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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 562 OF 2012

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

WITH

WRIT PETITION (CIVIL) NO. 876 OF 2014

All Assam Ahom Association & Ors.                             …Petitioners

Versus

Union of India & Ors.                                                       …Respondents  

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J U D G M E N T

R.F. Nariman, J.

1. A Prophet is without honour in his own country.  Substitute ‘citizen’  

for  ‘prophet’  and you will  get  the gist  of  the various writ  petitions filed  

under Article 32 of the Constitution of India assailing Section 6A of the  

Citizenship Act.

2. It  all  began when the Burmese ceded Assam to the British on 24th  

February, 1826 as per the treaty of Yandabo, thus bringing to an end Ahom  

rule in Assam which had begun sometime in the  13th 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:

“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)

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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  

burden of proving whether a person is or is not a foreigner lies upon such  

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

(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

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(ii) in the case where such person has so migrated on or after  the nineteenth day of July, 1948 , he has been registered as a  citizen of India by an officer appointed in that behalf by the  Government  of  the  Dominion  of  India  on  an  application  made  by  him  therefor  to  such  officer  before  the  commencement of this Constitution in the form and manner  prescribed by that Government: Provided that no person shall  be so registered unless he has been resident in the territory of  India or at least six months immediately preceding the date of  his application.”

4. 19th 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.  

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:

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“2. Power to order expulsion of certain immigrants.-

If the Central Government is of opinion that any person or  class of persons, having been ordinarily resident in any place  outside  India,  has  or  have,  whether  before  or  after  the  commencement of this Act,  come into Assam and that the  stay  of  such  person  or  class  of  persons  in  Assam  is  detrimental to the interests of the general public of India or of  any section thereof or of any Scheduled Tribe in Assam, the  Central Government may by order--

(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.

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  

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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  

means of livelihood were all indicated therein.   

8. Between 1948 and 1971, there were large scale migrations from East  

Pakistan to Assam.  As is well known, West Pakistan commenced hostilities  

against  East  Pakistan on 25th 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  

successful  culmination of  the war in Bangladesh,  on 19th 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”

9. Given the continuing influx of illegal migrants from Bangladesh into  

Assam, the All Assam Students Union first submitted a memorandum to the  

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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  

applicable only to Assam and was expected to be a measure which speeded  

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  

the “Assam Accord” on 15th 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

(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  

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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.  

3.  Being  fully  alive  to  the  genuine  apprehensions  of  the  people  of  Assam,  the  then  Prime  Minister  initiated  the  dialogue with the AASU/AAGSP. Subsequently, talks were  held  at  the  Prime  Minister’s  and  Home  Ministers  levels  during the period 1980-83. Several rounds of informal talks  were held during 1984. Formal discussions were resumed in  March, 1985.  

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.  

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.

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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.  

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.

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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.  

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.  

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;  

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2.   Frame a scheme for ex-gratia payment to next of kin of  those who were killed in the course in the agitation.  

3.   Give sympathetic consideration to proposal for relaxation  of  upper  age  limit  for  employment  in  public  service  in  Assam, having regard to exceptional situation that prevailed  in holding academic and competitive examinations etc. in the  context of agitation in Assam:  

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/-  

(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  

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                                                                                  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;

(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  

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the Foreigners (Tribunals) Order, 1964 submits its opinion to  the effect  that  he is  a foreigner to the officer  or  authority  concerned.

(2) Subject to the provisions of sub-sections (6) and (7), all  persons  of  Indian  origin  who came  before  the  1st  day  of  January,  1966  to  Assam  from  the  specified  territory  (including such of those whose names were included in the  electoral rolls used for the purposes of the General Election  to the House of the People held in 1967) and who have been  ordinarily resident in Assam since the dates of their entry into  Assam shall be deemed to be citizens of India as from the 1st  day of January, 1966.

(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.  

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,—

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(i)  if  such opinion contains a finding with respect  to such  other  requirement,  decide  the  question  in  conformity  with  such finding;

(ii) if such opinion does not contain a finding with respect to  such  other  requirement,  refer  the  question  to  a  Tribunal  constituted  under  the  said  Order  having  jurisdiction  in  accordance with such rules as the Central Government may  make in this behalf under section 18 and decide the question  in conformity with the opinion received on such reference.

(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,—

(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  

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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).  

Explanation.—Where a person required to file a declaration  under this sub-section does not have the capacity to enter into  a contract, such declaration may be filed on his behalf by any  person competent under the law for the time being in force to  act on his behalf.

(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  

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  

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benefit of citizenship  of India so that all persons who had migrated before  

1966 and all  persons who migrated before 25th March,  1971 respectively  

were to become citizens of India either immediately or as is mentioned by  

the Act after a period of 10 years once there has been a determination that  

they have in fact settled in India between 1966 and 1971.  

