 CASE NOTE: Citizenship

Table of Contents
CASE NOTE: Citizenship.............................................................................................................................1
I. Sarbananda Sonowal v. Union of India, Writ Petition (Civil) 13 of 2000.......................................................2
II. Assam Public Works v. Union of India, Writ Petition (Civil) No. 274 of 2009................................................9
 I. Sarbananda Sonowal v. Union of India, Writ Petition (Civil) 13 of 2000

Facts: 2. The case set up in the writ petition is that the petitioner is a citizen of India and is ordinarily
resident in the State of Assam. He is a former President of the All Assam Students Union, which is the
largest non-political students organization in the State which was responsible for leading the students
movement in Assam in the late 1970s and early 1980s. He is also a former Chairman of the North East
Students' Organisation, which is an umbrella organization of students' association from Assam, Meghalaya,
Manipur, Nagaland, Tripura and Arunachal Pradesh and has been actively involved in issues concerning the
rights of the people of Assam including the question of illegal migrants settled in the said State. The issues
raised in the writ petition concern all residents in the State of Assam whose rights as citizens of India have
been materially and gravely prejudiced by the operation of the Illegal Migrants (Determination by
Tribunals) Act, 1983 (hereinafter referred to as "the IMDT Act"). The principal grievance of the petitioner is
that the IMDT Act is wholly arbitrary, unreasonable and discriminates against a class of citizens of India,
making it impossible for citizens who are residents in Assam to secure the detection and deportation of
foreigners from Indian soil. The Foreigners Act, 1946, applies to all the foreigners throughout India, but the
IMDT Act which was enacted subsequently with the professed aim of making detection and deportation of
the illegal migrants residing in Assam easier has completely failed to meet even the standards prescribed in
the Foreigners Act. That apart, even those provisions of the IMDT Act which afford some measure of
protection to some genuine Indian citizens against illegal migrants are not being properly enforced du
e to extraneous political considerations in derogation of the rights of Indian citizens living in Assam. The
result of the IMDT Act has been that a number of non-Indians, who surreptitiously entered into Assam
after March 25, 1971 without possession of valid passport, travel documents or other lawful authority to
do so, continue to reside in Assam. Their presence has changed the whole character, cultural and ethnic
composition of the area and the IMDT Act creates a situation whereunder it has become virtually
impossible to challenge the presence of a foreigner and to secure his detection, deportation or even
deletion of his name from the electoral list as they get protection on account of the provisions of the Act.
According to the census figures, which have been given in the writ petition, the rate of growth of the
population in Assam is far more than rest of India which shows that large number of foreigners have
migrated to different areas of Assam and have settled there. It is further averred that in view of the
problem of illegal migration of foreigners into Assam and their continued presence therein, a State- wise
protest movement of students was organized which continued for a long period. As a result of the
students' movement and ensuing negotiations, a memorandum of settlement dated 15th August, 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 25th March, 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 No.65 of 1985 and Section 6A 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 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 1st January, 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 1st
January, 1966 and before 25th March, 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.
3. It is further pleaded that after signing of the Assam Accord, several assurances were given and
statements have been made by the Central Government that it is examining the failure of the IMDT Act
regarding detection and deportation of foreigners and it is considering steps to repeal the Act.

7. … In paragraph 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 paragraph 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 paragraph 18 and paragraph 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 upto
30.4.2000) is as follows:

Total number of enquiries initiated 3,10,759 Total number of enquiries completed 3,07,955 Total number
of enquiries referred to Screeing Committee 3,01,986 Total number of enquiries made by the Screening
Committee 2,98,465 Total number of enquiries referred to IM(DT)s 38,631 Total number of enquiries
disposed of by IM(DT)s 16,599 Total number of persons declared as illegal migrants 10,015 Total number of
illegal migrants physically expelled 1,481 Total number of illegal migrants to whom expulsion order served
5,733 Total number of enquiries pending with Screening Committee 3,521 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 22.6.96 regarding repeal of the IMDT Act. The Chief
Minister again reiterated for scrapping the IMDT Act, vide his letter dated 31.7.96 addressed to the Home
Minister. This view has been reconfirmed by the State Govt. vide its message dated 23.4.98."

