 21 has been given its new dimension, and pursuant to the new dimension a huge number of rights have come under the umbrella of Article 21 (for an enumeration of 34 Page 34 these rights, see Kapila Hingorani v. State of Bihar , (2003) 6 SCC 1 at para 57). Further, in Olga Tellis & Ors. v. Bombay Municipal Corporation, (1985) 3 SCC 545, it has now been conclusively held that all

developments in the law, the time has come for this Court to say that at least when it comes to violations of the fundamental right to life and personal liberty, delay or laches by itself without more would not be sufficient to shut the doors of the court on any petitioner. 33. Coming now to the merits, we have heard several counsels for the petitioners who have raised a number of points, which have been rebutted by the counsel for the Union of India, the State of Assam and several interveners. We feel that the following questions need to be answered by an appropriate Bench as most of them are substantial questions as to the JUDGMENT interpretation of the Constitution which have to be decided by a minimum of 5 Judges under Article 145(3). An enumeration of these questions is as follows: (i) Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6A of the Citizenship Act in as much as Section 6A, in prescribing a cut-off date different from the cut-off date prescribed in Article 35 Page 35 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4 (2) read with Article 368 (1)?

Assam; (iii) What is the scope of the fundamental right contained in Article 29(1)? Is the fundamental right absolute in its terms? In particular, what is the meaning of the expression “culture” and the expression “conserve”? Whether Section 6A violates Article 29(1)? (iv) Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution? Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”? Does the expression “State” occurring in this Article refer only to a JUDGMENT territorial region or does it also include the people living in the State, which would include their culture and identity? (v) Whether Section 6A violates Article 14 in that, it singles out Assam from other border States (which comprise a distinct class) and discriminates against it. Also whether there is no rational basis for having a separate cut- 36 Page 36 off date for regularizing illegal migrants who enter Assam as opposed to the rest of the country; and

influx of illegal migrants from Bangladesh. (vii) Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution? (viii) Whether, after a large number of migrants from East Pakistan have enjoyed rights as Citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases? (ix) Whether section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits Citizens who have allegedly not lost JUDGMENT their Citizenship of East Pakistan to become deemed Citizens of India, thereby conferring dual Citizenship to such persons? (x) Whether section 6A violates the fundamental basis of section 5 (1) proviso and section 5 (2) of the Citizenship Act (as it stood in 1985) in that it permits a class of migrants to become deemed Citizens of India without any reciprocity from Bangladesh and without taking the oath of allegiance to the Indian Constitution? 37 Page 37 (xi) Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners

(xii) Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law? (xiii) Whether Section 6A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed citizenship to such persons arbitrarily? 34. These matters be placed before the Chief Justice for constitution of an appropriate bench to answer the above questions. As notice is yet to be issued in Writ Petition (Civil) No. 876 of 2014, we direct that notice be JUDGMENT issued and served on the Respondents in the said writ petition. 35. As Section 6A of the Citizenship Act must be deemed to be valid until the larger Bench decides these matters, we will proceed, for the purposes of this order, on the footing that Section 6A of the Citizenship Act is valid. 36. As the statement of objects and reasons for the enactment of Section 6A states, the said Section was inserted into the statute book in 1985 to 38 Page 38 th implement one part of the Assam Accord dated 15 August, 1985. The Assam Accord contained various provisions providing for reciprocal obligations. These are largely contained in paragraphs 5, 6, 9 and 10 which read as under: “5. 1. For purpose of detection and deletion of foreigners, 1-1- 1966 shall be the base date and year. 2. All persons who came to Assam prior to 1-1-1966, including those amongst them whose names appeared on the electoral rolls used in 1967 elections, shall be regularized. 3. Foreigners who came to Assam after 1-1-1966 (inclusive) and upto 24th March, 1971 shall be detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1939. 4. Names of foreigners so detected will be deleted from the electoral rolls in force. Such persons will be required to register themselves before the Registration Officers of the respective districts in accordance with the provisions of the Registration of Foreigners Act, 1939 and the Registration of Foreigners Rules, 1939. JUDGMENT 5. For this purpose, Government of India will undertake suitable strengthening of the governmental machinery. 6. On the expiry of the period of ten year following the date of detection, the names of all such persons which have been deleted from the electoral rolls shall be restored. 7. All persons who were expelled earlier, but have since re- entered illegally into Assam, shall be expelled. 8. Foreigners who came to Assam on or after March 25, 1971 shall continue to be detected, deleted and expelled in 39 Page 39 accordance with the law. Immediate and practical steps shall be taken to expel such foreigners. 9. The Government will give due consideration to certain difficulties express by the AASU/AAGSP regarding the implementation of the illegal Migrants (Determination by Tribunals) Act, 1983. 6. Constitutional, legislative and administrative safeguards, as may be appropriate, shall be provided to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people. 9. 1. The international border shall be made secure against future infiltration by erection of physical barriers like walls barbed wire fencing and other obstacles at appropriate places. Patrolling by security forces on land and riverine routes all along the international border shall be adequately intensified. In order to further strengthen the security arrangements, to prevent effectively future infiltration, an adequate number of check posts shall be set up. 2. Besides the arrangements mentioned above and keeping in view security considerations, a road all along the international border shall be constructed so as to facilitate patrolling by security forces. Land between border and the road would be kept free of human habitation, wherever possible. Riverine patrolling along the international border would be intensified. All effective measures would be adopted to prevent infiltrators crossing or attempting to cross the international border. JUDGMENT 10. It will be ensured that relevant laws for prevention of encroachment of government lands and lands in tribal belts and blocks are strictly enforced and unauthorized encroachers evicted as laid down under such laws.” 40 Page 40 37. Sarbananda Sonowal v. Union of India & Anr., (2005) 5 SCC 665, dealt with the Assam Accord in some detail in as much as The Illegal Migrants (Determination by Tribunals) Act, 1983 was under challenge in

