Sarbananda Sonowal v. Union of India, A.I.R. 2005 S.C.
2920
Author(s): Parag Sayta
Source: Student Bar Review , 2006, Vol. 18, No. 2 (2006), pp. 95-102
Published by: Student Advocate Committee
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Current Developments
Sarbananda Sonowal v. Union of India,
A.I.R. 2005 S.C. 2920
Parag Sayta*
In Sarbananda Sonowal v . Union of India, the Hon'ble Supreme Court
struck down the polemical Illegal Migrants (Determination by
Tribunals) Act, 1983, ("I.M.D.T. Act") on grounds of violation of
Articles 14 and 355 of the Constitution . This case can be considered
seminal because the law in this area is rudimentary and subsequent
judges will invariably look to this case to throw light on intricate
jurisprudential issues that would naturally arise, especially given
the fact that liberal democracies the world over are bound to face
myriad problems arising out of immigration . This note, while
agreeing with the ultimate decision, seeks to explore the legal
dimensions of the case and critique the rationale offered by the
Supreme Court in striking down the Act . In the first part, a brief
background to the case is provided. In the second part, the note
discusses the decision of the Supreme Court and then endeavours to
offer plausible alternative grounds on which this Act would not pass
the muster of constitutional validity.
I . Background To The Case
II . Decision Of the Supreme Court
A. Article 355
B. Article 14
C. Article 29(1)
D. Rights of Illegal Aliens
III. Conclusion
* III
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Vol. 18(2) Student Bar Review 2006
I. Background To The Case
The general legislation on the area of immigration is the Foreigners
1946. This Act provides inter alia that the "burden of proof' would l
person alleged to be a foreigner to prove that he is not.1 The I.M.D.T.
enacted to deal with the peculiar and large scale problem of illegal immig
Assam post 1971.2 This Act was meant to expedite the process of iden
and deportation of illegal immigrants.3 Ironically, however, the Act ame
the position of illegal immigrants not only by shifting the burden of proo
the authorities seeking to prove a person to be an illegal immigrant,4
impossibility given the surreptitious manner in which illegal immigratio
place, but also by making various other provisions which made depor
illegal immigrants more difficult.5 As a result of these lax provisions, the
of deportations under the I.M.D.T. Act was minuscule despite the ver
change in the linguistic and religious demography of Assam which clearl
to clandestine immigration from Bangladesh.6 The matter of Bangl
infiltration came up before the Supreme Court via a Public Interest L
("P.I.L.").7 The Supreme Court expressed anguish at this infiltration and d
the Union of India and the concerned states to file a status report on the
also expressed hope that the governments concerned would take effectiv
to tackle the issue. Later, a writ petition was also filed by way of public
litigation for declaring certain provisions of the I.M.D.T. Act as ultra
Constitution of India, null and yoid, and consequent declaration that the F
Act, 1946 and the Rules made thereunder shall apply to the State of Assa
1 § 9, Foreigners Act, 1946; Union of India v. Ghaus Mohammed, A.I.R. 19
1526.
2 Preamble, I.M.D.T. Act.
3 Id.
4 There is no provision in the I.M.D.T. Act analogous to § 9, Foreigners Act
Moreover, Rule 4, Illegal Migrants (Determination by Tribunals) Rules, 1984
provides for a list of factors that are to be ascertained by the inquiring authority
before action can be taken against an alleged "illegal immigrant."
5 These include inter alia § 8(1), § 8(2) and § 14, I.M.D.T. Act.
6 Sarbananda Sonowal v. Union of India, A.I.R. 2005 S.C. 2920, 2929.
7 All India Lawyer's Forum for Civil Liberties v. Union of India, (1999) 5 S.C.C. 714.
8 Sarbananda , supra note 6, at 2924.
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Sarbananda Sonowal v. Union of India
This was followed by a period where in light of recommendations made by
the Law Commission9 efforts were being made to repeal the I.M.D.T. Act.10 But due
to political vicissitudes, namely a change in the government at the Centre, the
decision to repeal the I.M.D.T. Act was reconsidered, forcing the court to
adjudicate on this issue.