The statistical analysis of the sharp growth of Muslim population in Assam vis-`-vis Hindu population for
the decades 1951-61, 1961-71 and 1971-1991 is as follows:

Year Assam Muslim Hindu 1951-1961 38.37 33.70 1961-1971 30.99 37.18 1971-1991 77.42 41.89 (*Source
Directorate of Census, Government of India) The chart given above clearly indicates that Muslim
population of Assam has shown a rise of 77.42% in 1971-1991, whereas Hindu population has risen by
nearly 41.89% during the said period.

Issues:
a. This writ petition under Article 32 of the Constitution of India has been filed by way of public
interest litigation for declaring certain provisions of the Illegal Migrants (Determination by
Tribunals) Act, (Act No.39 of 1983) 1983 as ultra vires the Constitution of India, null and void and
consequent declaration that the Foreigners Act, 1946 and the Rules made thereunder shall apply to
the State of Assam.
b. The second prayer made is to declare the Illegal Migrants (Determination by Tribunals) Rules, 1984
as ultra vires the Constitution of India and also under Section 28 of the aforesaid Act and, therefore,
null and void.

Findings:

- Facts & figures

19. …. In the case of Muslims the Assam growth rate was much higher than the All India rate. This suggests
continued large scale Muslim illegal migration into Assam.
(d) Muslim population in Assam has shown a rise of 77.42 per cent in 1991 from what it was in 1971. Hindu
population has risen by nearly 41.89 per cent in this period.

(e) Muslim population in Assam has risen from 24.68 per cent in 1951 to 28.42 per cent in 1991. As per
1991 census four districts (Dhubri, Goalpara, Barpeta and Hailakandi) have become Muslim majority
districts. Two more districts (Nagaon and Karimganj) should have become so by 1998 and one district
Morigaon is fast approaching this position.

20. The growth of Muslim population has been emphasized in the previous paragraph to indicate the
extent of illegal migration from Bangladesh to Assam because as stated earlier, the illegal migrants coming
into India after 1971 have been almost exclusively Muslims.

21. Pakistan's ISI has been active in Bangladesh supporting militant movement in Assam. Muslim militant
organization have mushroomed in Assam and there are reports of some 50 Assamese Muslim youths
having gone for training to Afghanistan and Kashmir.

- CONSEQUENCES of influx of immigrants

22. 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 emphatically stressed. No misconceived and
mistaken notions of secularism should be allowed to come in the way of doing so.

23. 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 a weakened and their employment opportunities will be undermined.

24. The silent and invidious demographic invasion of Assam may result in the loss of the geostrategically
vital districts of lower Assam. The influx of these 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 for driving force for this
demand. In this context, it is pertinent that Bangladesh 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."

- IMDT Act

13. In this writ petition we are basically concerned with the constitutional validity of the IMDT Act, which
has been made applicable only to the State of Assam and that too for detection and deportation of illegal
migrants, who have entered India on 25th March, 1971 or thereafter. The IMDT Act has not been enforced
in the rest of the country.

- IMDT Act v. Foreigners Act

 Foreigners Act, 1946

14. …..The legislature then enacted the Foreigners Act, 1946 which repealed the 1940 Act. Section 2(a) of
this Act defines a "foreigner" and it means a person who is not a citizen of India….. Section 9 of this Act is
important and it reads as under :-

"9. Burden of proof If in any case not falling under section 8 any question arises with reference to this Act
or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not
a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is
not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything
contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person."

….. The most important provision is Section 9 which casts the burden of proving that a person is not a
foreigner or is not a foreigner of such particular class or description, as the case may be, shall lie upon such
person. Therefore, where an order made under the Foreigners Act is challenged and a question arises
whether the person against whom the order has been made is a foreigner or not, the burden of proving
that he is not a foreigner is upon such a person.

16. It needs to be emphasized that the general rule in the leading democracies of the world is that where a
person claims to be a citizen of a particular country, the burden is upon him to prove that he is a citizen of
that country.

17. There is good and sound reason for placing the burden of proof upon the person concerned who
asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be
required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of
birth and citizenship. Some times the place of birth of his grand parents may also be relevant like under
Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge
of the person concerned and not of the authorities of the State. After he has given evidence on these
points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the
State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not
only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in
accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is
especially within the knowledge of any person, the burden of proving that fact is upon him.