various affidavits filed by the Union of India and the State of Assam regarding implementation of the Assam Accord. The following paragraphs from the judgment will show that whereas a part of paragraph 5 of the Accord has been fully implemented by enacting Section 6A, precious little has been done by the Union of India and the State of Assam to implement the other parts of the Accord. “2…………………. As a result of the students' movement and ensuing negotiations, a memorandum of settlement dated 15-8-1985 was entered into between All Assam Students' Union and the Union of India and the State of Assam, which is commonly known as “Assam Accord”. The terms of the Accord specifically provided that steps would be taken to detect and deport illegal migrants from Assam and it also contained a clause that “the Government will give due consideration to certain difficulties expressed by AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983”. The Accord further provided that foreigners who have entered into India after 25-3-1971 will continue to be detected, their names deleted from the electoral rolls and they will be deported from India. In pursuance of this provision, the Citizenship Act, 1955 was amended by Act 65 of 1985 and Section 6-A was inserted with the heading “Special provisions as to citizenship of persons covered by the Assam Accord”. It provides that the term “detected to be a foreigner” shall mean so detected under the Foreigners Act and the JUDGMENT 41 Page 41

4. The Union of India filed a counter-affidavit on 18-7-2000, which has been sworn by Shri Jatinder Bir Singh, Director, Ministry of Home Affairs. In para 7 of this affidavit, it was stated that a proposal to repeal the IMDT Act is under consideration of the Government of India. A copy of the reply given by Shri I.D. Swami, Minister of State in the Ministry of Home Affairs in the Rajya Sabha on 8-3-2000 has been filed as Annexure R-2 to the counter-affidavit, wherein the Minister had said that in the State of Assam Foreigners Tribunals under the Foreigners Act, 1946 are functioning for detection of illegal migrants, who had come to the State of Assam after 1-1-1966 and up to 24-3-1971 and the Illegal Migrants Determination Tribunals under the IMDT Act have been constituted for detection and deportation of illegal migrants, who had entered into India on or after 25-3-1971. The Hon'ble Minister had further stated that the Government is of the view that application of the IMDT Act to the State of Assam alone is discriminatory and a proposal to repeal the said Act is under consideration of the Government. A true copy of the latest status report filed by the Government in Writ Petition No. 125 of 1998, which has been filed seeking deportation of all Bangladeshi nationals from India, has been filed as Annexure R-1 to the counter-affidavit and paras 3 to 7 of the said status report are being reproduced below: JUDGMENT “3. Continuing influx of Bangladeshi nationals into India has been on account of a variety of reasons including religious and economic. There is a 42 Page 42 combination of factors on both sides which are responsible for continuing influx of illegal immigration from Bangladesh. The important ‘Push Factors’ on the Bangladesh side include:

The ‘Pull Factors’ on the Indian side include: (a) ethnic proximity and kinship enabling easy shelter to the immigrants; (b) porous and easily negotiable border with Bangladesh; (c) better economic opportunities; (d) interested religious and political elements encouraging immigration; 4. It is difficult to make a realistic estimate of the number of illegal immigrants from Bangladesh because they enter surreptitiously and are able to mingle easily with the local population due to ethnic and linguistic similarities. The demographic composition in the districts bordering Bangladesh has altered with the illegal immigration from Bangladesh. The districts of Assam and West Bengal bordering Bangladesh have recorded growth of population higher than the national average. The States of Meghalaya, Mizoram and Tripura have also recorded high rates of population growth. Illegal immigrants from Bangladesh have also been using West Bengal as a corridor to migrate to other parts of the country. JUDGMENT 5. The large-scale influx of illegal Bangladesh immigrants has led to large tracts of sensitive international borders being occupied by foreigners. This has serious implications for internal security. 6. The types of illegal migrants are as follows: (a) those who came with valid visa/documents and overstayed; 43 Page 43 (b) those who came with forged visa/documents; and (c) those who entered surreptitiously. 7. During talks between the Prime Ministers of India and Bangladesh in February 1972, the Prime Minister of Bangladesh had assured the return of all Bangladesh nationals who had taken shelter in India since 25-3-1971. Accordingly a circular was issued by the Government of India on 30-9-1972 setting out guidelines for action to be taken in respect of persons who had come to India from Bangladesh. According to this circular, those Bangladesh nationals who had come to India before 25-3-1971 were not to be sent back and those who entered India in or after the said date were to be repatriated.” 5. In para 12 of the counter-affidavit it is stated that “the basic objection of the petitioner is under consideration of the Central Government that the IMDT Act and the Rules made thereunder are not effective in comparison to the Foreigners Act, 1946, which is applicable to the whole country except to the State of Assam”. In para 18 of the counter-affidavit it is stated that the administrative powers in respect of the IMDT Act have been delegated to the Government of Assam under Section 21 of the aforesaid Act. The second sub-paragraph of para 18 and para 19 of the counter-affidavit are important and are being reproduced below: “It is further submitted that the detection/expulsion of illegal migrants under the IMDT Act, has been extremely dismal. According to the information furnished by the Government of Assam, the progress in respect of detection/expulsion of illegal migrants (those who entered Assam on or after 25-3-1971 up to 30- 4-2000) is as follows: JUDGMENT 1. Total number of enquiries initiated 3,10,759 2. Total number of enquiries completed 3,07,955 3. Total number of enquiries referred to the Screening 3,01,986 Committee 44 Page 44 4. Total number of enquiries made by the Screening 2,98,465 Committee 5. Total number of enquiries referred to IM(DT)s 38,631 6. Total number of enquiries disposed of by IM(DT)s 16,599 7. Total number of persons declared as illegal migrants 10,015 8. Total number of illegal migrants physically expelled 1481 9. Total number of illegal migrants to whom expulsion 5733 order served 10. Total number of enquiries pending with the Screening 3521 Committee 11. Total number of enquiries pending with the Tribunal 22,072 In reply to para 9, it is submitted that the Chief Minister of Assam had requested the then Prime Minister vide his letter dated 22-6-1996 regarding repeal of the IMDT Act. The Chief Minister again reiterated for scrapping the IMDT Act, vide his letter dated 31-7-1996 addressed to the Home Minister. This view has been reconfirmed by the State Government vide its message dated 23-4- 1998.” 11. The Union of India filed a counter-affidavit sworn by Shri Jatinder Bir Singh, Director, Ministry of Home Affairs, in reply to the additional affidavit of the State of Assam. It is averred therein that the matter of constitutional validity of the IMDT Act does not depend on political issues, but depends on facts and legal grounds. The relevant part of the opening part of the affidavit which has some relevance is being reproduced below: JUDGMENT “In this context, it is submitted that detection of illegal migrants, who belong to the same ethnic stock as Indians is not an easy task. However, large-scale illegal migrants from Bangladesh have not only threatened the demographic structure of the area but have seriously impaired the security of the nation, particularly in the present circumstances. The need for expeditious identification of illegal migrants is more pressing now than ever. It is not a matter of dealing with a religious or linguistic group. It is a question of identifying those who illegally crossed over the border and continue to live in India contrary to the Indian law and the Constitution. 45 Page 45

13. The petitioner has also filed a reply to the additional affidavit filed on behalf of the State of Assam, where besides reiterating his earlier pleas, it is averred that the Indian National Congress representatives from North-East have themselves alluded to the problem of illegal migration in the past. Reference is made to a report of the General Secretaries to the Seventh General Conference of the North-Eastern Congress (I) Coordination Committee dated 3-7-1992 wherein it was recorded as under: JUDGMENT “20.1 There are infiltrations — though it is a difficult task to examine the precise number. 20.2 The infiltrations are not only by minorities of Bangladesh but also from the majority Muslims. In absolute terms, the number of Muslims crossing into India is likely to be much larger than that of non- Muslims. 46 Page 46 20.3 An ideological support is given to the phenomenon by the Islamic Fundamentalists creating the vision of a larger country comprising Bangladesh and the entire North-East where its economic problems will be solved and security ensured.