13. On 8th 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.

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  

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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.”

14. It was in this backdrop that a writ petition being Writ Petition No. 131  

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  

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  

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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.  

16. On 14th July, 2004, in response to an unstarred question pertaining to  

deportation of  illegal  Bangladeshi  migrants,  the Minister  of  State,  Home  

Affairs,  submitted  a  statement  to  Parliament  indicating  therein  that  the  

estimated number of  illegal  Bangladeshi  immigrants into India as on 31st  

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  

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  

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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  electoral rolls prior to March 24th (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 ;  

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;  

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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  

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:

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“9. In India we have the Limitation Act which prescribes   different  periods  of  limitation  for  suits,  petitions  or   applications.  There  are  also  residuary  articles  which   prescribe limitation in those cases where no express period is   provided. If it were a matter of a suit or application, either   an appropriate article or the residuary article would have   applied. But a petition under Article 32 is not a suit and it is   also not a petition or an application to which the Limitation   Act  applies.  To  put  curbs  in  the  way  of  enforcement  of   Fundamental Rights through legislative action might well be   questioned  under  Article  13(3).  The  reason  is  also  quite   clear.  If  a  short  period  of  limitation  were  prescribed  the   Fundamental Right might well be frustrated. Prescribing too   long a period might enable stale claims to be made to the   detriment of other rights which might emerge.

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.

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.”

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    Justice Sikri held as follows:

“18. It seems to me, however, that the above solution is   not quite appropriate for petitions under Article 32. A delay   of 12 years or 6 years would make a strange bed-fellow with   a  direction  or  order  or  writ  in  the  nature  of  mandamus,   certiorari  and prohibition.  Bearing in  mind the  history  of   these writs  I  cannot believe that  the Constituent  Assembly   had the intention that  five Judges of  this  Court  should sit   together to enforce a fundamental right at the instance of a   person,  who had without any reasonable explanation slept   over his rights for 6 or 12 years. The history of these writs   both  in  England  and  the  U.S.A.  convinces  me  that  the   underlying  idea  of  the  Constitution  was  to  provide  an   expeditious and authoritative remedy against the inroads of   the  State.  If  a  claim  is  barred  under  the  Limitation  Act,   unless there are exceptional circumstances, prima facie it is   a stale claim and should not be entertained by this Court.   But even if it is not barred under the Indian Limitation Act, it   may not be entertained by this Court if on the facts of the   case there is unreasonable delay. For instance, if the State   had taken possession of property under a law alleged to be   void, and if a petitioner comes to this Court 11 years after   the possession was taken by the State, I would dismiss the   petition  on  the  ground  of  delay,  unless  there  is  some   reasonable explanation. The fact that a suit for possession of   land would still be in time would not be relevant at all. It is   difficult  to lay down a precise  period beyond which delay   should be explained. I favour one year because this Court   should not be approached lightly, and competent legal advice   should be taken and pros and cons carefully weighed before   coming to this Court. It is common knowledge that appeals   and representations to the higher authorities take time; time   spent in pursuing these remedies may not be excluded under   the Limitation Act, but it may ordinarily be taken as a good   explanation for the delay.

30. In my opinion the petitioner was under a mistake of   law, when he paid up, the mistake being that he thought that   

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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   

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limitation in the exercise of its jurisdiction under Article 32.   It follows that the present petition must be dismissed”

Mitter  J., held as follows:

“66. In  my  view,  a  claim  based  on  the  infraction  of   fundamental  rights  ought  not  to  be  entertained  if  made   beyond  the  period  fixed  by  the  Limitation  Act  for  the   enforcement of the right by way of suit.  While not holding   that the Limitation Act applies in terms, I am of the view that   ordinarily the period fixed by the Limitation Act should be   taken to be a true measure of the time within which a person   can be allowed to raise a plea successfully under Article 32   of the Constitution. “

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.

76.  Admittedly  the  provisions  contained in  the  Limitation   Act do not apply to proceedings under Article 226 or Article 32.   

