1

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No. 562 of 2012
(Under Article 32 of the Constitution of India)
IN THE MATTER OF:
Assam Sanmilita Mahasangha & Ors. Etc.

Petitioners

Versus
Union of India & Ors.

Respondents

SUPPLEMENTARY REPORT IN TERMS OF ORDER

DATED 14.07.2015 BY THIS HONBLE COURT
MOST RESPECTFULLY SHEWETH:
Pursuant to the order dated 14.07.2015, report has been filed
before this Honble Court on 05.10.2015, which report was
taken up for consideration by this Honble Court on
06.10.2015.

After the filing of the report, response was

received from the Government of Assam on the issues raised in

the said report on 14.10.2015 by e-mail, attaching a response
dated 05.10.2015 of the Commissioner and Secretary, Home
and

Political

Department,

Government

of

Assam.

Furthermore, representations have been received from some

lawyers from the Guwahati High Court as well as other
organizations certain issues, requesting that they be placed
before this Honble Court. Furthermore, judgements of the
Honble Guwahati High Court rendered in the recent past
throw light on the various nexuses prevalent within

Government in providing fake certifications to foreigners,

not tackled by the Government, also how a declared
foreigner deported to Bangladesh, returns to India, files a
Writ Petition in the High Court to which Government does
not file a response

for 6 years. Various responses /

representations and judgments are as follows:

A. Response dated 05.10.2015 from the Government of Assam,
received on 14.10.2015. Eleven issues arose out of the first
two reports dated 05.06.2015 and 20.06.2015 were outlined in
communication dated 11.08.2015 addressed to both the Central
and State Governments by letter dated 11.08.2015. The eleven
issues are already set out in pages 2 and 3 of the report dated
05.10.2015 and the letter dated 11.08.2015 is available at page
62 of the said report. Copy of the response dated 05.10.2015
from the Government of Assam is enclosed herewith and
marked as ANNEXURE-1. The response of the Government of
Assam on the various heads is set out hereinbelow, in respect of
each recommendation.
i

Issue -

Demarcating/ identifying a particular stretch

from the international boundary into a sterile zone in the

riverine area, provision of identity cards to villagers in
this area.

Response - The decision on demarcating/ identifying a

particular stretch from international boundary with
Bangladesh into a sterile zone in the reverine areas is a
matter under the Union Government. The villagers in the
border areas are already having photo identity cards
issued by the Election Commission of India. However,
more dependable identity cards could be issued after the
ongoing updation of National Register of Citizens is
completed with the intiative of the Government of India.
ii

Issue - Shifting of cattle haats 20 kms. away from

international border.
Response - Regarding shifting of cattle haats 20 KMs
from the international border, the Deputy Commissioner,
Dhubri has already taken steps to shift these haats to 8
KMs from the international border and the matter has
been taken up now with the concerned local bodies to
shift these haats to 20 KMs from the international border.
In Karimganj district, there are no such big cattle haats
within 20 KMs from the international border.

iii

Issue - Addressing vulnerable patches in areas where

international boundary runs through middle of the river /
or takes a zigzag route.

Response- Addressing the vulnerable patches in areas

where international boundary runs through middle of the
river/ or takes a zigzag route is a subject matter of the
Union Government.
iv

Issue - Relocating villagers across fenced areas and

closing the gates.
Response- The viability of relocating the villagers across
the border will be explored in discussion with the
Government of India. The Deputy Commissioners of the
bordering

districts

are

undertaking

preliminary

assessment on people living across the international

border fencing.
v

Issue - Plugging vulnerable patches of bridge and culvert

areas.
Response-Plugging vulnerable patches of bridge and
culvert areas is being taken up by the PWD, Assam and
will be completed within this working season.

vi

Issue - Providing regular electricity connection to flood

lights and ensuring uninterrupted power supply. Giving
priority to border roads and flood lights.
Response- For providing regular electricity connection to
the floodlights and ensuring uninterrupted power supply,

the Assam Power Distribution Company Limited has

been asked to expedite the ongoing works and they have
submitted a report with timeline to complete the project.
Copies of report are attached.
vii

Issue - Increasing manpower strength of effective ground

personnel.
Response- Increasing manpower strength of effective
ground personnel is a subject matter of the Union
Government.

viii

Issue - Implication of non lethal policy.

Response- Implication of non lethal policy is a matter
under Union Government.

ix

Issue - Setting up of an independent inquiry /

investigation into the manner in which illegal migrants
entrench themselves in the State, including unearthing of
nexuses in this connection.
Response-

Regarding setting

up

of

an inquiry/

investigation on illegal migrants: No comment.

x

Issue - Examining electoral rolls for un-natural

increase and growth in population, including entry of

new house-holds / individuals into the electoral roll

suddenly.
Response-Regarding examining the electoral rolls for
unnatural

increase

and

growth

in

population,

including entry of new households/ individuals into

the electoral roll suddenly, the matter is being taken
up with the Election Commission of India.
xi

Issue - Necessity for independent inquiry and

investigation into the manner in which foreigners
illegally acquire citizenship and citizens rights is
important as in the ongoing NRC process it will also
enable and assist in the verification of the documents
and citizenship of a large number of illegal migrants
who are applying for citizenship.
Response- Regarding setting up of any independent
inquiry and investigation into the manner in which
foreigners illegally acquire citizenship is a matter
under Union Government of India.

OBSERVATIONS:
(a) The stand of the Government of Assam, overall is that all
the issues are the primary concern of the Central
Government barring the provision of regular electricity

connection, it is with this caveat that responses to queries

are furnished, by and large the responses are in line with
what was conveyed during discussion with District
Administrations of Dhubri, Karimganj and Silchar and it
is the new and additional responses which are being dealt
with in the subsequent paragraphs.
(b) As regards the recommendation regarding relocation of
all villages who either live or have land across the
fencing areas towards the international boundary and
thereby close the large number of gates on the
international fencing, the answer is very carefully
worded.