1. Total number of enquiries initiated 3,86,249 2. Total number of enquiries completed 3,79,521 3. Total number of enquiries referred to the Screening 3,62,592 Committee 4. Total number of enquiries made by the Screening 3,59,733 Committee 5. Total number of enquiries referred to IM(DT)s 76,228 6. Total number of enquiries disposed of by IM(DT)s 21,169 7. Total number of persons declared as illegal migrants 11,636 8. Total number of illegal migrants physically expelled 1517 9. Total number of illegal migrants to whom expulsion 6159 order served 10. Total number of enquiries pending with the Screening 2859 Committee 11. Total number of enquiries pending with the Tribunal 55,059” JUDGMENT 38. The State of Assam has prepared a White Paper on the Foreigners th Issue dated 20 October, 2012. We propose to extract large portions of this 47 Page 47 paper only to show that even as on October 20, 2012, very little has been done to implement paragraphs 5(part), 6, 9 and 10 of the Assam Accord.

JUDGMENT Consolidated total of deported/pushed back illegal migrants on being declared as foreigners by IMD(T)s and Foreigners Tribunals collectively till July 2012- 1547+895=2442. 2.5.4. In the absence of a proper laid down procedure for deportation of illegal migrants between the Government of India and the Government of Bangladesh, it has become difficult to carry out deportations. As such, deportation of foreigners is mainly carried out through the 'push back' method. However, to overcome this problem, the Ministry of Home Affairs has recently prescribed a detailed proforma which has been circulated to all State Governments for collecting data of such foreigners who are presently being detained in detention centres. The matter of deportation of 48 Page 48 foreigners who have illegally entered into India needs to be taken up by the Government of India with the Government of Bangladesh so that a proper policy could be evolved and the process of deportation of such declared foreigners become easier and hassle free.

3.1. CLAUSE 6 JUDGMENT 3.1.2. A cultural centre called the Srimanta Sankardeva Kalashetra Complex has been established in 1992 at a cost of Rs 18.85 crores in Guwahati. Out of this, an amount of Rs 3.15 crores were spent during 1991-1995 and the remaining Rs 15.75 crores spent during 1996-2000. The Jyoti Chitraban Film Studio (Phase I &II) at Guwahati has been modernised at a cost of Rs 8.79 crores, of which Rs 4.79 crores were spent during 1998-2000 and Rs 4.20 crores were spent during 2001- 2003. The Phase III (Part I) of the modernisation of the Jyoti Chitraban Film Studio for Rs 10 crores has also been sanctioned by the Govt. of India in 2007. Against the release of Rs 10.00 crores by the Govt. of India, the State Govt. has 49 Page 49

3.1.4. The Government of Assam has also taken up the development of Historical Monuments and Archaeological Sites in Assam. During 2009-10, three Historical Monuments and Archaeological Sites have been taken up for Rs 2.00 crores and another 8 taken up for Rs 5.00 crores during 2010-11. An amount of Rs 5.00 crores has been provided during 2012-13 for taking up the development of more Historical Monuments and Archaeological Sites in Assam. 3.1.5. The Government of Assam has also taken up the protection, preservation and development of Sattras in Assam. During 2009-10, three Sattras were taken up for Rs 3.00 crores and during 2011-12, Rs 10.00 crores was provided for the protection, preservation and development of 87 Sattras in Assam. An amount of Rs 15.00 crores has been provided during 2012-13 for the protection, preservation and development of 85 Sattras in Assam. JUDGMENT 3.1.6. The Executive Council of the Jawaharlal Nehru University has approved the establishment of an Assamese Chair in the Centre of Indian Language, Literature and Culture Studies of the University in 2007. 3.4. CLAUSES 9.1 & 9.2 50 Page 50 3.4.1. BORDER FENCING & BORDER ROADS