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The  Constitution  makers  wisely,  if  I  may  say  with  respect,   excluded  the  application  of  those  provisions  to  proceedings   under  Articles  226,  227  and  32  lest  the  efficacy  of  the   constitutional remedies should be left to the tender mercies of   the legislatures. This Court has laid down in I.C. Golaknath v.   State of Punjab [(1967) 2 SCR 762] that the Parliament cannot   by amending the Constitution abridge the fundamental rights   conferred under Part III of the Constitution. If we are to bring   in the provisions of  Limitation Act  by an indirect  process to   control  the  remedies  conferred  by  the  Constitution  it  would   mean that  what  the Parliament  cannot  do directly  it  can do   indirectly by curtailing the period of limitation for suits against   the Government. We may console ourselves by saying that the   provisions of the Limitation Act will have only persuasive value   but they do not limit the power of this Court but the reality is   bound to be otherwise. Very soon the line that demarcates the   rule of prudence and binding rule is bound to vanish as has   happened  in  the  past.  The  fear  that  forgotten  claims  and   discarded  rights  may  be  sought  to  be  enforced  against  the   Government after lapse of years, if the fundamental rights are   held to be enforceable without any time limit appears to be an   exaggerated  one.  It  is  for  the  party  who  complains  the   infringement of any right to establish his right. As years roll on   his task is bound to become more and more difficult. He can   enforce only an existing right. A right may be lost due to an   earlier decision of a competent court or due to various other   reasons. If a right is lost for one reason or the other there is no   right  to  be  enforced.  In  this  case  we  are  dealing  with  an   existing right even if it can be said that the petitioners' remedy   under the ordinary law is barred. If the decision of Bachawat   and Mitter, JJ., is correct, startling results are likely to follow.   Let us take for example a case of a person who is convicted and   sentenced to a long period of imprisonment on the basis of a   statute which had been repealed long before the alleged offence   was committed. He comes to know the repeal of the statute long   after  the  period  prescribed  for  filing  appeal  expires.  Under   such a circumstance according to the decision of Bachawat and   Mitter, JJ., he will have no right — the discretion of the court   apart — to move this court for a writ of habeas corpus.

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77. Our Constitution makers in their wisdom thought that no   fetters should be placed on the right of an aggrieved party to   seek relief from this court under Article 32. A comparison of the   language of Article 226 with that of Article 32 will show that   while under Article 226 a discretionary power is conferred on   the High Courts the mandate of the Constitution is absolute so   far  as the exercise  of  this  court's  power under  Article  32 is   concerned. Should this court, an institution primarily created   for  the  purpose  of  safeguarding  the  fundamental  rights   guaranteed under  Part  III  of  the Constitution,  narrow down   those rights? The implications of this decision are bound to be   far reaching. It is likely to pull  down from the high pedestal   now occupied by the fundamental rights to the level of other   civil rights. I am apprehensive that this decision may mark an   important turning point in downgrading the fundamental rights   guaranteed under the Constitution. I am firmly of the view that   a relief  asked for under Article 32 cannot be refused on the   ground of laches. The provisions of the Limitation Act have no   relevance  either  directly  or  indirectly  to  proceedings  under   Article 32. Considerations which are relevant in proceedings   under Article 226 are wholly out of place in a proceeding like   the one before us. The decision of this court referred to in the   judgment  of  Bachawat  and  Mitter,  JJ.,  where  this  court  has   taken  into  consideration  the  laches  on  the  part  of  the   petitioners are not apposite for our present purpose. None of   those  cases  deal  with  proceedings  under  Article  32  of  the   Constitution. The rule enunciated by this court in the State of   M.P. v. Bhailal Bhai, [(1964) 6 SCR 261] is only applicable to   proceedings  under  Article  226.  At  p.  271 of  the report,  Das   Gupta, J., who spoke for the court specifically referred to this   aspect when he says: “That it  has been made clear more than once that power to   relief under Article 226 is a discretionary power.”

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.  

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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  

was in favour of an inflexible time limit that is not beyond one year.  Both  

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.  

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:

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“31. But insofar as the attack is based on the 1952 Seniority   Rules, it must fail on another ground. The ground being that   this  petition  under  Article  32  of  the  Constitution  has  been   brought  about  fifteen  years  after  the  1952  Rules  were   promulgated  and  effect  given  to  them  in  the  Seniority  List   prepared  on  August  1,  1953.  Learned  counsel  for  the   petitioners says that this Court has no discretion and cannot   dismiss the petition under Article 32 on the ground that it has   been brought after inordinate delay. We are unable to accept   this  contention.  This  Court  by  majority  in Tilokchand  Moti   Chand v. H.B. Munshi [(1969) 1 SCC 110] held that delay can   be  fatal  in  certain  circumstances.  We  may  mention  that   in Laxmanappa  Hanumantappa  Jamkhandi v. Union  of   India [AIR  1955  SC  3,  (1955)  1  SCR  769]  Mahajan,  C.J.,   observed as follows:

“From the facts stated above it is plain that the proceedings   taken under the impugned Act 30 of 1947 concluded so far as   the Investigation Commission is concerned in September 1952   more than two years before this petition was presented in this   Court. The assessment orders under the Income Tax Act itself   were made against the petitioner in November 1953.

