Vol. 18(2) Student Bar Review 2006 I. Backcrounp To Tue Case ‘The general legislation on the area of immigration is the Foreigners Act, 1946. This Act provides inter alia that the “burden of proof” would lie on the person alleged to be a foreigner to prove that he is not.' The I.M.D.T. Act was enacted to deal with the peculiar and large scale problem of illegal immigration in ‘Assam post 1971.? This Act was meant to expedite the process of identification and deportation of illegal immigrants.? Ironically, however, the Act ameliorated the position of illegal immigrants not only by shifting the burden of proof back on the authorities seeking to prove a person to be an illegal immigrant,‘ a virtual impossibility given the surreptitious manner in which illegal immigration takes place, but also by making various other provisions which made deportation of illegal immigrants more difficult.s As a result of these lax provisions, the number of deportations under the I.M.D.T. Act was minuscule despite the very visible change in the linguistic and religious demography of Assam which clearly pointed to clandestine immigration from Bangladesh.* The matter of Bangladeshi infiltration came up before the Supreme Court via a Public Interest Litigation (‘P.LL”)” The Supreme Court expressed anguish at this infiltration and directed the Union of India and the concerned states to file a status report on the issue. It also expressed hope that the governments concerned would take effective steps to tackle the issue. Later, a writ petition was also filed by way of public interest litigation for declaring certain provisions of the I.M.D.T. Act as ultra vires the Constitution of India, null and yoid, and consequent declaration that the Foreigners Act, 1946 and the Rules made thereunder shall apply to the State of Assam.* * § 9, Foreigners Act, 1946; Union of India v. Ghaus Mohammed, A.I.R. 1961 S.C. 1526. * Preamble, I.M.D.T. Act. 2 Id. + There is no provision in the I.M.D.T. Act analogous to § 9, Foreigners Act, 1946. Moreover, Rule 4, Illegal Migrants (Determination by Tribunals) Rules, 1984 provides for a list of factors that are to be ascertained by the inquiring authority before action can be taken against an alleged “illegal immigrant.” 5 These include inter alia § 8(1), § 8(2) and § 14, LM.D-T. Act. * Sarbananda Sonowal v. Union of India, A.LR. 2005 S.C. 2920, 2929. 7 All India Lawyer’s Forum for Civil Liberties v. Union of India, (1999) 5 S.C.C. 714 * Sarbananda, supra note 6, at 2924. 96Sarbananda Sonowal v. Union of India This was followed by a period where in light of recommendations made by the Law Commission? efforts were being made to repeal the LM.D.T. Act.* But due to political vicissitudes, namely a change in the government at the Centre, the decision to repeal the I.M.D.T. Act was reconsidered, forcing the court to adjudicate on this issue. If. Decision Or THE SuPREME CouRT ‘The Supreme Court struck down the Act on two main grounds: violation of Articles 14 and 355. It also touched upon certain other issues, viz. the purported compatibility of the Act with Article 21 and the rights of illegal aliens. Each of these issues will be analyzed in detail and an attempt will be made to put forth some additional propositions which could have added coherence to the decision of the Court. A. Article 355 This Article, which casts a duty upon the Centre to protect the States against “external aggression and internal disturbance”, is one of the two pillars on which the decision of the Supreme Court is based. The argument of the Court, drawing from U.S., U.K. and international law, was that the word “aggression” is to be read in a wide manner. The Court said that the word “aggression”, used deliberately by our founding fathers in contradistinction to the word “war”, would include an “invasion of unarmed men in totally unmanageable proportion (if it) were to not only impair the economic and political well-being of the receiving victim State but to threaten its very existence.” The Court further relied on the report of the Governor of Assam which said that illegal immigration was the primary cause for attendant problems like insurgency and ethnic strife in the State of Assam." Thus, in essence, the argument made by the Court was that by passing the ILM.D.T. Act, which failed to check illegal immigration, the Union failed in its duty to protect the State of Assam against “external aggression and internal disturbance” warranting that the said legislation be struck down for being ultra vires Article 355: + Law Comission oF Inpia, 175™ Reroxt (2000). As the nomenclature suggests, this report proposed synchronization and revamping of the law on the issue of illegal immigrants. One of the important recommendations was the repeal of the ILM.D.T. Act. See I.M.D.T. (Repeal) Bill, 2003. ® Sarbananda, A.LLR. 2005 S.C. 2920, 2946-2949. “ Id. at 2949. 