 IMDT Act

21. …. (Section 3)

3. Definitions and construction of references - (1) In this Act, unless the context requires

(a) xxx xxx xxx

(b) "foreigner" has the same meaning as in the Foreigners Act, 1946;
(c) "illegal migrant" means a person in respect of whom each of the following conditions is satisfied,
namely:-

(i) he has entered into India on or after the 25th day of March, 1971;
(ii) he is a foreigner;
(iii) he has entered into India without being in possession of a valid passport or other travel
document or any other lawful authority in that behalf;

24. In view of Section 3(1)(c) of the IMDT Act, an illegal migrant is a person with respect to whom all the
three conditions, namely, (i) has entered India on or after 25th March, 1971; (ii) is a foreigner which means
he is not a citizen of India; and (iii) has entered India without being in possession of a valid passport or
other travel documents or any other lawful authority in this behalf, are satisfied. Therefore, if a foreigner
has entered India on or after 25th March, 1971, he would be dealt with under the IMDT Act, while as a
foreigner who has entered any part of India including Assam before 25th March, 1971, would be dealt with
under the Foreigners Act. Section 4 of the IMDT Act is an overriding provision which lays down that the
IMDT Act or the Rule or order made therein shall have effect notwithstanding anything contained in the
Foreigners Act, 1946 or the Immigrants (Expulsion from Assam) Act, 1950 or the Passport Act or any Rule
or Order made thereunder.
25. It is very important to note here that IMDT Act does not contain any provision similar to Section 9 of
the Foreigners Act, 1946 regarding burden of proof. On the contrary it is conspicuously silent about it. In
such circumstances a very heavy burden is cast upon the authorities of the State or the applicant to
establish that a person is an illegal migrant as defined in Section 3(1)(c) of IMDT Act and is liable for
deportation.

 IMDT Act v. Foreigners Act

26. Rule 4 requires an inquiry officer to elicit information and particulars from the alleged illegal migrant on
the points mentioned in Form I. Item No.5, 10, 11, 12 of this Form are as under:-

5. Address in the country of origin (village, police station, district and country).

10. Does the person hold any passport issued by any foreign country ? If so furnish particulars.

11. What are the reasons for leaving the person's country of origin ?

12. If the person has entered into India without a passport, how the person entered India ?

(Name of village, District from which the person entered). Date of entry.

It is elementary that a person who has illegally come from Bangladesh to India and is residing here for his
better economic prospects or employment etc. would never disclose that he has come from Bangladesh
but would assert that he is an Indian national and resides in India. There is no question of his telling his
date of entry or giving any information on the aforesaid points. According to Rules 7 and 8 of the Rules, the
inquiry officer has to submit a report in Form II and Item No.5, 10, 11 and 12 are exactly identical to that in
Form I. Rules 10, 10-A and 10-B lay down that an application to the Tribunal under Section 8(2) shall be
made in Form III, an application to the Central Government under Section 8-A(2) shall be made in Form V
and a declaration under Section 8-A(2) shall be made in Forms V and VI. Curiously enough Column No.6 of
Form III requires the applicant to furnish the following information regarding the alleged illegal migrant: -

(a) whether he entered India on or after 25th March, 1971;

(b) date of his entry into India;

(c) whether he is a foreigner; and

(d) whether he entered India without being in possession of a valid passport or travel document or lawful
authority in that behalf. The contents of the application (form III) have to be affirmed by the applicant that
what is stated in the application is true to the best of his information and belief. The application to the
Central Government has to be made in Form V which contains a similar Column 6 with two further
additions, namely;

(i) the approximate distance between the place of residence of the applicant and the alleged illegal
migrant;

(ii) since when the alleged illegal migrant is staying at the said place.

In Column 7 the applicant has to give details of (a) documentary; and

(b) oral evidence in his possession. The application has to be affirmed that the facts stated are true to the
best of his information and belief and that he has not made more than 10 such applications. It contains a
further clause to the following effect :

"I am aware that in the event of this application being found as false or made with a view to cause vexation
to the person named in this application or any member of his family, I am liable to be proceeded against in
accordance with law for giving false evidence."