In  these  circumstances,  we  are  of  the  opinion  that  he  is   entitled to no relief under the provisions of Article 32 of the   Constitution. It was held by this Court in  Ramjilal v. ITO that   as there is a special provision in Article 265 of the Constitution   that no tax shall be levied or collected except by authority of   law,  clause  (1)  of  Article  31  must  therefore  be  regarded  as   concerned with deprivation of property otherwise than by the   imposition  or  collection  of  tax,  and  inasmuch  as  the  right   conferred by Article 265 is not a right conferred by Part III of   the Constitution, it could not be enforced under Article 32. In   view of this decision it has to be held that the petition under   Article 32 is not maintainable in the situation that has arisen   and that even otherwise in the peculiar circumstances that have   arisen, it would not be just and proper to direct the issue of any   of the writs the issue of which is discretionary with the Court.”

(emphasis supplied).

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32. The learned counsel  for the petitioners strongly urges   that  the  decision  of  this  Court  in Tilokchand  Motichand  case [(1969)  1  SCC  110]  needs  review.  But  after  carefully   considering the matter, we are of the view that no relief should   be  given  to  petitioners  who,  without  any  reasonable   explanation,  approach  this  Court  under  Article  32  of  the   Constitution after inordinate delay. The highest Court in this   land has been given original jurisdiction to entertain petitions   under Article 32 of the Constitution. It could not have been the   intention that this Court would go into stale demands after a   lapse of years. It is said that Article 32 is itself a guaranteed   right. So it is, but it does not follow from this that it was the   intention  of  the  Constitution-makers  that  this  Court  should   discard all  principles and grant relief  in petitions filed after   inordinate delay.

33. We  are  not  anxious  to  throw  out  petitions  on  this   ground, but we must administer justice in accordance with law  and principles of equity, justice and good conscience. It would   be unjust to deprive the respondents of the rights which have   accrued to them. Each person ought to be entitled to sit back   and consider  that  his  appointment  and promotion effected  a   long  time  ago  would  not  be  set  aside  after  the  lapse  of  a   number  of  years.  It  was  on  this  ground  that  this  Court   in Jaisinghani case observed that the order in that case would   not  affect  Class  II  officers  who  have  been  appointed   permanently  as  Assistant  Commissioners.  In  that  case,  the   Court was only considering the challenge to appointments and   promotions  made  after  1950.  In  this  case,  we  are  asked  to   consider  the  validity  of  appointments  and  promotions  made   during  the  periods  of  1945  to  1950.  If  there  was  adequate   reason in that case to leave out Class II officers, who had been   appointed permanently Assistant Commissioners, there is much   more  reason  in  this  case  that  the  officers  who  are  now   permanent  Assistant  Commissioners  of  Income Tax and who  were  appointed  and promoted to  their  original  posts  during   1945 to 1950, should be left alone.”

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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  

the court after a delay of at least eight years, the Court held that barring a  

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  

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  

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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.   

28. Similarly in T.K. Dingal v. State of West Bengal, (2009) 1 SCC 768,  

a Bench of two Judges held  that there is no upper and no lower limit when it  

comes to an Article 32 petition. It all depends on the breach of the particular  

fundamental right, the remedy claimed, and how the delay arose. On facts,  

the petition was turned down as there was an unexplained delay of ten years.  

29. In  Bangalore  City  Co-operative  Housing  Society  v.  State  of  

Karnataka, (2012) 3 SCC 727, a two Judge Bench of this Court understood  

the ratio of Tilokchand Motichand as follows:

“46. In Tilokchand  Motichand v. H.B.  Munshi [(1969)  1  SCC  110] the Constitution Bench considered the question whether   the writ petition filed under Article 32 of the Constitution for   refund of the amount forfeited by the Sales Tax Officer under   Section  21(4)  of  the  Bombay  Sales  Tax  Act,  1953,  which,   according to the petitioner, was ultra vires the powers of the   State Legislature should be entertained ignoring the delay of   almost nine years. Sikri and Hedge, JJ. were of the view that   even  though  the  petitioner  had  approached  the  Court  with   considerable  delay,  the  writ  petition  filed  by  it  should  be   allowed because Section 12-A(4) of the Bombay Sales Tax Act,   1946 was declared unconstitutional by the Division Bench of   the High Court (sic Constitution Bench of the Supreme Court)   [Ed.:  S.  12-A(4)  of  the  Bombay  Sales  Tax  Act,  1946   (corresponding to S. 21(4) of the Bombay Sales Tax Act, 1953)   was  struck  down  by  the  Constitution  Bench  of  the  Supreme   

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Court  in Kantilal  Babulal v. H.C.  Patel,  AIR 1968 SC 445  :   (1968) 1 SCR 735 : 21 STC 174 for being violative of Art. 19(1) (f) of the Constitution.] . Bachawat and Mitter, JJ. opined that   the writ petition should be dismissed on the ground of delay.

