Assam Sanmilita Mahasangha & Ors. Vs. Union of India & Ors.
[Writ Petition (Civil) No. 562 of 2012]
Assam Public Works Vs. Union of India & Ors.
[Writ Petition (Civil) No. 274 of 2009]
All Assam Ahom Association & Ors. Vs. Union of India & Ors.
[Writ Petition (Civil) No. 876 of 2014]
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)
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
(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:
"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 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 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 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.
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.
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;
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'
Government of Assam
Sd/-
In the Presence of
(Biraj Sharma)
Sd/-
Convenor
(Rajiv Gandhi)
All Assam Students' Union
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 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,-
(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 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 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 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 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 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;
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:
"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." 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 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 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. 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.
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. 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:
"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).
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."
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 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 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 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- 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 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 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-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.
(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?
(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 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