97Vol. 18(2) Student Bar Review 2006 The question that needs to be analyzed is whether Article 355 was envisaged to be used in such situations even discounting the semantic overstretch" in construing the word “aggression.” ‘The intention behind Article 355 was to enable the Centre to interfere in the affairs of the States on the limited grounds and in the limited circumstances mentioned thereunder." The idea was to provide a legal basis to the Centre to interfere in what would otherwise be the domain of the states in exceptional circumstances. Further, it has been held that Art. 355 is not an independent source of power for interference with the functioning of the State Government, but is in the nature of justification for the measures to be adopted under Articles 356 and 357."* In other words, “Article 356 confers a power to be exercised by the President in exceptional circumstances to discharge the obligation cast upon him by Article 355.”" Also, Article 355 is to be used as one of the measures except when it becomes inevitable that Article 356 be invoked." It is only when Article 355 is looked at in this context that one realizes the implications of what the Court has done and the paradigm shift that it has (perhaps unwittingly) scripted. If Articles 355 and 356 are read together as all Supreme Court judgments on this point” state, then the striking down of the I.M.D.T. Act and the order of the Court making the Foreigners Act, 1946 applicable to the State of Assam based on the Governor's Report goes against the ratio of S.R. Bommai v. Union of India” In Bommai a very limited extent of judicial review to Article 356 situations has been allowed. This would then necessarily be true for Article 355 as well, as the two Articles are inextricably intertwined. If the rationale in Sarbananda is accepted as correct, it would not be difficult then to envisage a situation where the Supreme Court could order the Centre to physically intervene in case of some “internal See A.G. Nookamt, ConsTTruTionAt. QuesTions 18 INDIA 272 (2002), which argues for a narrow construction of Article 355. “ DX Constrruenr Assematy Desarzs 133 (1950). It must be noted that similar provisions do exist in the U.S. Constitution (Article 4, § 4) and the Australian Constitution (§ 119). However under those Constitutions, the Centre can intervene only on an application by the State Executive. ‘* Rameshwar Prasad v. Union of India, MANU/SC/0399/2006; SaRxania ET AL., RerorT ‘OF THE COMMISSION ON THE InvTER-STATE RELATIONS 169 (1984). ‘S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1. (As per Kuldip Singh, J.) Kuldip Singh, J. in Bommai quoted with approval in Re President, (2002) 8 S.C.C. 237. “id. 'S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1; Re President, (2002) 8 S.C.C. 237; Rameshwar Prasad v. Union of India, MANU/SC/0399/2006. ® (1994) 3 S.C.C. 1. 3 3 98Sarbananda Sonowal v. Union of India disturbance” or even declare emergency in a state. This would clearly be an undesirable infringement on what is correctly the domain of the executive. Thus, it is submitted that the striking down of the ILM.D.T. Act on grounds of violation of, Article 355 is per incuriam. The Supreme Court, by focusing on the law and order aspects of the immigration problem has probably given state governments some leeway to pass legislation on issues arising out of illegal immigration on the ground that it leads to “disturbance of public order.”