47. Hidayatullah,  C.J.  who  agreed  with  Bachawat  and   Mitter, JJ. in Tilokchand case[(1969) 1 SCC 110] noted that no   period of  limitation has been prescribed for filing a petition   under Article 32 of the Constitution and proceeded to observe:   (SCC p. 116, para 11)

“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  the   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.”

48. The ratio of the aforesaid decision is that even though   there  is  no  period  of  limitation  for  filing  petitions  under   Articles 32 and 226 of the Constitution, the petitioner should   approach the Court without loss of time and if there is delay,   then  cogent  explanation  should  be  offered  for  the  same.   However,  no  hard-and-fast  rule  can  be  laid  down  or  a   straitjacket formula can be adopted for deciding whether or not   this Court or the High Court should entertain a belated petition   filed under Article 32 or Article 226 of the Constitution and   each case must be decided on its own facts.”

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  

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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  

little to stem this  tide thereby resulting in a violation of Article 355.  As a  

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  

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-

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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  

would be guilty of shirking our Constitutional duty to protect the lives of our  

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  

Constitution altogether by the Constitution 44th 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  

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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  

fundamental rights cannot be waived (at para 29). Given these important  

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  

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  

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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)?

(ii) Whether Section 6A 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;

(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  

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-

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off date for regularizing illegal migrants who enter Assam as opposed to the  

rest of the country; and  

(vi) 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.    

(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  

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?   

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(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  

Act and the Foreigners (Tribunals) Order, 1964 made thereunder?  

(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  

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  

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implement one part  of  the Assam Accord dated 15th 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.  

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   

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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.  

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.”

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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  

that case.  This Court examined a writ  petition filed under Article 32 and  

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   

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Foreigners (Tribunals) Order, 1964 framed thereunder. Under   the said provision a person of Indian origin as defined under   Section 6-A (3) who entered into Assam prior to 1-1-1966 and   has been resident in Assam since then is deemed to be a citizen   of India. However, if such a person entered into Assam between   1-1-1966 and before 25-3-1971 and has been detected to be a   foreigner under the Foreigners Act then he is not entitled to be   included in the electoral list for a period of 10 years from the   date of detection. This amendment of the Citizenship Act makes   it  clear  that  the  question  of  determination or  detection  of  a   foreigner is to be governed by the provisions of  the existing   Central  legislation  viz.  the  Foreigners  Act,  1946  and  the   Foreigners (Tribunals) Order, 1964.

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:

“3.  Continuing  influx  of  Bangladeshi  nationals   into India has been on account of a variety of reasons   including  religious  and  economic.  There  is  a   

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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:

(a) steep and continuous increase in population; (b) sharp deterioration in land-man ratio; (c) low rates of economic growth particularly poor   

performance in agriculture; 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.

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;

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(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:

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

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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:

“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.

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The facts and figures which have been stated by the Union of   India  in  its  affidavit  filed  in  the  case  titled  ‘Jamiat  Ulama-E- Hind v. Union of  India [WP (C)  No.  7 of  2001]’ clearly  indicate   that it is the existence of the IMDT Act, which has been the single   factor  responsible  for  dismal  detection  and  expulsion  of  illegal   migrants  in  Assam.  It  has  also  been  pointed  out  that  in  the   neighbouring States, where this law is not in force, the process of   detection  (although  far  from  satisfactory)  has  been  far  more   effective than in the State of Assam. The application of the IMDT   Act, 1983 in Assam virtually gives the illegal migrants, in the State,   preferential  protection  in  a  matter  relating  to  the  citizenship  of   India.  This  is  clearly  unconstitutional  and  violative  of  the   principles of equality. The affidavit of the State seems to suggest   that  the matter  has  now become a  political  rather  than a  legal   issue. However, it is submitted that as far as the present pleadings   are concerned, the issues indicated in the present affidavit of the   State under reply, are not relevant. None of the submissions made   in the connected affidavit, referred to above filed by the Union of   India in connected Writ Petition No. 7 of 2001, are controverted by   the State of Assam in present affidavit. Besides this, the State has   not given any fresh facts and figures, which would seek to suggest   that  this  Act  has  secured  the  object  of  dealing  with  illegal   infiltrators.”

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:

“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.

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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.

20.4 There is a direct correlation between the rise of   fundamentalism and increase in influx.”

16. In IA No. 6 of 2004, the copy of the memorandum submitted   before the Parliamentary Standing Committee of Home Affairs on   “the Illegal Migrants Laws (Replacing and Amending) Bill, 2003”   on  behalf  of  the  Government  of  Assam  has  been  filed,  which   contains the figures regarding inquiries conducted up to 31-8-2003   and the same is as under:

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”

38. The State of Assam has prepared a White Paper on the Foreigners  

Issue dated 20th October, 2012.  We propose to extract large portions of this  

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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.

