New Delhi: The Supreme Court on Tuesday held unconstitutional the controversial Foreigners (Tribunals for Assam) Order, 2006, which puts the onus of proving a person foreigner on the complainant.

Under the Foreigners Act, 1946, the burden of proof that one is not a foreigner lies on the person who is alleged to be so.

The Foreigners (Tribunal) Order 1964 was issued for determination of illegal immigrants. The 1964 order was amended in 2006, making it inapplicable to Assam.

A Bench consisting of Justices S.B. Sinha and P.K. Balasubramanyan said: "It appears that the 2006 order [issued after the Illegal Migrants (Determination by Tribunals) Act was declared unconstitutional] has been issued just as a cover-up for non-implementation of the directions of this court."

Last year the court struck down the IMDT Act, allowing a petition filed by Sarbananda Sonowal, and directed the Centre to determine the status of foreigners in Assam under the Foreigners Act.

Illegal provision stays

In their present petition, Mr. Sonowal and Charan Chandra Deka contended that the Act was quashed as it put on the state/complainant the onus of proving that a person was an illegal migrant for the purpose of deportation. Now the same provision that had been held illegal was incorporated in the amended Foreigners Act.

Agreeing with the submission, the Bench said: "The earlier decision in Sonowal 1 referred to the relevant material showing that such uncontrolled immigration into northeastern States posed a threat to the integrity of the nation. What is therefore called for is a strict implementation of the directions of this court issued in Sonowal 1, so as to ensure that illegal immigrants are sent out of this country. We have to once again lament with Sonowal 1 that there is a lack of will in the matter of ensuring that illegal immigrants are sent out."

Writing the judgment, Justice Sinha said: "Instead of obeying the mandamus issued essentially in the interests of national security and to preserve the demographic balance of a part of India, that is Bharat, and implementing the 1964 order in Assam in letter and in spirit, the authorities that be have chosen to make the 1964 order itself inapplicable to Assam."

The Bench said: "Adequate facts, nay, no fact is pleaded to justify such apprehension. It is not explained how Indian citizens would suffer if the 1964 order is enforced. Nothing was also shown at the time of arguments to persuade us to come to a conclusion that the 1964 order worked harshly on anyone who was sought to be proceeded against under the Foreigners Act and under that order. The present exercise is therefore seen to be not acommendable attempt to evade the directions issued by this court in the earlier round."

The Bench said, "Though we would normally desist from commenting, when the security of the nation is the issue as highlighted in Sonowal 1, we have to say that the bona fides of the action leave something to be desired."

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