3.4.1.2. Roads and Fences have been taken up for construction on the land border in three phases. In the Phase-I, construction of new roads and fencing was taken up in 1986 by Assam PWD and works completed in 2003. In the Phase-II, construction of remaining new roads and fencing was taken up by Assam PWD in 2000-01. Subsequently some parts of this Phase-II works were handed over to the National Building Construction Corporation (NBCC) by the Assam PWD. While Assam PWD has almost completed its works, that of NBCC are in progress. Under the Phase-III reconstruction of the fences constructed in Phase-I was taken up from 2006-07 through NBCC and NPCC (National Projects Construction Corporation). While NBCC has completed its Phase-III assigned works, works of NPCC are in progress. 3.4.1.3 A total of 228.118 km of new fencing was sanctioned under Phase-I&II, out of which, based on field conditions, the actual required length was 224.694 km. Against this 218.170 km of fencing (97.1%) has been completed. A stretch of 2.874 km could not be taken up at Lathitila-Dumabari area Karimganj district due to an international dispute. Works in respect of 150 meters of fencing are in progress with Assam PWD. These inter alia relate to approaches of two bridges and are targeted for completion within 31, December 2012. A length of 3.50 km in Karimganj Town could not be taken up earlier as it was within 150 metres of the Bangladesh border. It has now been decided to take up single fencing in this stretch in Karimganj Town, for which actions have been initiated by the NBCC. JUDGMENT 51 Page 51 3.4.1.4. A total of 251.558 km of new roads were sanctioned under Phase-I&II, out of which, based on field conditions, the actual required length was 246.073 km. Against this 234.153 km of roads (95.16%) have been completed. Assam PWD is yet to complete 60 metres of roads, which is targeted to be completed by 31st December 2012. NBCC is yet to complete 11.86 km of roads out of which 3.50 km relates to Karimganj Town, where work is yet to be started, and 8.36 km relates to Masalabari area in Dhubri district where work is in progress and scheduled to be completed this year. 3.4.1.5. A total of 144.961 km of reconstruction Phase-I fencing was sanctioned under Phase-III, out of which based on field conditions the actual required length was 134.727 km. Against this 121.707 km (90.34%) has been completed. NBCC has completed all works assigned to it. Works are in progress in respect of 13.020 km of fencing being constructed by NPCC, st which are targeted to be completed by 31 March 2013. The Government of India has sanctioned the Phase-III of the fencing project, entailing the use of concertina with double coil wire fencing for replacing the entire fencing constructed under Phase- I. Due to persistent efforts from Chief Minister, Assam, phase II fencing was designed to be double row where concertina with double coil wire has been used in contrast to Phase I fencing which was only single row. A copy of the DO letter written by Chief Minister, Assam to Union Home Minister in 2004 is placed as annexure 13. JUDGMENT 3.4.1.6. The period-wise achievement in respect of Phase I & II works done by Assam PWD since 1986 is given in annexure-14 and works done by all agencies is at annexure- 15 . A summary of the works done by all the agencies is given in the table below: Progress under Phase-I and Phase-II (Fencing) (in Kms)

52 Page 52

3.4.2. BORDER PATROLLING AND GUARDING 3.4.2.1. In order to strengthen border domination and to prevent any transborder crimes including infiltration and exfiltration, after 2001 in the Assam portion of the Indo- Bangladesh border 11 new BOPs have been established. More BSF troops have been deployed and water wing personnel have been made active on duty round the clock in the riverine border areas. At present the BSF and the state police are doing joint patrolling of the borders. A total of 6 battalions of BSF are 53 Page 53

3.4.3. COMMITTEE FOR PREVENTING INFILTRATION THROUGH THE UNPROTECTED RIVERINE AREAS 3.4.3.1 The actions taken for completing the fencing of the land border have been detailed above. Initiative has also been taken to ensure that infiltration is prevented from the river stretches and other non-feasible gaps across the river border. With this end in view the Governor of Assam constituted a Committee th vide the notification No. 1AA 56/2011/1 dated 12 September 2011 to examine and recommend ways and means for preventing infiltration through the unprotected riverine areas in the Assam-Bangladesh border. The Committee visited the riverine border areas of Dhubri district in October 2011 and the riverine border areas of Karimganj and Cachar districts in November 2011. During these visits extensive discussions were held with BSF and other local authorities. Various technical options of preventing infiltration through such riverine areas are presently being considered. JUDGMENT 3.4.4. FLOOD LIGHTING 3.4.4.1. To enable proper vigilance of the international border during the night, action has been taken to provide floodlighting all along the Assam-Bangladesh border. Floodlighting works are being implemented by the CPWD in the Assam. These works are divided between the Guwahati sector and the Silchar sector and the total length comes to 213.74 kms. The Guwahati sector comprises a stretch of 37.60 km in Dhubri sub-sector 54 Page 54

3.5. CLAUSE 10 3.5.1. Land administration in the Protected Belts and Blocks in Assam is carried out as per provisions of Chapter X of the Assam land and Revenue Regulation 1886 and Rules framed there under. Steps are taken for removal of encroachment on a continuous basis. 4.2 PROGRESS IN DETECTION AND DISPOSAL OF CASES 4.2.1. There has been a substantial increase in the number of cases detected during the last 11 years. The disposal of cases also has shown a significant increase during this time period. The following table provides a comparative picture of the cases registered and disposed of by Foreigners Tribunal & IMDT: FOREIGNERS’ TRIBUNAL AND IMDT

4.2.2. It may be seen that the progress in 10 years time period from 2001-2012 far exceeds the progress made during the 15 years time period from 1985 to 2000. Keeping in view that the disposal mechanism is a judicial process and also subject to judicial review, the disposal of cases has not been able to keep pace with the number of cases registered in the Foreigners Tribunals. Therefore, there has been a large cumulative pendency of cases in the Tribunals which needs to be addressed through special measures. 55 Page 55 4.3. STRENGTHENING OF MACHINERY FOR DETECTION AND DEPORTATION