Form VI which is a declaration to be made under Section 8-A(2) by another person in corroboration of the
application contains a similar affirmation clause and also the clause quoted above regarding prosecution in
the event the facts mentioned are found to be false.

27. To give the exact date of entry into India of a Bangladeshi national, who has illegally and surreptitiously
crossed the international border, is not only difficult but virtuously impossible. A citizen doing his duty
towards nation of pointing out the presence of a Bangladeshi national to the authorities of the State is put
under threat of criminal prosecution, if the contents of the application are found to be false. This is bound
to have a cascading effect on citizens who will prefer to remain a quiet spectator to the continued influx of
illegal migrants from Bangladesh rather than to take initiative in their detection or deportation.

28. The analysis of the provisions of IMDT Act and the Rules made thereunder clearly demonstrate that the
provisions thereof are very stringent as compared to the provisions of Foreigners Act, 1946 or Foreigners
(Tribunals) Order, 1964, in the matter of detection and deportation of illegal migrants. It is far more easier
to secure conviction of a person in a criminal trial where he may be awarded a capital punishment or
imprisonment for life than to establish that a person is an illegal migrant on account of extremely difficult,
cumbersome and time consuming procedure laid down in the IMDT Act and the Rules made thereunder.
The Act does not contain any provision for constitution of a screening committee which has been done
under the Rules and has been conferred a very wide power of rejecting complaints against which no appeal
lies. The figures supplied in the initial affidavit filed by the State of Assam show that more than eighty five
per cent enquiries initiated were rejected and no reference was made to the Tribunal. Similarly, the
restrictions imposed on an applicant, a citizen of India doing a national duty of pointing out the presence of
an illegal migrant in Assam, that he should be resident of same police station or same sub-division where
the illegal migrant resides or is found does not carry any sense as these migrants keep moving. The
requirement regarding application being accompanied by affidavits of two persons who are residents of
same police station or being accompanied by declaration of another person who is resident of same sub-
division or that not more than ten such applications can be filed or ten such declarations made do not
serve any purpose except to create hurdles in the matter of identification and deportation of illegal
migrants. Not every person feels that he owes a duty towards the nation and he should initiate
proceedings for deportation of an illegal migrant. The applicant also incurs risk to his own security and
safety besides spending time and energy in prosecuting the matter. Similarly, there is hardly any sense in
making a provision for mentioning the time and date of visit to a place by an enquiry officer in a diary. A
deep analysis of the IMDT Act and the Rules made thereunder would reveal that they have been purposely
so enacted or made so as to give shelter or protection to illegal migrants who came to Assam from
Bangladesh on or after 25th March, 1971 rather than to identify and deport them.

39. We have considered the provisions of the Foreigners Act, Foreigners (Tribunals) Order, 1964 and also
the IMDT Act and the Rules made thereunder in considerable detail in the earlier part of the judgment.
They clearly demonstrate that the procedure under the Foreigners Act and also under the Foreigners
(Tribunals) Order, 1964 is far more effective in identification and deportation of foreigners as compared to
the procedure under the IMDT Act and the Rules made thereunder. There being no corresponding
provision like Section 9 of the Foreigners Act which places the burden of proof upon the person concerned
who claims to be an Indian citizen, which is absolutely essential in relation to the nature of inquiry being
conducted regarding determination of a person's citizenship (where the facts on the basis of which an
opinion is to be formed and a decision is taken are entirely within the knowledge of the said person) has
made the task of the law enforcement agencies of the State not only difficult but virtually impossible. The
IMDT Act has been so enacted and the Rules thereunder have been so made that innumerable and
unsurmountable difficulties are created in the matter of identification and deportation of illegal migrants.
No elaborate discussion on this aspect is required as the figures disclosed in the affidavits filed by the
Union of India and the State of Assam speak for themselves. Though inquiries were initiated in 310759
cases under the IMDT Act but out of this only 10015 persons were declared as illegal migrants and finally
only 1481 illegal migrants were physically expelled upto 30th April, 2000. This comes to less than half per
cent of the cases initiated. In the State of West Bengal, where the Foreigners Act is applicable, 489046
persons were actually deported between 1983 and November 1998, which is a lesser period and even this
result was termed as unsatisfactory in the counter affidavit filed by the Union of India. Thus, there cannot
be even a slightest doubt that the application of the IMDT Act and the Rules made thereunder in the State
of Assam has created the biggest hurdle and is the main impediment or barrier in identification and
deportation of illegal migrants. On the contrary, it is coming to the advantage of such illegal migrants as
any proceedings initiated against them under the said provision which, as demonstrated above, almost
entirely ends in their favour, enables them to have a document having official sanctity to the effect that
they are not illegal migrants. As already discussed, the presence of such a large number of illegal migrants
from Bangladesh, which runs into millions, is in fact an "aggression" on the State of Assam and has also
contributed significantly in causing serious "internal disturbances" in the shape of insurgency of alarming
proportion making the life of the people of Assam wholly insecure and the panic generated thereby has
created a fear psychosis. This has resulted in seriously hampering the growth of the State of Assam
although it has vast natural resources as people from rest of the country have a general perception that it
is a disturbed area and this factor has resulted in not generating any employment opportunity which has
contributed to a large measure in giving rise to insurgency. The impact is such that it not only affects the
State of Assam but it also affects its sister States like Arunachal Pradesh, Meghalaya, Nagaland, etc. as the
route to the said places passes through the State of Assam.