2.3.5. The 21 IMDTs functioning in Assam were wound up and   replaced by 21 new Foreigners Tribunals. The learned judges   and  staff  of  IMDT  were  redeployed  in  the  newly  created   additional Foreigners Tribunals. As a result, after 2005, 32(21   new + 11 existing) Foreigners Tribunals started functioning.   The number of Foreigners Tribunal has now been raised to 36   with  the  functioning  of  4  new  Foreigners  Tribunals.  The   performance of Foreigners Tribunal over different time period   is presented in the table below:  

Foreigners Tribunals Cases Perio d

Cases  referred

Cases disposed Cases  pending  (cumulative)

Persons  declared as   Foreigners  

No.  of   declared  foreigners  pushed  Back/deported

1985- 90

32991 15929 17062 14801 133

1991- 95

482 5909 11635 4005 267

1996- 2000

2986 3552 11069 6026 235

2001- 2005

6094 2216 14947 4593 39

2006- July  2012

65666 45456 35157 12913 221

Total 108219 73062 35157 42338 895

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   

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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  

3.1.1.  As per the Clause 6 of the Assam Accord, 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. For this purpose the Government of Assam  had earlier constituted a Committee of Ministers for Clause 6   under  notification  No.  IAA  51/2005/29   dated  19th October  2006 to examine all the issues relating to the implementation of   the Clause 6 of the Assam Accord including the definition of   ‘Assamese  people’.  This  Committee  had  held  a  number  of   meetings and also met Political Parties. It sought the views of   different  Political  Parties,  Sahitya  Sabhas,  Youth   Organisations,  Student  Bodies  etc  on  the  definition  of   'Assamese  People'  and  deliberated  on  the  same.  After  the   present  Government  assumed office  in May 2011, a  Cabinet   Sub-Committee was constituted in July 2011 to inter alia deal   with the matter of  implementation of  Clause 6 of  the Assam   Accord.  The  entire  matter  is  now under  examination  of  the   Cabinet Sub-Committee.

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   

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already sanctioned Rs 6.66 crores to the Jyoti Chitraban Film   Studio Society (JCFSS), which is implementing the scheme. A   Technical  Committee  and  a  Monitoring  &  Supervision   Committee have been constituted to implement the project. An   amount of around Rs 2.64 crores have been spent so far and   works are under progress.  

3.1.3. In addition to the two Monuments at Poa-Mecca, Hajo   and Urvarsi Archaeological Site that were taken over by the   Archaeological Survey of India in 1919 and 1918 respectively,   the Archaeological Survey of India has taken up another three   Monuments for their preservation in 2005. These Monuments   are the Hayagriva Madhava Temple, Hajo, the Kedar Temple,   Hajo and the Ganesh Temple, Hajo.  

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.

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  

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3.4.1. BORDER FENCING & BORDER ROADS

3.4.1.1. The Indo-Bangladesh border with Assam has a length   of 267.30 km. Out of this 223.068 km is the land border and   44.232  km  are  river  stretches  and  other  non-feasible  gaps   across the river border.  Within 44.232 km, the Brahmaputra   river has a stretch of 32.750 km in Dhubri District. Details of   the river border areas is given in the Annexure-12. Roads and  Fences  are  erected  only  on  land  border  and  the  length  of   44.232 km is unfenced.  

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.  

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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,   which are targeted to be completed by 31st 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.  

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)

Phase Sanctioned/  Actual  Length

Actual required Completed Disputed Balance

Phase-I 150.55 147.17 144.3 2.87 0 Phase- 77.57 77.52 73.87 0 3.65

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II Phase-I   & II

228.12 224.69 218.17 2.87 3.65

Phase- III   Fencin g

144.96 134.73 121.71 0 13.02

3.4.1.7   While Assam has almost completed its fencing project   under phase I and II with around 97% of the work having been   completed,  the  work  in  other  states  bordering  Bangladesh  is   lagging behind as indicated below:  

State Total  length  of  border  fencing   sanctioned  under  Phase-I  and   Phase-II

Total  length  of  border  fencing  completed  under  Phase-I  and   Phase-II

Percentage  of   completion

West  Bengal

1528 km 1222 km 80%

Meghalay a

470.23 km 380.06 km 81%

Tripura 856 km 730.50 km 85% Mizoram 352.32 km 206.80 km 59% Assam 224.69 km 218.17 km 97%

3.4.1.8.  The  total  unfenced  portion  of  the  Assam-Bangladesh   border at present is given in the table below:

                                                                                                               (In Km) 1 .

River stretches and other non-feasible gaps across the river border 44.23

Unfenced River Border 44.23 2 .

Phase-II fencing yet to be completed by APWD & NBCC 3.65

3 .