4.3.2. The ex-servicemen employed under PIF scheme have been given the status of regular government servants so that they do not suffer from uncertainties of employment. Government has paid more than Rs 22 crores as arrears to these ex-servicemen deployed since 1988 during 2011-2012. 4.3.3. The number of Foreigner's Tribunals which was hovering between 4 and 11 from 1964 to 2005 increased to 36 Tribunals in 2009. All of them have been made functional. Standard staffing pattern and service order governing service conditions of FT staff have been notified. Proposal for providing additional staff depending on workload is submitted to MHA for approval. Power of appointment of vacant staff position has been delegated to Member FT based on a transparent selection process by a board headed by Deputy Commissioner. JUDGMENT 4.3.4. New terms and conditions have been issued for appointment of Members so as to make the service conditions attractive. The upper age limit has been relaxed from 65 to 67 years, remuneration has been made more attractive besides providing other amenities like vehicle, orderly peons etc. This has led to significant reduction in vacancy position of Judicial members of Foreigners Tribunals - 33 members are in place and other 4 applications are in process to achieve 100 % occupancy. It is noted that till February 2011 there were as many as 13 vacancies of Members, Foreigners Tribunal. The Government of Assam has also received 7 nominations from the 56 Page 56

ANNEXURE - 5 (Copy) th Copy of Letter NO.PLB.171164/34 dated Shillong, 25 June, 1966 from Shri S.P. Hazarika, A.C.S., Deputy Secretary to the Government of Assam, Political Department, to the Inspector General of Police, Assam, Shillong. Subject: Procedure for deportation of Pak infiltrants I am directed to say that a review of the latest position of deportation of Pak infiltrants shows that the total number of Pakistani infiltrants in our State as determined by the Registrar General of Census In 1961 was 2,20,691. It appears that since 1961 till 31-5-66, 2,15,794 infiltrants have been detected and notices for deportation were served or prosecution was started against 2,15,355. Out of these, according to the figures confirmed by the Check Posts, 1,43,438 have already left the country. About 28,999 of the remaining number on whom notices have been served have preferred appeal. It may also be assumed that about 25,000 persons on whom deportation notices were served have left by routes other than by the check posts. The number of infiltrants who have been detected but have not left the country would come to about 40,000 plus the number resulting from natural increase, new infiltration and re-entry of deported the total number of Pakistani infiltrants on the basis of 1961 census who are yet to be detected comes to about 5,000 or so. To this we have to add the number resulting JUDGMENT 57 Page 57

(1) A person with Pak passport overstaying illegally in India; (2) A person already deported but has re-entered India illegally; and (3) A new infiltrant entering India. In these categories of cases, after service of deportation notice, the present procedure of Tribunal will follow. You are, therefore, requested to issue necessary instructions of the points mentioned above to all concerned under intimation to Government. These instructions are intended to make our officers cautions the matter of detection and deportation and should not be interpreted to mean any relaxation in the matter of vigilance, detection and deportation of Pakistani infiltrants. JUDGMENT SECRET MemoNo.PA(VII)/62/200 Dated, Shillong the 29th June, 1966. Copy to Shri H.K. Bhattacharyya, IPS (AIl D.ls. G/Ss. P) for information and necessary action. Sd/- B.K. Barua, 58 Page 58 Inspector General of Police, Assam. 39. It will be seen that the number of tribunals set up is abysmally low

is interesting to know is that whereas almost 1,50,000 persons were deported between 1961 to 1965 under The Immigrants (Expulsion of Assam) Act, 1950, the number of deportations from 1985 till date is stated to be a mere 2,000 odd. Even these deportees are mostly if not all “push backs” which results in the same deportees coming back post deportation from a border which is completely porous. 40. It will be seen that the Assam portion of the border with Bangladesh is 267 Kms. Out of which 44 Kms. are riverine. We are given to understand JUDGMENT that the entire border between India and Bangladesh is roughly 4000 Kms. The White Paper shows that large portions of the border with Assam are yet to be fenced with double coil wire fencing, making the border an easy place to cross. Also, we are given to understand that most parts of the border with West Bengal and other North-Eastern States are also porous and very easy to cross. 59 Page 59 41. We are at loss to understand why 67 years after independence the Eastern border is left porous. We have been reliably informed that the entire Western border with Pakistan being 3300 Kms. long, is not only properly