- Article 14 & the IMDT Act

45. As mentioned earlier, the influx of Bangladeshi nationals who have illegally migrated into Assam pose a
threat to the integrity and security of north-eastern region. Their presence has changed the demographic
character of that region and the local people of Assam have been reduced to a status of minority in certain
districts. In such circumstances, if the Parliament had enacted a legislation exclusively for the State of
Assam which was more stringent than the Foreigners Act, which is applicable to rest of India, and also in
the State of Assam for identification of such persons who migrated from the territory of present
Bangladesh between 1st January, 1966 to 24th March, 1971, such a legislation would have passed the test
of Article 14 as the differentiation so made would have had rational nexus with the avowed policy and
objective of the Act. But the mere making of a geographical classification cannot be sustained where the
Act instead of achieving the object of the legislation defeats the very purpose for which the legislation has
been made. As discussed earlier, the provisions of the Foreigners Act are far more effective in identification
and deportation of foreigners who have illegally crossed the international border and have entered India
without any authority of law and have no authority to continue to remain in India. For satisfying the test of
Article 14, the geographical factor alone in making a classification is not enough but there must be a nexus
with the objects sought to be achieved. If geographical consideration becomes the sole criteria completely
overlooking the other aspect of "rational nexus with the policy and object of the Act" it would be open to
the legislature to apply enactments made by it to any sub- division or district within the State and leaving
others at its sweet will. This is not the underlying spirit or the legal principle on which Article 14 is founded.
Since the classification made whereby IMDT Act is made applicable only to the State of Assam has no
rational nexus with the policy and object of the Act, it is clearly violative of Article 14 of the Constitution
and is liable to be struck down on this ground also.

- Final Verdict
57. To sum up our conclusions, the provisions of the Illegal Migrants (Determination by Tribunals) Act,
1983 are ultra vires the Constitution of India and are accordingly struck down.xx The Illegal Migrants
(Determination by Tribunals) Rules, 1984 are also ultra vires and are struck down. As a result, the Tribunals
and the Appellate Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983
shall cease to function. The Passport (Entry into India) Act, 1920, the Foreigners Act, 1946, the Immigrants
(Expulsion from Assam) Act, 1950 and the Passport Act, 1967 shall apply to the State of Assam. All cases
pending before the Tribunals under the Illegal Migrants (Determination by Tribunals ) Act, 1983 shall stand
transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided
in the manner provided in the Foreigners Act, the Rules made thereunder and the procedure prescribed
under the Foreigners (Tribunals) Order, 1964. In view of the finding that the competent authority and the
Screening Committee had no authority or jurisdiction to reject any proceedings initiated against any
alleged illegal migrant, the orders of rejection passed by such authorities are declared to be void and non
est in the eye of law. It will be open to the authorities of the Central Government or State Government to
initiate fresh proceedings under the Foreigners Act against all such persons whose cases were not referred
to the Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 by the
competent authority whether on account of the recommendation of the Screening Committee or any other
reason whatsoever. The appeals pending before the Appellate Tribunals shall be deemed to have abated.