Disputed land in Lathila-Dumabari 2.87

4 .

Earlier completed fence in Phase-I, now under reconstruction by NPCC and yet   to be completed

13.02

5 .

Unfenced Land Border: 19.55

Total unfenced length along Assam-Bangladesh Border: 63.79

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   

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deployed for guarding of the Indo-Bangladesh border (Assam  portion).   There  are  91  BOPs  at  present  and  the  distance   between  two  BOPs  has  been  reduced)  Night  vision  devices,   thermal indicators and radar for better surveillance are being   used by the BSF at the border.  The state police are also having   BOPs for providing a second line of defence. To strengthen the   Government  machinery  for  the  purpose  of  detection  and  deportation  of  foreigners,  the  Government  of  India  has   sanctioned 1,280 additional posts in different ranks under the   PIF Scheme. Including these 1,280 posts, the total sanctioned   strength  of  the  Assam  Police  Border  Organisation  is  4,002   police personnel in different ranks.  

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   vide the notification No. 1AA 56/2011/1 dated 12th 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.  

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   

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and 43.44 km in Mancachar sub-sector.  Work has started in   both these sub-sectors and is scheduled to be completed within   2012-13. The Silchar sector comprises three sub-sectors. The   works  in  respect  of  the first,  from BP. No.  1338 to 1356 &   680635  for  40.50  km have  started  and  are  scheduled  to  be   completed within 2012-13. Works in respect of the remaining   two sub-sectors having stretches of 46.70 km and 45.50 km are   yet  to  be  started  and  are  scheduled  to  be  completed  within   2013-14.  

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 Period Cases referred Cases disposed of 1985-2000 80252 43631 2001 July 2012 140758 53452

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.  

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4.3.  STRENGTHENING  OF  MACHINERY  FOR  DETECTION AND DEPORTATION  

4.3.1.  In  order  to  prevent  infiltration  into  the  State  through   Riverine  Routes  4(four)  River  Police  Stations  and  7(seven)   River Police Out Posts have been set  up under River Police   Organization. In addition, a new I.R. Battalion for River Police   has  also  been  raised  and  steps  are  being  taken  to  provide   necessary  equipments  and training to  this  riverine  battalion.   The Assam Police Border Organization has set up 159 Watch   Posts in the infiltration prone areas of 17 districts of Assam for   detection of illegal infiltrators.  

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.  

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   

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registrars of the High Courts of other states and 3 members   have been appointed so far from outside the state. There is a   paucity of suitable judicial officers in the State and all efforts   have been made to fill up all the posts of members. This is the   biggest impediment to our efforts in increasing the number of   tribunals.  

4.3.5. Office infrastructure of Foreigners Tribunals has been   improved  by  providing  computers,  printers:  telephone,  fax,   photocopiers etc.  The Government of Assam is making every   effort to overcome the constraints of inadequate infrastructure   including office space for all the Foreigners Tribunals.  

ANNEXURE - 5

                                       (Copy)

Copy of Letter NO.PLB.171164/34 dated Shillong,  25th 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   

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from the natural increase during this period, fresh infiltration   and re-entry of some deported persons. But the total number of   such  people  should  not  be  many.  Therefore,  the  number  of   cases to be detected is gradually decreasing. Now, more and   more marginal cases would be detected.  Therefore,  time has   come when we have to be more careful in deportation.   

In the light  of  the above background,  Govt.  think that   from now onward, each and every case of deportation should   receive the cases where there is slightest doubt, no deportation   notice should be reserved, but prosecution should be started in   Court of law and deportation notices should be served on the   basis  of  the  judgment  in  the  court  of  law.  The  following   categories  of  cases,  however,  would  be  warrant  service  of   deportation notices without reference to Court:-  

(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.  

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,  

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                                                                     Inspector General   of Police, Assam.  

39. It will be seen that the number of tribunals set up is abysmally low  

resulting in an abysmally low number of decisions by these tribunals.  What  

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  

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.  

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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  

fenced but properly manned as well and is not porous at any point.   

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  

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.

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“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.  

(ii)  Identification of vulnerable patches/routes by 15th January 2015   from where Bangladeshi nationals are managing to enter into the   country  illegally.  After  identification  of  these  vulnerable   patches/routes,  security  and  vigilance  will  be  strengthened  at   these  points  along  the  identified  routes  used  for  illegal   infiltration.  

(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.

