[Assam] SC strikes down Foreigners Order 06

Wed Dec 6 09:27:11 PST 2006

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AASU activists rejoicing in Guwahati on Tuesday after the Supreme Court struck down the Foreigners Tribunal Amendment Order 2006.  UB Photos

SC strikes down Foreigners Order 06
>From Kalyan Barooah
 NEW DELHI, Dec 5  In a major setback to the Central Government, the Supreme Court today struck down the controversial Foreigners (Tribunals for Assam) Order, 2006, brought in haste by the Centre ahead of the Asom Assembly elections, and asked the State Government to set up the tribunals under the Foreigners Order 1964, within four months. The Supreme Courts verdict, delivered by a Division Bench comprising Justice SB Sinha and Justice PK Balasubramanyam in a packed court room, is the second blow to the Central and the State governments after the repeal of the IM(DT) Act. The notification was the outcome of the recommendation of the Group of Ministers constituted by the Prime Minister Manmohan Singh with External Affairs Minister Pranab Mukherjee as the chairman. The Order, notified on February 10 and was dubbed as a bid to bring the defunct IM(DT) Act through the back door, puts the onus of proof on the complaints, replication of a clause in the IM(DT) Act.

The Order was challenged first by Charan Deka of BJP and Sarbananda Sonowal of AGP, alleging violation of the Supreme Court verdict. 

The Apex Court, which had reserved the verdict on May 5, this morning ordered scrapping of the Amendment Order describing it as unconstitutional. The Court ordered the State Government to expedite the constitution of the Tribunals as ordered in the IM(DT) Act order.

Justice Sinha read out the Operative part of the verdict and it was all over in matters of minutes. Interestingly none of the two petitioners were present in the court room, when the order was read out. The court room, however, was packed with advocates and media men. The Court also ordered the Government to pay Rs 25,000 to the petitioners, reimbursements of their expenditure for fighting the case.

The case had attracted the best of the legal brains given the stakes involved. Sonowal had retained the services of Ashok Desai, while Deka managed to pool the resources of Arun Jaitley and Ravi Shankar Prasad. Solicitor General GE Vahanvati represented the Government of India, while Asom Governments standing Counsel hired the services of senior counsel KK Venugopal.

The Centre had defended the controversial Foreigners (Tribunals for Assam) Order, 2006 contending that it was aimed at preventing harassment to genuine Indian citizens in the name of detection and deportation. The separate procedure was needed in view of difficulties faced in identifying the illegal immigrants due to their ethnic similarities with Bengali speaking Indians.

The Centre contended that the notifications did not in any way contravene Section 9 of the Foreigners Act, 1946 on the question of burden of proof as alleged. Senior counsel Venugopal had also claimed that the burden of proof under the Order with regard to nationality of a person would lie on that person. 

Both the petitioners sought quashing of the notification under the Foreigners Act 1946 on the ground that it put the onus on the complainant to prove that a particular person was a foreigner. The apex court declared such a procedure under the IM(DT) Act illegal last year. 

The petitioners had submitted that a comparison between the 1964 Order under the Foreigners Act and that of 2006 made it abundantly clear that the onus has again been shifted to the administration which means that no infiltrators would be detected and deported.

The Centre had sought to dispel the impression that under the 2006 Order, the burden of proof has been shifted on the complainants. However, the Court had remarked that if there was no difference between the 1964 Order and the fresh one, then what was the need for issuing the February 10 notifications.

The Supreme Court had last year declared the IM(DT) Act unconstitutional and ordered that the status of foreigners in Asom be determined under the Foreigners Act.

It was Sonowals contention that the Government of India by amending the Order of 1964 has sought to make it inapplicable in Asom. He alleged that both the notifications were intended to establish a mechanism for determining whether a person was or was not a foreigner. There is no reasonable ground for classifying Asom and the rest of the country separately and the classification has no nexus with the objects sought to be achieved.

Former secretary general of the Sadou Asom Karmachari Parishad and BJP member Charan Deka had contended that the amendment was against the letter and spirit of the Supreme Court order and amounts to contempt of the verdict.

Reaction to the verdict was along the expected line, with the BJP describing it as vindication of their stand and the Congress Party seeking time to study the Order. However, the verdict is likely to open old wounds within the Asom Congress, with a section of senior member questioning the justification of brining in such an Order in a haste.

A senior leader said that a section of them was not in favour of brining in the amendment in such a manner. But it was election time and pressure on the Party to placate the minority community offended as they were, by the IM(DT) Act verdict, the Centre had to act. Ironically, the Order did not help the Congress Party as we had to adopt a different line and tie up with the Bodo Party, said a senior Congress leader hailing from Asom, reacting to the verdict.

The BJP, meanwhile, was thrilled by the Supreme Court order, demanding that the Centre should now concentrate on implementation of the Supreme Courts IM(DT) Act order and re-start detection and deportation of illegal migrants from all-over the country.

Briefing newsmen, BJP spokesman VKMalhotra said the BJP was going to raise the issue in the Parliament. He alleged that the Congress-led UPA Government had halted detection and deportation process.

CPI MP Gurudas Dasgupta, welcomed the verdict and told newsmen that the Government of India should now address the issue of illegal infiltration because it has serious implications on the national security and unemployment situation. Both West Bengal and Asom are vulnerable to infiltration and Government of India needs to gear up, he added.

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