42. In the light of the above, we have considered the necessity of issuing appropriate directions to the Union of India and the State of Assam to ensure that effective steps are taken to prevent illegal access to the country from Bangladesh; to detect foreigners belonging to the stream of 1.1.1966 to 24.3.1971 so as to give effect to the provisions of Section 6(3) & (4) of the Citizenship Act and to detect and deport all illegal migrants who have come to the State of Assam after 25.3.1971. Before issuing any such directions, we had thought it proper to require the Union as well as the State of Assam to state, on affidavits, their respective stands in the matter and also their JUDGMENT suggestions, if any. Both the Union as well as the State of Assam have responded by filing affidavits sworn by duly authorized officials. We have taken note of the contents of the said affidavits which disclose that both the Union and the State are broadly in agreement in respect of the steps that are required to be taken as well as the action taken till date and further the measures that are required to be taken in the future. It will be appropriate if the relevant contents of the affidavit filed by the Union are extracted below. 60 Page 60 “5(VIII). Effective Border guarding to check and control illegal immigration (i) Intensive 24x7 patrolling by the Border Security Force (BSF) along the Indo-Bangladesh border.

(iii) Persons who are intercepted at the international border will be sent back then and there to Bangladesh. (iv) Illegal infiltrators will be interrogated by the State Police in the presence of BSF personnel who have managed to enter into the territory of the country for identification of routes they had taken for entering into the country. Security will be further strengthened on such routes/areas. BSF personnel, if any, found to be involved in helping illegal infiltrators for crossing international border will be punished as per law-. BSF will keep close vigil on the international border through its intelligence branch with immediate effect. (v) Besides, intelligence agencies will be geared up with immediate effect for keeping close vigil along the international border and also reporting to the concerned authorities including BSF on illegal infiltrations. JUDGMENT (vi) Border fencing: A project worth Rs.6337 crore has been sanctioned for fencing 3326 km of Indo-Bangladesh border including restoration of damaged fence (total length 4096.7 km of the border of which 2980.7 km. is land border and 1116 km. is riverine border [the length of riverine border keeps varying from season to season]). Out of 3326 Km, fencing has been completed in 2828 km. Construction work of fencing is in progress in 78.80 km. which is likely to be completed by May 2016. In 102.4 km fencing is not feasible due to low-lying/difficult hilly terrain. Work in 24.2 km is at estimate/revised estimate stage. Due to boundary issues which are yet to be resolved between India and 61 Page 61

JUDGMENT (vii) Construction of roads: To facilitate proper patrolling by the BSF along Indo-Bangladesh border, a project for construction of road has been undertaken. Construction of 4379 km length of road along Indo-Bangladesh border has been sanctioned. Out of which 3769.9 km construction work has been completed and work is in progress in 160.23 km which is likely to be completed by May 2016. In 222.07 km construction work is not feasible due to hilly terrain/low-lying areas. Work in 52.153 km is at estimate/revised estimate stage. In 174.65 km work cannot be 62 Page 62 started due to various reasons mainly delay in land acquisition by the State Governments concerned. Matter has been taken up with the State Governments of Meghalaya, Tripura, West Bengal and Assam for early acquisition of land for construction of roads. Matter is being followed up with them regularly. (viii) Installation of Flood lights along Indo-Bangladesh border: Further, a project worth Rs. 1327 crore for installation of flood lights along the border to keep close vigil at night has been started in 2840 km along Indo-Bangladesh border areas. Work has been completed in 1874 kms. Work is in progress in 330 km. which is likely to be completed by May 2016. Installation of flood lights is not feasible in 219.4 km due to low-lying area/difficult hilly terrain. It may be mentioned that the flood lights can be installed only after construction of fence and roads along the border. Therefore, the work of floodlights in about 416.6 km. could not be started due to pending fence work. As stated above, the matter has been taken up with the State Governments of Meghalaya, Tripura, West Bengal and Assam for early acquisition of land. Matter is being followed up with them regularly. (ix) Initially, 802 Border Out Posts (BOPs) were set up along Indo- Bangladesh border for effective guarding of the border. In order to reduce the gap between the two BOPs, 383 additional BOPs have been sanctioned. Out of these, 65 BOPs have been established. Work is going on in 78 BOPs which is targeted to be completed by December, 2016. For the remaining BOPs, work can be started only after the acquisition of land by the State Governments concerned. Matter has been taken up with the State Governments of Meghalaya, Tripura, West Bengal and Assam for early acquisition of land for construction of BOPs. Matter is being followed up with them regularly. JUDGMENT (x) BSF has deployed 28 numbers of speed boats (single engine), 40 numbers of rigid inflatable speed boats, 48 numbers of aluminium country boats, 2 double engine speed boats, 58 engine fitted country boats along Indo-Bangladesh border (Assam sector) for guarding of riverine areas. In order to make effective guarding of riverine international border additional 10 double engine speed boats and five 20 meters medium vessels will be 63 Page 63 procured within six to 12 months. Effective guarding of riverine areas in other sectors are also being done by the BSF. (xi) It may be mentioned that the timelines indicated above, for the