* B. Article 14 ‘The second ground for striking down the ILM.D.T. Act was that it was ultra vires Article 14 of the Constitution. Here, the Supreme Court applied the standard two pronged test used as a touchstone to measure the vires of any legislation qua Article 14: Is the classification rational and based on intelligible differenti . has the basis of differentiation any rational nexus with its avowed policy and object?” Applying this test to the I.M.D.T. Act, the Court held that the impugned legislation did not meet the criterion. Comparing the Foreigners Act, 1946 with the I.M.D.T. Act, the Court observed that under the I.M.D.T. Act, the illegal immigrant in Assam had far greater rights as compared to an illegal immigrant anywhere else in the country. Moreover, the Court held that since the object of the Act was to expedite the process of identification and deportation of illegal immigrants, the classification made whereby I.M.D.T. Act is made applicable only to the State of Assam had no rational nexus with the policy and object of the Act, it was violative of Article 14. The Act would have been valid if the I.M.D.T. Act had more stringent provisions than the Foreigners Act, 1946. While a puritanical approach towards fundamental rights including Article 14 has since long been abandoned; the issues are (a) whether the Act could be struck down within the existing framework of Article 14? and if yes, (b) whether the court could have made its reasoning more cogent? ‘The reasoning of the Court can be reduced to the proposition that since the immigrants in Assam were treated more leniently than those elsewhere in the country, the law was violative of the right to equality of the people of Assam. There are conceptual problems with this approach as the Court did not recognize ™ Schedule 7, List II, Entry 1, Constrruion oF Inow, 1950. ” The Court quoted Gajendragadkar, J. in Kangshari Haldar v. State of West Bengal, ALR. 1960 S.C. 457. There are numerous other cases laying down the same principle. 99Vol. 18(2) ‘Student Bar Review 2006 any positive right that the people of Assam had on the basis of which the legislation was struck down. Moreover, the right to expel a foreigner is vested only with Central Government. The difficulty would not have arisen if the right to preservation of language and culture had been recognized as argued hereunder as then the right to equality could have been juxtaposed with the right to culture of the Assamese people. The other approach that the Court could have taken is holding the legislation to be arbitrary or unreasonable under the “new approach to equality as under this approach, any arbitrary or unreasonable action is per se discriminatory.” C. Article 29(1) ‘The Court insinuated that Article 29(1) could have possibly been applied given the grave effects of illegal immigration on Assamese “language, script and culture” but refused to adjudicate on the issue for inadequacy of facts. Perhaps, the Court could have given this approach deeper consideration. Under the ubiquitous Article 21, the Supreme Court has, on more than one occasion observed that “life in its expanded horizon includes everything that gives meaning to a person's life including culture, heritage and tradition along with dignity of a person." Moreover, the intention behind Article 29(1) has been to ensure that no law which would adversely affect a minority in maintaining its culture and language is passed.”” These rights are also increasingly in vogue not only amongst academicians but also amongst lawmakers as well."* A combined reading of Articles 21 and 29(1) would have provided sufficient ground to strike down the ILM.D.T. Act without leading to the logical problems that have arisen out of the approach taken by the Court. * Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta, ALR. 1955 S.C. 367. ™ E.P. Royappa v. State of T.N., (1974) 4 S.C.C. 3. °° ALL. Kalra v. Project and Equipment Corporation, (1984) 3 S.C.C. 216. v. Idol of Sri Swaminathswami Swaminathswami Thirukoil, (1996) (1996) 5 S.C.C. 125; Ramsharan 549. Autyanuprasi v. Union of India, A.LR. 1989 S. © TI Consrrrumr Assesaty Desates 891-897 (1950). Article 22, Universal Declaration of Human Rights, G.A.Res. 217, U.N. G.A.O.R., pmbl., U.N.Doc. A/811 (1948); Article 27, International Covenant on Civil and Political Rights, Mar. 23, 1976, pmbl., 999 U.N.T.S. 172. More recently, § 31 of the Constitution of South Africa recognizes these rights underlining their importance Fora theoretical perspective on group rights, see Wu. Kymuicka, Mucnicucturat Crmzensuir: ‘A LineeaL Tueory oF Mivonrty Richt (1996). 