II. Decision Of the Supreme Court
The Supreme Court struck down the Act on two main grounds: violat
Articles 14 and 355. It also touched upon certain other issues, viz . the pu
compatibility of the Act with Article 21 and the rights of illegal aliens. E
these issues will be analyzed in detail and an attempt will be made to put
some additional propositions which could have added coherence to the
of the Court.
A. Article 355
This Article, which casts a duty upon the Centre to protect the States
"external aggression and internal disturbance", is one of the two pillars o
the decision of the Supreme Court is based. The argument of the Court, d
from U.S., U.K. and international law, was that the word "aggression" is to
in a wide manner. The Court said that the word "aggression", used deliber
our founding fathers in contradistinction to the word "war", would in
"invasion of unarmed men in totally unmanageable proportion (if it) wer
only impair the economic and political well-being of the receiving victim
but to threaten its very existence."11 The Court further relied on the repor
Governor of Assam which said that illegal immigration was the primary
attendant problems like insurgency and ethnic strife in the State of Assam
in essence, the argument made by the Court was that by passing the I.M.
which failed to check illegal immigration, the Union failed in its duty to
the State of Assam against "external aggression and internal disturb
warranting that the said legislation be struck down for being ultra vires
355-
9 Law Commission of India, 175™ Report (2000). As the nomenclature suggests, th
proposed synchronization and revamping of the law on the issue of illegal imm
One of the important recommendations was the repeal of the I.M.D.T. Act.
10 See I.M.D.T. (Repeal) Bill, 2003.
11 Sarbananda , A.I.R. 2005 S.C. 2920, 2946-2949.
12 Id. at 2949.
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Vol. 18(2) Student Bar Review 2006
The question that needs to be analyzed is
to be used in such situations even discoun
construing the word "aggression."
The intention behind Article 355 was to e
affairs of the States on the limited groun
mentioned thereunder.14 The idea was to
interfere in what would otherwise be th
circumstances.15 Further, it has been held
source of power for interference with the
but is in the nature of justification for the
356 and 357.16 In other words, "Article 35
the President in exceptional circumstances t
him by Article 355."17 Also, Article 355 is to
when it becomes inevitable that Article 356
355 is looked at in this context that one real
has done and the paradigm shift that it h
Articles 355 and 356 are read together as
point19 state, then the striking down of the
making the Foreigners Act, 1946 applicab
Governor's Report goes against the ratio of
Bommai a very limited extent of judicial re
allowed. This would then necessarily be tr
Articles are inextricably intertwined. If t
as correct, it would not be difficult then to
Court could order the Centre to physicall
13 See AG. Noorani, Constitutional Questions in I
construction of Article 355.
14 IX Constituent Assembly Debates 133 (1950). It
exist in the U.S. Constitution (Article 4, § 4)
119). However under those Constitutions, th
application by the State Executive.
15 Rameshwar Prasad v. Union of India, MAN
of the Commission on the Inter-State Relations
16 S.R. Bommai v. Union of India, (1994) 3 S.
17 Kuldip Singh, J. in Bommai quoted with a
237.
18 Id.
19 S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1; Re President, (2002) 8 S.C.C. 237;
Rameshwar Prasad v. Union of India, MANU/SC/0399/2006.
20 (1994) 3 S.C.C. 1.
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Sarbananda Sonowal v. Union of India
disturbance" or even declare emergency in a state. This would clearly be an
undesirable infringement on what is correctly the domain of the executive. Thus,
it is submitted that the striking down of the I.M.D.T. Act on grounds of violation of
Article 355 is per incuriam.
