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13. The 1964 Order has been issued in exercise of power under Section 3 of the Foreigners Act, 1946 (“the Foreigners Act” for short). The Tribunals under the 1964 Order have the power to decide whether the person is a foreigner or not within the meaning of the Foreigners Act. The 1964 Order before its amendment in 2012 was examined by this Court in Sarbananda Sonowal vs. Union of India & Anr.1 (“Sarbananda Sonowal (I)” for short), wherein it was held that the procedure prescribed for the Tribunals constituted under the 1964 Order was just, fair and reasonable. This reasoning formed the basis to strike down provisions of the Illegal Migrants (Determination of Tribunals Act, 1983) (“the IMDT Act” for short) as ultra vires the Constitution of India, primarily on the ground that the offending Act did not contain any provision similar to Section 9 of the Foreigners Act which stipulates that the burden of proof as to whether any person is or is not a foreigner lies upon the said person notwithstanding anything contained in the Indian Evidence Act, 1872. Referring to the factual data (2005) 5 SCC 665 reflecting discernible illegal migration threatening the demographic structure of the area, resultant outbreak of insurgency in Assam and other concomitant dimensions that had greatly undermined the national security, duty of the Union Government under Article 355 of the Constitution to protect the State against external aggression and internal disturbance, it was held that the word “aggression” is a word of very wide import and would include influx of foreigners who had illegally migrated. Reference was also made to the Memorandum of Settlement between the Government of India and All India Students Union and the State of Assam. In paragraph 33 in Sarbananda Sonowal (I) acknowledging the role of the Tribunals constituted under the 1964 Order, it was observed:

“33. Clause (b) of sub-Section 6-A(1) of the Citizenship Act, 1955 defines "detected to be a foreigner" and it means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order 1964 by a Tribunal constituted under the said Order. Similarly, the explanation appended to Section 6-A (2) also refers to the "opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such person to be a foreigner". These provisions mandate the establishment and functioning of a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 in the State of Assam. The learned Additional Solicitor General and Shri K.K. Venugopal, learned senior counsel for the State of Assam have made a statement that such Tribunals are actually functioning in the State of Assam.” Thus, the IMDT Act was struck down as it did not have a provision similar to Section 9 of the Foreigners Act regarding the burden of proof observing that it would be difficult for the State to give an exact date of entry of a foreign national who had surreptitiously crossed the Indian national border and that the court cannot be remain a quiet spectator to the continuing influx of illegal migrants. A Bench of 3 Judges did not hesitate to observe that the IMDT Act which had been constituted for the detection and deportation of illegal migrants having entered into India on or after 25th March, 1971 had designedly failed in its purpose.