(xii) Regular village co-ordination meetings are being organised by the field commanders of BSF to sensitise the border population. Further, effective action will be taken for sensitising the villagers living along the border areas, particularly in case any new person is seen in the village, they should report the matter to the local police chowki. Besides, village defence parties shall also be activated within one month along the international border to keep close vigil in this regard who will report to the local Police Stations. (xiii) 3153 Security personnel provided to the State of Assam under Prevention of Infiltration of Foreigners (PIF) scheme to act as second line of defence and assist the BSF to check the illegal infiltration from Bangladesh. The State of Assam will be advised to use and deploy the PIF personnel to act effectively with immediate effect. JUDGMENT (xiv) 4 additional battalions of BSF will be raised in the next financial year 2015-16 for deployment along the international Indo Bangladesh border. Out of 4 BSF battalions, one each will be deployed along Indo-Bangladesh border (Assam sector and West Bengal sector), remaining two will be as training battalions.” 43. In addition to what has been extracted above, the Union, in the affidavit filed, has also stated that for the purpose of detection of illegal 64 Page 64 migrants 500 police units/task force will be activated in the State within one month.

Assam, 64 additional Tribunals have been sanctioned in June, 2013. The affidavit of the State of Assam indicates that steps are underway for making the aforesaid Tribunals functional. 45. Insofar as the mechanism of deportation of illegal migrants after they are detected to be illegal migrants is concerned, paragraph 25 of the affidavit of the Union which deals with the said aspect of the matter may also be noticed: “ 25. It is submitted that the existing mechanism/procedure for verification of nationality inter alia include that State Government provides details of declared person in a prescribed format indicating full details/contact address in Bangladesh including photographs to the Ministry of Home Affairs. Such cases received from the State Government are referred to the Ministry of External Affairs for taking up the matter of verification of nationality with Bangladesh authorities through diplomatic channel. The Ministry of External Affairs refers such cases to Bangladesh authorities. Such cases are investigated by the Bangladesh Home Ministry and they send their report to Bangladesh Foreign Ministry. In turn they intimate Indian Ministry of External Affairs about the nationality verification or status of such persons. If some of the cases are not confirmed by them, in that event we request the Bangladesh authorities from the Bangladesh High Commission JUDGMENT 65 Page 65

46. On an overall consideration of the immediate dimensions of the issues and the potential that the same have for the future we issue the following directions under Article 142 of the Constitution of India. JUDGMENT I. Border fencing, Border Roads and provision for flood lights The Union will take all effective steps to complete the fencing (double coiled wire fencing) in such parts/portions of the Indo-Bangla border (including the State of Assam) where presently the fencing is yet to be completed. The vigil along the riverine boundary will be effectively maintained by continuous patrolling. Such part of the international border which has been perceived to be inhospitable on account of the difficult 66 Page 66 terrain will be patrolled and monitored at vulnerable points that could provide means of illegal entry. Motorable roads alongside the international border, wherever incomplete or have not yet been built, will be laid so as to

will also be provided while maintaining the present arrangements. The completed part of the border fencing will be maintained and repaired so as to constitute an effective barrier to cross border trafficking. The progress achieved at the end of 3 months from today as against the position on the ground mentioned in the affidavit of the Union extracted above will be monitored by this Court and, depending on what is revealed upon such monitoring, further directions including a definite time schedule for completion of the works relating to border fencing, border roads and flood lights may be made by this Court. JUDGMENT II. Foreigners Tribunals The Gauhati High Court is requested to expedite and to finalise the process of selection of the Chairperson and Members of the Foreigners Tribunals, if required in phases, depending on the availability of officers opting to serve in the Tribunals. Within 60(sixty) days of the selection being finalized by the Gauhati High Court, the State of Assam will ensure that the concerned Foreigners Tribunal become operational. 67 Page 67 The Chief Justice of the Gauhati High Court is requested to monitor the functioning of the Tribunals by constituting a Special Bench which will sit at least once every month to oversee the functioning of the Tribunals.

so necessary, the Court will entrust such monitoring to be undertaken by an JUDGMENT empowered committee which will be constituted by this Court, if and when required. 48. Insofar as Writ Petition (C) No. 274/2009 is concerned, we are of the view that on and from the date of this judgment the following time schedule should govern the work of updating of the NRC in Assam so that the entire updated NRC is published by the end of January, 2016. 68 Page 68 1. Preparatory work such as selection of vendor system (system integrator); development by system integrator; appointment of staff and training etc. has already been directed to be completed by the end

69 Page 69 49. All the cases be listed in the last week of March, 2015 to take note of the progress of implementation of the above directions. …………..………………….J. (Ranjan Gogoi) …………..………………….J. (R.F. Nariman) New Delhi; December 17, 2014. JUDGMENT 70 Page 70