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2. The case set up in the writ petition is that the petitioner is a citizen of India and is ordinarily resident in the State of Assam. He is a former President of the All Assam Students Union, which is the largest non-political students organization in the State which was responsible for leading the students movement in Assam in the late 1970s and early 1980s. He is also a former Chairman of the North East Students' Organisation, which is an umbrella organization of students' association from Assam, Meghalaya, Manipur, Nagaland, Tripura and Arunachal Pradesh and has been actively involved in issues concerning the rights of the people of Assam including the question of illegal migrants settled in the said State. The issues raised in the writ petition concern all residents in the State of Assam whose rights as citizens of India have been materially and gravely prejudiced by the operation of the Illegal Migrants (Determination by Tribunals) Act, 1983 (hereinafter referred to as "the IMDT Act"). The principal grievance of the petitioner is that the IMDT Act is wholly arbitrary, unreasonable and discriminates against a class of citizens of India, making it impossible for citizens who are residents in Assam to secure the detection and deportation of foreigners from Indian soil. The Foreigners Act, 1946, applies to all the foreigners throughout India, but the IMDT Act which was enacted subsequently with the professed aim of making detection and deportation of the illegal migrants residing in Assam easier has completely failed to meet even the standards prescribed in the Foreigners Act. That apart, even those provisions of the IMDT Act which afford some measure of protection to some genuine Indian citizens against illegal migrants are not being properly enforced due to extraneous political considerations in derogation of the rights of Indian citizens living in Assam. The result of the IMDT Act has been that a number of non-Indians, who surreptitiously entered into Assam after March 25, 1971 without possession of valid passport, travel documents or other lawful authority to do so, continue to reside in Assam. Their presence has changed the whole character, cultural and ethnic composition of the area and the IMDT Act creates a situation whereunder it has become virtually impossible to challenge the presence of a foreigner and to secure his detection, deportation or even deletion of his name from the electoral list as they get protection on account of the provisions of the Act. According to the census figures, which have been given in the writ petition, the rate of growth of the population in Assam is far more than rest of India which shows that large number of foreigners have migrated to different areas of Assam and have settled there. It is further averred that in view of the problem of illegal migration of foreigners into Assam and their continued presence therein, a State- wise protest movement of students was organized which continued for a long period. As a result of the students' movement and ensuing negotiations, a memorandum of settlement dated 15th August, 1985 was entered into between All Assam Students' Union and the Union of India and the State of Assam, which is commonly known as "Assam Accord". The terms of the Accord specifically provided that steps would be taken to detect and deport illegal migrants from Assam and it also contained a clause that "the Government will give due consideration to certain difficulties expressed by AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983." The Accord further provided that foreigners who have entered into India after 25th March, 1971 will continue to be detected, their names deleted from the electoral rolls and they will be deported from India. In pursuance of this provision, the Citizenship Act, 1955 was amended by Act No.65 of 1985 and Section 6A was inserted with the heading "Special Provisions as to Citizenship of Persons covered by the Assam Accord." It provides that the term "detected to be a foreigner" shall mean so detected under the Foreigners Act and the Foreigners (Tribunals) Order, 1964 framed thereunder. Under the said provision a person of Indian origin as defined under Section 6-A(3) who entered into Assam prior to 1st January, 1966 and has been resident in Assam since then is deemed to be a citizen of India. However, if such a person entered into Assam between 1st January, 1966 and before 25th March, 1971 and has been detected to be a foreigner under the Foreigners Act then he is not entitled to be included in the electoral list for a period of 10 years from the date of detection. This amendment of the Citizenship Act makes it clear that the question of determination or detection of a foreigner is to be governed by the provisions of the existing Central legislation, viz. the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964.

In paragraph 9 of the counter affidavit, the major impediment in implementation of the IMDT Act have been pointed out in detail and it is also averred that the Act is discriminatory as it has been made applicable only to the State of Assam and not to other States like West Bengal, Tripura and Meghalaya, etc. which are facing similar problem of illegal migrants. Copies of several communications sent to the Government of India by the State of Assam requesting for repeal of the IMDT Act and also seeking appropriate amendment to the Citizenship Act, 1955, in order to declare the children of the illegal migrants entering into India after 1971 as foreigners, have also been filed. The difficulties in the implementation of the Act and the Rules have been pointed out which we will advert to later on. It is further averred that despite repeated advertisements and serious efforts, the State Government has not been able to get qualified persons to fill in the vacant posts in the Tribunals. Figures as on 31st March, 2000, of total number of inquiries initiated, total number of persons declared as illegal migrants and the number of persons physically expelled have been given. It is specifically pleaded that the IMDT Act is an ineffective piece of legislation and it is standing in the way of detection and deletion of post 1971 foreigners in Assam and, therefore, the same should be repealed.

9. The petitioner has also filed a reply to the additional affidavit filed on behalf of the State of Assam, where besides reiterating his earlier pleas, it is averred that the Indian National Congress representatives from North East have themselves alluded to the problem of illegal migration in the past. Reference is made to a report of the General Secretaries to the Seventh General Conference of the North-Eastern Congress (I) Co-Ordination Committee dated 3rd July, 1992 wherein it was recorded as under :-

The Preamble to the aforesaid Act says: -

"An Act to provide for the expulsion of certain immigrants from Assam."

Section 2 of this Act lays down that 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 interest of the general public of India or of any section thereof or of any Scheduled Tribe in Assam, the Central Government may by order direct such person or class of persons to remove himself or themselves from India or Assam and give such further direction in regard to his or their removal from India. Proviso of this Section says that it will not 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 his place of residence in such area and who has been subsequently residing in Assam. Section 3 confers power on Central Government to delegate the powers and duties conferred upon it by Section 2 to any officers subordinate to the Central Government. It may be noted that the reference to the word "East Bangal" in the Statement of Objects and Reasons of the aforesaid Act, which came into force on 1st March, 1950, meant East Pakistan, which is the present Bangladesh. Realising the serious law and order problem created by migration from East Pakistan and the serious situation arising therefrom the said Act was enacted and conferred very wide powers upon the Central Government to direct removal of any person outside India. However, on account of Section 4 of the IMDT Act the Immigrants (Expulsion from Assam) Act, 1950 has been superseded and the provisions of the said Act have ceased to apply to the State of Assam. Thus by enacting the IMDT Act the Parliament has divested the Central Government of the power to remove migrants from Bangladesh, whose presence was creating serious law and order problem, which fact had been realized by the Central Government as early as in 1950. The IMDT Act instead of maintaining peace has only revived internal disturbance.