100Sarbananda Sonowal v. Union of India D. Rights of Illegal Aliens It was essential that the Court discussed the rights of aliens especially in the context of international law given the Constitutional imperative requiring the State to “foster respect for international law.” The Court, looking at this aspect, in some detail correctly concluded that “States have a right to expel aliens.” But States can, through international obligations or national law grant certain additional rights to aliens.” In India, aliens are also protected under Article 21. On this basis, it was averred that since the I.M.D.T. Act laid down a “fair procedure”, it satisfied the criterion under Article 21 and thus could not have been struck down. This argument could have been easily rejected on the ground that although Articles 14, 19 and 21 are to be read together,® it would be preposterous to presuppose that any legislation violating Article 14 would have to necessarily violate Article 21 as well. But the Supreme Court took the opportunity to comment on the vires of the Foreigners Act, 1946. It used international law sources to adumbrate to the right of States to expel illegal immigrants and came to conclusion that the illegal immigrants do not have any legal rights. With respect, the Supreme Court's reasoning in this regard is skewed. ‘Once it is accepted that Article 21 applies to foreigners also, the mandate of those seeking to defend the validity of the Foreigners Act,"1946 would be to show that its provisions do not violate Article 21 rather than adverting upon the right of states to expel illegal aliens. Though it has been held that the deportation of illegal immigrants under the Foreigners Act, 1946 is not violative of Article 21; it must be pointed out that the biggest difference between the I.M.D.T. Act and the Foreigners Act, 1946 is on the question of burden of proof which had not been addressed by the Supreme Court before. It is submitted that this cannot be a ground for challenging the Foreigners Act, 1946 as the Supreme Court has, on numerous occasions held that there is no fundamental “right to presumption of » Article 51(c), Constitution oF INo1A, 1950; Giani Bakshish Singh v. Government of India, A.ILR. 1973 S.C. 2667. Louis De Radt v. Union of India, A.LR. 1991 S.C. 1886; Khudiram Chakma v. Union of India, A.LR. 1994 S.C. 1461; Orrenuemen, InrexnaTionaL Law 940 (Robert Jennings and Arthur Watts eds., 9" ed. 1996). 3 Mavcoum Sitaw, IerernaTionat, Law 736 (4" ed. 2001). » Chairman, Railway Board v. Chandrima Das, A.IR. 2000 S.C. 988. »® Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597. % Louis De Radt v. Union of India, A.LR. 1991 S.C. 1886; Khudiram Chakma v. Union of India, ALR. 1994 S.C. 1461. 101Vol. 18(2) ‘Student Bar Review 2006 innocence” under Article 21. Moreover, strict liability is the norm in statutes dealing with illegal immigrants even in other liberal democracies.» III. Conciusion Under the power conferred by section 3 of the Foreigners Act, 1946, an Order has been passed empowering the Central Government to create a special tribunal to deal with foreigners in Assam.” This matter is now sub judice.* While this Order does not replicate the provisions of the I.M.D.T. Act, it is certainly more “immigrant friendly” than the existing law.» This Order goes against the spirit of the decision in Sarbananda, Constitutional propriety would have dictated that the Foreigners Act, 1946 ought to have been applied to Assam in toto in its existing form. To conclude, it was important for the Supreme Court not only to give a strong and clear policy directive but also to ensure that this was founded on constitutional principles and ideals envisaged by our founding fathers. Unfortunately, the Supreme Court, while ensuring the former, has not, it is submitted, based its decision on cogent legal/constitutional postulates. This could have been done by (a) avoiding the use of Article 355; (b) using Article 14 in a more nuanced and conceptually sound manner; (c) asserting that the right to culture and language of the Assamese people as guaranteed under Articles 21 and 29(1) has been violated; and (4) clearly showing that the right to life of the immigrants is not violated by the application of the Foreigners Act, 1946. % K. Veeraswami v. Union of India, (1991) 3 8.C.C. 655; P.N. Krishnalal v. Govt. of (1995) S.C.C. (Cri.) 466. » § 8, UK. Immigration Act, 1971; § 291 and § 318, Immigration and Nationality Act of USA; Immigration and Refugee Protection Act, 2001 of Canada; § 188 of the ‘Act, 1958 of Australia. The underlying principle is that certain facts are ithin the knowledge of a person should prove it and not the party who avers the negative. » The Foreigners (Tribunals for Assam) Order, 2006, * SC summons Centre over amendment to Foreigners Act, available at ‘www. timesofindia.indiatimes.com/articleshow/1475315 (last visited April 23, 2006). » Foreigners (Tribunal) Order, 1964. 102