[Case Brief] Assam Sanmilita Mahasangha & Ors V. Union of India & Ors

Fundamental rights cannot be bound by the chain of limitation

Case name:Assam Sanmilita Mahasangha & Ors. Versus Union of India & Ors
  Case number/Citation:  WRIT PETITION (CIVIL) NO. 562 OF 2012
  Court:  Supreme Court of India Civil Original Jurisdiction
  Bench:  Justice Ranjan Gogoi Justice R.F Nariman
  Decided on:  December 17, 2014
Relevant Act/Sections:  Section 6A of Citizenship Act, 1930 Illegal Migrants Determination by Tribunals Act, 1983

BRIEF FACTS AND PROCEDURAL HISTORY

  1. The case is set in the background of massive influx of immigrants from Bangladesh into Assam after the 1971 war. This led to mass agitations in 1980s by the All Assam Students Union (AASU) and Assam Gana Sangram Parishad (AAGSP). In 1983, the Parliament enacted the Illegal Migrants (Determination by Tribunal) Act (IMDT Act). The IMDT Act laid down the procedure to detect illegal immigrants from Bangladesh and expel such foreigners from Assam.
    1. This Act was applicable to only Assam, while the Foreigners Act, 1946 was applicable to all the other states of India. In 1985, the Assam Accord was signed between the Government and leaders of the AASU and AAGSP to end years of rioting and protests against the massive migration. Section 6A of the Citizenship Act, 1955 was inserted in 1985 as a result of the Assam Accord.
  • It classified ‘illegal’ immigrants of Indian origin who came into Assam from Bangladesh into three groups: those who came into the state before 1966; those who came into the state between 1966 and 25th March, 1971 (the official date of the commencement of the Bangladesh War); and those who came into the state post 25th March, 1971. The first group (pre-’66) was to be regularised, i.e. given citizenship of India. The second group (’66 – ’71) was to be taken off the electoral rolls, and regularised after ten years. The third group (’71- onwards) was to be detected and expelled in accordance with law.
    • The Illegal Migrants Determination by Tribunals Act was challenged before the Supreme Court in Sarbananda Sonowal v UOI, since it made some departures from the Foreigners Act, 1946 and Foreigner Tribunal Order, 1964. The IMDT Act reversed the burden of proof from individuals to State, made reference to tribunal more onerous, and indirectly made it harder to deport illegal immigrants.
    • The Supreme Court struck down the IMDT Act and held it as unconstitutional. However, the large-scale illegal migration and political turmoil continued. Assam Sanmilita Mahasangha, along with other organizations, challenged the constitutional validity of Section 6A of the Citizenship Act, 1955 in 2012.
    • In 2014, A 2-Judge Bench of the Supreme Court heard the matter and passed an order under Art 145(3) of the Constitution, referring the matter to a larger Constitutional Bench. On 19th April, 2017 a 5-Judge Bench was constituted. The petitioners argue that there is no rational basis for having separate cutoff dates for regularising illegal migrants who enter Assam as opposed to the rest of the country.

ISSUE BEFORE THE COURT:

  1. Whether Section 6A violates fundamental rights since 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.
  2. Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law?
  3. 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 Act and the Foreigners (Tribunals) Order, 1964 made thereunder?
  • Whether Section 6A violates the fundamental basis of the Section 5(1) proviso and Section 5

(2) of the Citizenship Act (as it stood in 1985), since they permit 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?

  • Whether Section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits citizens who have allegedly, not lost their East Pakistani citizenship, to become Indian citizens and thereby conferring dual Citizenship to such persons?
  • 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?
  • Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?
  • Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh.
  • 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 off date for regularizing illegal migrants who enter Assam as opposed to the rest of the country?
  • Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution?
  • 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 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)?
  • Whether Section 6A of the Citizenship Act, 1955 violates Articles 325 and 326 of the Constitution of India in that it has diluted the political rights of the citizens of the State of Assam?
  • 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)

RATIO OF THE COURT

  1. The learned counsel for the respondents had submitted in the beginning itself that the petition ought to be dismissed on the ground of limitation. The court with special reference to Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110 held that there was no upper limit and lower limit of filing petition under Art.32 and that the Article in itself is a fundamental right. It all depends on the breach of the particular fundamental right, the remedy claimed, and how the delay arose. Furthermore, the petition concerned a variety of fundamental rights under Articles 14, 15, 16 and 21 which had come under conflict as a result of clashes due to the ongoing issue of foreigners’ influx in Assam. The court held that the petition could not be dismissed in the light of above observations.
    1. The court observed that 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.
    1. The court laid down that 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.
    1. Regarding the validity of Section 6A of the Citizenship Act, the court left it for the larger bench to consider and moved ahead with the ground that 6A was valid. It referred to the Sarbanand Sonowal case to reflect that Illegal Migrants (Determination by Tribunals) Act, 1983 had proved ineffective and had failed to implement the Assam Accord in its spirit. It also referred to the White Paper submitted by the state of Assam on the issue dated 20th October, 2012.
    1. This led to the conclusion that that the number of tribunals set up by the IMDT Act was abysmally low resulting in an abysmally low number of decisions by these tribunals. The court also observed 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 the filing of the present petition was a mere 2,000 odd. Also, these deportees were mostly if not all “push backs” which resulted in the same deportees coming back post deportation from a border which is completely porous.
    1. The court lamented the fact that even after so many years the eastern border is completely porous as compared to western border and therefore ineffective in controlling mass influx of

illegal immigrants. The court also examined the affidavit filed by the Central Govt. proposing to establish complex machinery for the purpose of detecting the foreigners including the establishment of police task force in the state.

  • The court also noted from the affidavit that the existing mechanism which involved confirming of the subject’s address from Bangladesh govt. in order to determine his nationality was mostly ineffective.

DECISION HELD BY COURT

  • In the light of the above observations the court issued a number of directions to the Union government:
  • Completion of border fencing, border roads and placing of flood lights on the borders to check the inflow.
  • Creation of Foreign Tribunals to speed up tracking and detection.
  • Betterment of existing mechanism on deportation by entering into discussions with Bangladesh government.
  • Insofar as Writ Petition (C) No. 274/2009 was concerned, the court directed that on and from the date of this judgment a time schedule should govern the work of updating of the NRC in Assam over a period of eleven months so that the entire updated NRC is published by the end of January, 2016.

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