On October 15, 1983, the Government of India passed an Ordinance to set up tribunals for determination of the question whether a person is or is not an illegal migrant.[1], which was further, followed up as an Act in the month on December, titled as ,the, Illegal Immigrants (Determination By Tribunals) Act, 1983.

The Act defined an illegal immigrant as a person, who entered the Indian soil, illegally, after the independence of the East Pakistan i.e. 25th March, 1971 or a person who is a 'foreigner'or one who has entered 'without any proper valid and lawful travel documents'.[2]Herein, it is very crucial to state that the Act was not applicable to any of the illegal immigrants who infiltrated the Indian lands, before 1971, thus, was a major setback and limitation on its enforce-ability.

Further, this Act was exclusively applicable in the state of Assam and for the rest of the country, Foreigner Act of 1946 was to be applied, hence, at one time two laws were in place to determine the validity of a citizen and the most unfortunate deliberation is this that there was no member of Parliament from the Assam's Brahmaputra Valley, when this Act was tabled and subsequently passed.

Along with this, the greatest anomaly which was produced was this that under the Foreigners Act, the liability or the onus to proof that one is not an illegal immigrant was on the accused but under this Act it was on the Complainant, wherein, the Police authorities had the responsibility to not only identify such personnel's (on the complaint filed through a person through the deposition of a fees of 10 Rs.), but also to proof in the court of law, the illegitimacy of the said person; thus, rendering the process of identification, trial and conviction of an illegal immigrant to be extremely cumbersome and practically unfeasible and non-viable in its application which is evident, as only 7,854 Bangladeshis faced prosecution under the IMDT Act in 2001, 5,652 in 2002 and 26,796 in 2003, against the Foreigners Act of 1946, under which, 300,000 Bangladeshi's deported between 1962 and 1984. Along with this, whenever a complaint was filed the accused used to change his residence to escape the trial thus, complicating the aggregation of the quagmire.[3]

However, Allowing a writ petition filed by Asom Gana Parishad MP Sarbananda Sonowal, a three-judge Bench comprising, Chief Justice RC Lahoti and Justice GP Mathur and PK Balasubramnyan,[4] unanimously declared the 1983 Illegal Migrants (Determination by Tribunal) Act and rules framed in 1984 as being ultra vires of the Constitution.[5] While Sonowal had contended that IMDT Act is only encouraging vote bank politics without addressing the problem of illegal migrants, the Assam government had supported the law.[6]

The Apex Court ordered the closure of the courts established through the IMTD Act and the transfer of cases to the Foreigners Tribunal court, established under Section 3 of The Foreigners Act, 1946 . The court primarily thus, held that the Act made it even more complex to identify, leave alone deport; the 
illegal immigrants.

Thus, the SC held that the onus of proving his/her citizenship was on the accused and not on the complainant as it is practically not viable for the state to have all the relatives to present in the court, had the individual be an actual illegal immigrant.

Along with this, Article 355, which is an emergency provision, laid down in Part XVIII of the Constitution, casts a duty upon the central government to protect the states against external aggression and internal disturbance. [7] The Court argued that by enacting the IMDT Act, which apparently failed to check irregular immigration, the Central Government failed in its duty to protect the citizens of Assam against external aggression and internal disturbance warranting that the said legislation be repealed for being in violation of Article 355.[8]

Further, the Supreme Court in the year 2006 even struck down the Foreigners (Tribunals for Assam) Order, 2006; as the government again passed this distinctively for Assam wherein, through the Foreigners (Tribunals) Amendment Order, 2006; the Foreigners (Tribunals) Order, 1964, was made applicable to the whole of India but except Assam; holding that the liability to proof shall lie on the accused and not the complainant which was provided by the Foreigners (Tribunals for Assam) Order, 2006, thus, was stuck down.[9]

Through this, the Supreme Court held that the Foreigner Tribunal established through The Foreigners (Tribunals) Order, 1964 under Section 3 of The Foreigners Act, 1946 would have full enforceability and power to try such cases rather than any other discriminatory alternatives, forging the constitutionality of the same. 

End-Notes:

1. G. Vinayak, What is the Illegal Migrants Act? , Rediff, https://www.rediff.com/news/2005/jul/12act1.htm (02.1.20)
2. Sec 3(c), The Illegal Migrants (Determination By Tribunals) Act, 1983 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.
3. SC strikes down IMDT Act as unconstitutional' Economic Times//economictimes.indiatimes.com/articleshow/1168803.cms?from=mdr&utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (03.01.2020)
4. Santosh Choubey, How Congress misused Foreigners Act in Assam, India Today https://www.indiatoday.in/india/story/how-congress-misused-foreigners-act-in-assam-1304900-2018-08-04 (02.01.20)
5. Abir Phukan, Citizenship Bill: Legislative Chaos or Amnesia?, The Wire https://thewire.in/rights/citizenship-bill-legislative-chaos-or-amnesia (02.01.2020)
6. Sarbananda Sonowal v. Union Of India, Writ Petition (civil)  117 of 2006
7. Article 355, The Constitution Of India, 1949
   Duty of the Union to protect States against external aggression and internal disturbance It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution
8. Amnesty International India's Designed to Exclude: How India's Courts are Allowing Foreigners Tribunals to Render People Stateless in Assam: https://amnesty.org.in/wp-content/uploads/2019/11/Assam-Foreigners-Tribunals-Report-1.pdf (03.02.2020)
9. V. Venkatesan, The NRC case: The Supreme Court's role, Frontline Hindu https://frontline.thehindu.com/cover-story/article29498707.ece (03.01.2020)

Written By: Saharshrarchi Uma Pandey, Maharashtra National Law University, Nagpur.