LexSARBANANDA SONOWAL versus UNION OF INDIA
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.... SARBANANDASONOWAL A' v. UNION OF INDIA DECEMBER 5, 2006 [S.B. SINHA AND P.K. BALASUBRAMANY AN, JJ.] B Constitution of India-Articles 14, 21and355-Foreigners Act, 1946- Citizenship Act, 1955-Jllegal Migrants (Determination by Tribunals) Act, 1983 & Rules of 1984-Foreigners (Tribunals) Order, 1964-Foreigners C (Tribunal) Amendment Order, 2006-Supreme Court earlier struck down 1983 Act as unconstitutional and directed transfer of cases pending in Tribunals under the Act to the Tribunals constituted under 1964 Order-2006 Amendment Order introduced to amend 1964 Order making it inapplicable to State of Assam-Writ Petitions challenging the validity of the 2006 Amendment Order before Supreme Court-Central Government justifying the amendment D contending that all complaints now would be compulsorily referred to Tribunal without making preliminary enquiry-Correctness of-Held, 2006 Amendment Order is violative of Articles 14 and 355 of the Constitution-Amendment Order is a subordinate legislation and hence it cannot violate a Central Act and nullify the directions of this Court by making 1964 Order inapplicable to E the State-amendment Order does not debar authorities to make preliminary inquiry of a complaint before reference to the Tribunal-No facts/reasons given justifying the amendment, hence Amendment Order struck down. Petitioner filed a Writ Petition before this Court against Union of India and others for declaring some of the provisions of the Illegal Migrants F (Determination by Tribunals) Act, 1983 as constitutional, null and void and a consequent declaration that the Foreigners Act, 1946 and the Rules made thereunder would apply to the State of Assam. This Court in, Sarbananda Sonowal v. Union of India & Ors., (2005) 5 SCC 665, allowed the Writ Petition and struck down the provisions of the 1983 Act as being unconstitutional. This Court directed that the Tribunals and Appellate Tribunals constituted G under the Act shall cease to function; and that all cases pending before the Tribunals under the Act shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided in the 167 H 168 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. 'A manner provided thereurider. :tliis Court held that the illegal migrants coming into the State of Assam cannot be treated differently from those who migrated to other parts of the country lfaving regard to'ttie provisions of he Citizenship Act, 1955 and the 1964 Order. · i· 1 I -' The Central Government amended the provisions of the 1964 Order B by bringing Foreigners '(Triliitrial),Amendfuent.Oriler;r20061making the 1964 Order inapplicable to the State of Assam. The !petitioner, \in'the .present Writ .Petitions, contended that the Central Governnient,"bY way'ofa subordihate.legislation by bringing the Amendment Order; 2006, sought to 'nullify;the directions of this Coud in C its earlier decision to get·all .pending <easesifetating'to alleged immigrants decided by the t'ribunal mider the 1964 Order; an<I .that the respondent, instead-of obeying the'mandamus·of this ;Gourt;·given in the interests of national security and•to preserve demographic'· balance and implementing the 1964 Order in·Assam; chose.to make-the•l964.0rder inapplicable to D the State.·. , • \. _l 1' . • 1~. \.;: .The ·respo_nd_ents conte_nded that the,provisi.on_s ,of..th~ ~Q06 Order had been brought)nto exjstence only with a view to given effect to ~he directions ofthis·Court;,that the amendment.was !Dade to the 1964 Order on the apprehensions ofltrouble/victimization ~f genui_ne. citizens aMh~ E hands of the specified authori~ies in the-nam~, of d~te~tio_n and depc:>.r_:tation of forf:!igners was expressed; that suc!t a-,pr<wi~i_on\.had .. to be brought}_i;t due to higher1,degree.of.in_cu_rsion of_ill_ega_l,~igra11~~ i_nto Assa~ when compared to other States; that, under the 2006 Order, the Central Government sliouldcom-ptilsorily;refer a(niatter.to:the TiibunaJ:-which was F earlier- ·n·ot ·ma'nClaforyi under. the 11964 '0rder;· that the burden of• proof urider 'the 1946lAd 1 is~notrdiluted;:.ttiat the provisions of1Article 21ior.the Constittition;tJeiiigiapplicable to:aiperson 'Wh0-had1already:.set his :feet in India,· h-e would :be entitled to:claitn ~compliante of the:pririciples of natural justice 'which ·,niay .not ibe;hece'ss·1i:ry :in:ifespect of a person. who has ;yet. to enter-the
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