(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   

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Bangladesh  in  19  km,  construction  of  fencing  could  not  be   completed.  Action  has  been  initiated  to  resolve  the  boundary   issues with Bangladesh. Fencing work cannot be started in 188   km  due  to  delay  in  land  acquisition  by  the  concerned  State   Governments of  Tripura (11 Km.),  West  Bengal (86 Km.) and   Assam (3.5 Km.). In case of Meghalaya State earlier the issue of   pending land acquisition was for about 135 km. However, due to   constant persuasion by the Ministry of Home Affair at the highest   level, the matter was partially resolved and fencing is completed   in such stretches except for 23.63 km. in which work in progress.   Presently, the land acquisition is pending for about 87.5 km. in   Meghalaya.  The  Matter  has  been  taken  up  with  the  State   Governments  of  Meghalaya,  Tripura,  West  Bengal  and Assam  for  early  acquisition  of  land  for  construction  of  fencing  at   various levels. Matter is being followed up with them regularly.   Besides,  environmental/  forest  clearance  is  also  required  for   erection  of  fencing in  61.6  km.  areas  falling  in  Dampa Tiger   Reserve,  Mizoram.  The  matter  was  discussed  in  the  National   Board of Wildlife (NBWL) meeting held on 12th August, 2014.   The  NBWL  had  recommended  the  project  with  certain   conditions.  Action  has  been  initiated  for  compliance  of  the   conditions imposed by the NBWL. Public protest is continuing in   24 km by the people of Meghalaya opposing the construction of   fencing along India-Bangladesh border. The State of Meghalaya   has been requested to resolve the issue expeditiously. It may be   mentioned that where construction of fencing work is in progress   or  fencing  is  to  be  constructed  in  future,  in  such  areas  the   presence  of  BSF  will  be  increased  to  ensure  that  illegal   Bangladeshi  nationals  may not sneak into the Indian territory   clandestinely.  

(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   

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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.  

(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   

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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   border  infrastructure  works,  are  tentative  in  nature  and  the   targets are subject to the condition that the "in-progress" works   are not stalled due to the unforeseen situations like floods, land- slides, public protests,  litigations, etc. Further, it is stated that   the sanctioned and completed status of the border infrastructure   mentioned in paras (vi) to (ix) are dynamic in nature due to the   difficult  terrain  along  the  border  areas  coupled  with  floods,   land-slide, breach in fence, etc.

(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.

(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  

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migrants 500 police units/task force will be activated in the State within one  

month.

44. The affidavit of the Union also indicates that in addition to the 36  

Foreigners Tribunals which are claimed to be functioning in the State of  

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   

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or Deputy High Commissions  in Kolkata or Mumbai,  as the   case may be, to avail of consular access for interaction with   such detained persons. The Bangladesh authorities depute their   representative  for  interaction  with  such  persons  who  are   detained  in  detention  centres/jails.  If  such  persons  disclose   their  addresses  in  the  Bangladesh  then  their  nationality  is   confirmed.  Some  of  them  still  claim  that  they  are  Indian   nationals and in that event Bangladesh authorities are unable   to  confirm/nationality  of  such  persons.  Persons  whose   nationalities are confirmed by the Bangladesh authorities, are   repatriated  to  Bangladesh  immediately.  It  is  mentioned  that   many  of  the  declared  illegal  migrants  do  not  disclose  their   address,  contacts  of  their  relatives  in  Bangladesh.  In  such   cases, it becomes very difficult for Bangladesh authorities for   verification of nationality of these persons. In the current years   nationality  of  32  Bangladeshi  nationals  who  were  in  the   detention  centres/jails  in  Assam  were  confirmed  by  the   Bangladesh authorities and they have been repatriated.”   

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.

          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  

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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  

enable effective and intensive patrolling. Flood lights,  wherever required,  

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.  

          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.

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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.   

         III. Existing Mechanism of Deportation of Declared Illegal Migrants

While  taking  note  of  the  existing  mechanism/procedure  for  

deportation keeping in view the requirements of international protocol, we  

direct  the  Union  of  India  to  enter  into  necessary  discussions  with  the  

Government of Bangladesh to streamline the procedure of deportation.  The  

result of the said exercise be laid before the Court on the next date fixed.  

47. The implementation of the aforesaid directions will be monitored by  

this Court on the expiry of three months from today.  In the event it becomes  

so necessary, the Court will entrust such monitoring to be undertaken by an  

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.

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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  

of January 2015 by order dated  27.11.2014 of the Court.

2. The remaining work of updating the NRC will now conform to the  

following time schedule which will be strictly adhered to.  

Sl.  No.

Task Period in  Months

Start End

1. Publication  of  Records- Search/looking up of  linkage by public

1 February, 2015 February, 2015

2. Receipt  of  applications

3 March, 2015 May, 2015

3. Verification 4 June, 2015 September, 2015

4. Draft Publication 1st October,  2015

5. Receipt  of Claims &  Objections

1 October, 2015 October, 2015

6. Disposal of Claims &  Objections

2 November,  2015

December, 2015

7. Finalization  of  final  updated NRC

1st January,  2016

Total  Time  Period  in Months

11

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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.  

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