The Supreme Court, by focusing on the law and order aspects of the
immigration problem has probably given state governments some leeway to pass
legislation on issues arising out of illegal immigration on the ground that it leads
to "disturbance of public order."21
B. Article 14
The second ground for striking down the I.M.D.T. Act was that it was ultra
vires Article 14 of the Constitution. Here, the Supreme Court applied the standard
two pronged test used as a touchstone to measure the vires of any legislation qua
Article 14: Is the classification rational and based on intelligible differentia; and,
has the basis of differentiation any rational nexus with its avowed policy and
object?22 Applying this test to the I.M.D.T. Act, the Court held that the impugned
legislation did not meet the criterion. Comparing the Foreigners Act, 1946 with
the I.M.D.T. Act, the Court observed that under the I.M.D.T. Act, the illegal
immigrant in Assam had far greater rights as compared to an illegal immigrant
anywhere else in the country. Moreover, the Court held that since the object of
the Act was to expedite the process of identification and deportation of illegal
immigrants, the classification made whereby I.M.D.T. Act is made applicable only
to the State of Assam had no rational nexus with the policy and object of the Act,
it was violative of Article 14. The Act would have been valid if the I.M.D.T. Act had
more stringent provisions than the Foreigners Act, 1946. While a puritanical
approach towards fundamental rights including Article 14 has since long been
abandoned; the issues are (a) whether the Act could be struck down within the
existing framework of Article 14? and if yes, (b) whether the court could have
made its reasoning more cogent?
The reasoning of the Court can be reduced to the proposition that since the
immigrants in Assam were treated more leniently than those elsewhere in the
country, the law was violative of the right to equality of the people of Assam.
There are conceptual problems with this approach as the Court did not recognize
21 Schedule 7, List II, Entry 1, Constitution of India, 1950.
22 The Court quoted Gajendragadkar, J. in Kangshari Haldar v. State of West Bengal,
A.I.R. i960 S.C. 457. There are numerous other cases laying down the same principle.
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Vol. 18(2) Student Bar Review 2006
any positive right that the people of Assam
was struck down. Moreover, the right t
Central Government.23 The difficulty
preservation of language and culture ha
as then the right to equality could have b
of the Assamese people. The other appro
holding the legislation to be arbitrary or
to equality"24 as under this approach, any
se discriminatory.25
C. Article 29(1 )
The Court insinuated that Article 29
given the grave effects of illegal immigr
culture" but refused to adjudicate on the
the Court could have given this approac
Under the ubiquitous Article 21, the Su
occasion observed that "life in its expan
gives meaning to a person's life includin
with dignity of a person."26 Moreover, th
to ensure that no law which would advers
culture and language is passed.27 These ri
only amongst academicians but also amo
reading of Articles 21 and 29(1) would hav
down the I.M.D.T. Act without leading t
out of the approach taken by the Court.
23 Hans Muller of Nuremberg v. Superintend
S.C. 367.
24 E.P. Royappa v. State of T.N., (1974) 4 S.C.C. 3.
25 A.L. Kalra v. Project and Equipment Corporation, (1984) 3 S.C.C. 216.
26 C.M. Mudaliar v. Idol of Sri Swaminathswami Swaminathswami Thirukoil, (1996)
8 S.C.C. 525; Madhu Kishwar v. State of Bihar, (1996) 5 S.C.C. 125; Ramsharan
Autyanuprasi v. Union of India, A.I.R. 1989 S.C. 549.
27 II Constituent Assembly Debates 891-897 (1950).
28 Article 22, Universal Declaration of Human Rights, G.A.Res. 217, U.N. G.A.O.R.,
pmbl., U.N. Doc. A/811 (1948); Article 27, International Covenant on Civil and
Political Rights, Mar. 23, 1976, pmbl., 999 U.N.T.S. 172. More recently, § 31 of the
Constitution of South Africa recognizes these rights underlining their importance.
For a theoretical perspective on group rights, see Will Kymlicka, Multicultural Citizenship:
A Liberal Theory of Minority Rights (1996).
IOO
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Sarbananda Sonowal v. Union of India
D. Rights of Illegal Aliens
It was essential that the Court discussed the rights of aliens especially in the
context of international law given the Constitutional imperative requiring the
State to "foster respect for international law."29 The Court, looking at this aspect
in some detail correctly concluded that "States have a right to expel aliens."30
But States can, through international obligations or national law grant
certain additional rights to aliens.31 In India, aliens are also protected under Article
21. 32 On this basis, it was averred that since the I.M.D.T. Act laid down a "fair
procedure", it satisfied the criterion under Article 21 and thus could not have
been struck down. This argument could have been easily rejected on the ground
that although Articles 14, 19 and 21 are to be read together,33 it would be
preposterous to presuppose that any legislation violating Article 14 would have
to necessarily violate Article 21 as well. But the Supreme Court took the
opportunity to comment on the vires of the Foreigners Act, 1946. It used
international law sources to adumbrate to the right of States to expel illegal
immigrants and came to conclusion that the illegal immigrants do not have any
legal rights. With respect, the Supreme Court's reasoning in this regard is skewed.