58. In view of the discussion made above, the writ petition succeeds and is allowed with the following
directions : (1) The provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Illegal
Migrants (Determination by Tribunals) Rules, 1984 are declared to be ultra vires the Constitution of India
and are struck down;

(2) The Tribunals and the Appellate Tribunals constituted under the Illegal Migrants (Determination by
Tribunals) Act, 1983 shall cease to function;

(3) All cases pending before the Tribunals under the Illegal Migrants (Determination by Tribunals ) Act,
1983 shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and
shall be decided in the manner provided in the Foreigners Act, the Rules made thereunder and the
procedure prescribed under the Foreigners (Tribunals) Order, 1964.

(4) It will be open to the authorities to initiate fresh proceedings under the Foreigners Act against all such
persons whose cases were not referred to the Tribunals by the competent authority whether on account of
the recommendation of the Screening Committee or any other reason whatsoever.

(5) All appeals pending before the Appellate Tribunal shall be deemed to have abated.

(6) The respondents are directed to constitute sufficient number of Tribunals under the Foreigners
(Tribunals) Order, 1964 to effectively deal with cases of foreigners, who have illegally come from
Bangladesh or are illegally residing in Assam.

II. Assam Public Works v. Union of India, Writ Petition (Civil) No. 274 of 2009

See: https://www.scobserver.in/cases/assam-public-works-v-union-of-india-assams-national-register-of-
citizens-background/

4. ……Reference to the Constitution Bench was made by the order of this Court dated 21 st July, 2015 in the
said Writ Petition (Civil) No.311 of 2015. The issue pending is whether the expression “every person born in
India” would apply only to persons born to Indian citizens and whether the expression “either of whose
parents is a citizen of India at the time of his birth” in S.3(1)(b) of the Citizenship Act, 1955 would apply to
only a person who is born to parents one of whom is a citizen and the other a foreigner, provided he or she
has entered India lawfully and his/her stay in India is not in contravention of applicable Indian laws.

8. Rule 4A of the 2003 Rules carves out special provisions in the matter of preparation of National Register
of Indian Citizens in the State of Assam. The provisions of Rule 4A are a departure to the provisions
contained in Rule 4 of the 2003 Rules which deals with preparation of National Register of Indian Citizens in
the rest of the country. Rule 4A(2) specifically provides that the National Register of Indian Citizens in the
State of Assam shall be prepared by inviting applications from all the residents calling for specified
particulars relating to each family and individual including the citizenship status based on the National
Register of Citizens 1951 and the electoral rolls upto the midnight of the 24th day of March,1971. The
aforesaid two documents have been supplemented by an additional list of documents, any of which can be
utilized by a claimant in support of his/her claim for inclusion in the NRC that the claimant or his ancestor
had been residing in the State of Assam on or before 24th March, 1971.

9. Rule 4A(4) also provides that the manner of preparation of National Register of Indian Citizens in the
State of Assam will be as laid down in a separate Schedule appended to the 2003 Rules.

11. The special provision contained in Rule 4A of the 2003 Rules read with the Schedule framed
thereunder, for preparation of National Register of Indian Citizens in the State of Assam, had been
necessitated on account of the provisions contained in Section 6A of the Act. which are special provisions
as to grant citizenship to persons covered by the Assam Accord. Under Section 6A(2) of the Act, all persons
of Indian origin who had come to the State of Assam before 1st day of January, 1966 from the specified
territory (defined as territories included in Bangladesh) immediately before the commencement of the
Citizenship (Amendment) Act, 1985, including such persons whose names were included in the electoral
rolls for 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 are deemed to be citizens of India as
on and from 1st day of January, 1966.

15. The entire NRC exercise having been performed on the aforesaid basis, the same cannot be now
ordered to be reopened by initiation of a fresh exercise on certain other parameters that have been
suggested on behalf of the intervenors/applicants on the strength of the provisions of Section 3(1)(a) of
the Act.