The Supreme Court on Tuesday declared as unconstitutional a Central government notification that gave a new life to the quashed IMDT Act by shifting the onus on the complainant to prove that a particular person is a foreigner under the Foreigners Order 2006.
Allowing the petitions filed by BJP MP Sarbananda Sonowal and one CC Deka, a Bench of Justice SB Sinha and Justice PK Balasubramanyan quashed the Foreigners (Tribunal) Amendment Order 2006 and Foreigners (Tribunal) for Assam Order, 2006. It also imposed a fine of Rs 25,000 on the government.
The Bench ordered the government to constitute within four months sufficient number of tribunals under the Foreigners (Tribunal) Order 1964 to effectively deal with the cases of Bangladesshi migrants illegally residing in Assam.
The 1964 order provided for determination of illegal immigrants through tribunals. After the SC quashed the IMDT Act in 2005, the Centre amended the 1964 order making it inapplicable to Assam.
Later, the Assam order was brought in which shifted the onus on the complainant to prove that a particular person was a foreigner.
The Bench asked the government to implement its directions on an earlier petition filed by Sonowal, wherein it had quashed the controversial Illegal Migrants Determination by Tribunals (IMDT) Act.
Terming it as an arbitrary exercise of power, the Bench said "it appears that the 2006 order has been issued just as a cover up for non implementation of the directions of this Court issued in Sonowal-I."
The court said, "In the face of the clear directions issued in Sonowal-I, it was for the authority concerned to strengthen the Tribunals under the 1964 Order and to make them work. Instead of doing so, the 2006 Order has been promulgated."
Using some harsh words for the government it referred to its earlier order wherein it had discussed how "uncontrolled immigration into the northeastern states posed a threat to the integrity of the nation".
The court said what was called for was a strict implementation of its earlier directions to ensure that illegal immigrants were sent out of India. In the face of government’s silence on this vital question, the court wondered why it was not done.
"If the respondents (Centre and Assam) have found the 1964 order unworkable in the Assam, they have simply refused to enforce that order in spite of directions in that behalf by this court," it said.
The court said the 2006 order was clearly unnecessary in the light of the Foreigners Act, 1946 and orders made thereunder and the directions issued by it in Sonowal-I last year.
The court said the impugned notification "does not serve the purpose sought to be achieved by the 1946 Act or the Citizenship Act and the obligations cast on the Centre under Article 355 of the Constitution to protect the nation from external aggression and internal disturbance.
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