Once it is accepted that Article 21 applies to foreigners also, the mandate of those
seeking to defend the validity of the Foreigners Act, *1946 would be to show that
its provisions do not violate Article 21 rather than adverting upon the right of
states to expel illegal aliens. Though it has been held that the deportation of illegal
immigrants under the Foreigners Act, 1946 is not violative of Article 21;34 it must
be pointed out that the biggest difference between the I.M.D.T. Act and the
Foreigners Act, 1946 is on the question of burden of proof which had not been
addressed by the Supreme Court before. It is submitted that this cannot be a
ground for challenging the Foreigners Act, 1946 as the Supreme Court has, on
numerous occasions held that there is no fundamental "right to presumption of
29 Article 51(c), Constitution of India, 1950; Giani Bakshish Singh v. Government of
India, A.I.R. 1973 S.C. 2667.
30 Louis De Radt v. Union of India, A.I.R. 1991 S.C. 1886; Khudiram Chakma v. Union
of India, A.I.R. 1994 S.C. 1461; Oppenheimer, International Law 940 (Robert Jennings
and Arthur Watts eds., 9th ed. 1996).
31 Malcolm Shaw, International Law 736 (4th ed. 2001).
32 Chairman, Railway Board v. Chandrima Das, A.I.R. 2000 S.C. 988.
33 Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
34 Louis De Radt v. Union of India, A.I.R. 1991 S.C. 1886; Khudiram Chakma v. Union
of India, A.I.R. 1994 S.C. 1461.
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Vol. 18(2) Student Bar Review 2006
innocence" under Article 21.35 Moreover,
dealing with illegal immigrants even in o
III. Conclusion
Under the power conferred by section 3 of the Foreigners Act
Order has been passed empowering the Central Government to crea
tribunal to deal with foreigners in Assam.37 This matter is now sub jud
this Order does not replicate the provisions of the I.M.D.T. Act, it
more "immigrant friendly" than the existing law.39 This Order goes a
spirit of the decision in Sarbananda . Constitutional propriety would h
that the Foreigners Act, 1946 ought to have been applied to Assam in t
existing form.
To conclude, it was important for the Supreme Court not only
strong and clear policy directive but also to ensure that this was f
constitutional principles and ideals envisaged by our founding fathers.
Unfortunately, the Supreme Court, while ensuring the former, has not, it is
submitted, based its decision on cogent legal/constitutional postulates. This could
have been done by (a) avoiding the use of Article 355; (b) using Article 14 in a
more nuanced and conceptually sound manner; (c) asserting that the right to
culture and language of the Assamese people as guaranteed under Articles 21 and
29(1) has been violated; and (d) clearly showing that the right to life of the
immigrants is not violated by the application of the Foreigners Act, 1946.
35 K. Veeraswami v. Union of India, (1991) 3 S.C.C. 655; P.N. Krishnalal v. Govt, of
Kerala, (1995) S.C.C. (Cri.) 466.
36 § 8, U.K. Immigration Act, 1971; § 291 and § 318, Immigration and Nationality Act
of USA; Immigration and Refugee Protection Act, 2001 of Canada; § 188 of the
Migration Act, 1958 of Australia. The underlying principle is that certain facts are
peculiarly within the knowledge of a person should prove it and not the party who
avers the negative.
37 The Foreigners (Tribunals for Assam) Order, 2006.
38 SC summons Centre over amendment to Foreigners Act, available at
www.timesofindia.indiatimes.com/articleshow/1475315 (last visited April 23,
2006).
39 Foreigners (Tribunal) Order, 1964.
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