The response says that the viability of

relocating the villagers across the border will be

explored in discussion with the Government of India,
though it is thereafter said that the concerned Deputy
Commissioners are undertaking preliminary assessment
on people living across the international border
fencing.

The State Government therefore does not

appear to have taken any decision on this issue.

(b) As far as provision of regular electricity connection is
concerned timelines have been provided for completion
of work in both the sectors, which reports have already
been

furnished

05.10.2015.

But

alongwith

the

earlier

nothing

has

been

report
said

of

about

uninterrupted power supply, infrequent power supply in

these areas is the norm, rather than the exception and for
border floodlights, uninterrupted power supply is a
necessity.
(c) Interestingly, on one of the fundamental issues
regarding Issue No. (ix) for setting up of an
independent inquiry / investigation into the manner in
which illegal migrants entrench themselves in the
State, including unearthing of nexuses in this
connection the response is a simple No comment.
Considering that factual data in terms of overall
demographic change furnished in the representation
enclosed with the earlier report shows proliferation
of a large number of non- Indians to borrow a
description

from

the

respondents

own

official

communications regarding encroachers, this response

is surprising.
(d) As regards issue No. (x) relating to Examining
electoral rolls for un-natural increase and growth in
population, including entry of new house-holds /
individuals into the electoral roll suddenly, the
response only says that the matter is being taken up
with the Election Commission of India.
The State Government has not disclosed as to the manner in
which the matter has been taken up with the Election
Commission regarding un-natural increase in voters. Any

sincere attempt in this regard would require taking the pre

24.03.1971 electoral rolls as the basis for any polling station
and thereafter examination on a year to year basis as to the
additions in terms of new households or sudden inclusion of
someone far beyond the qualifying age to be a voter as a
member of the household.

It is important to note that

increasing voters in urban polling centres is attributable to

rural urban migrant, a regular phenomenon in this country.
But increase in voter by addition of new household / or
suspicious new family members of the same household in
rural areas will be a ground for investigation as to the
antecedent of the nationality of such new voters.
The State Government therefore needs to be more explicit as to
the manner it is taking up the issue with the Election
Commission.
In the earlier report of 05.10.2015 representation made by Shri
Indrajit Barua has enclosed study carried out in respect of some
polling stations in Boko Legislative Assembly Constituency for
the period 1971 to 1997, where a periodic analysis of electoral
rolls for a polling station have shown increase in the range of
80% to 2135% in the number of new entrants into the electoral
rolls. Considering that entry of a new household entered in
electoral rolls after 24.03.1971 or a new voter far beyond the
qualifying age into an existing household will raise doubts

10

about their nationality, focus should therefore be laid on such

new entrants while investigating the nationality.

To take an illustration, if a household is shown as having

entered into the rolls for the first time in 1985 and it is not
there in 1980 the previous electoral roll, then its absence
itself raises doubt about the nationality of the members of
this household. Furthermore, if an elderly member of the
household suddenly makes an appearance in the electoral
roll at the age of 30 and above, this itself will raise doubts
about the nationality.
(e) As

regards Issue

No. (xi)

regarding necessity for

independent inquiry and investigation into the manner in

which foreigners illegally acquire citizenship and citizens
rights is important as in the ongoing NRC process it will
also enable and assist in the verification of the documents
and citizenship of a large number of illegal migrants who
are applying for citizenship. In response the Government of
Assam is very categorical in saying that the manner in
which foreigners illegally acquire citizenship is a matter
under Union Government of India.
It is, therefore, now for the Central Government to respond
as to whether it has taken any decision regarding setting up
of an independent inquiry and investigation into the
manner in which foreigners illegally acquire citizenship.

11

I have said in the earlier report that this investigation/

inquiry is necessary because it will provide a valuable guide
towards the verification of citizenship under ongoing
updating of the National Register of Citizens.
Considering the fact that the entire population of Assam has
by and large applied for inclusion in the National Register
of Citizens, which will include a large number of foreign
nationals, the result of this exercise will prove valuable
guide for shifting citizens from foreigners.
B. Representation from two practising Advocates of Guwahati
High Court
Mrinmoy Khataniar and Rinku Hazarika, two practicing
advocates of the Guwahati High Court have made a
representation dated 28.10.2015 to be placed before this
Honble Court in respect of a direction given by this Honble
Court in Sarbananda Sonowal vs. Union of India (2005) 5
SCC 665, which has not been complied with. There are two
aspects highlighted in the representation, firstly, the direction by
this Honble Court relating to scrutiny of complaints regarding
complaints under the Foreigners Act and rejection of such
complaints without reference to adjudication was illegal and the
complaints rejected by the Screening Committee, were directed
to be proceeded afresh. According to the representation this
direction has not been complied with and around 2,82,000

12

persons against whom complaints have been made, but rejected

by the Screening Committee have been let off. Secondly, there
is no mechanism in place by the Government of Assam through
which orders rejecting complaints by the Foreigners Tribunal
can be scrutinized for the purposes of challenging the same. If a
complaint is dismissed, there is no mechanism or process by
which the State Government challenges the order of the
Foreigners Tribunal.
Firstly, under the IMDT Act regime, a Screening Committee
had been set up to screen complaints made against suspected
foreigners on which wide power of rejecting complaints was
vested, against which no appeal lies, referred to in paragraph 47
of the said judgment, extracted in the representation.

In

paragraph 5 of the judgment reference has been made to the

counter affidavit of the Central Government from where it
could be noticed that out of 3,62,592 complaints

inquiries

referred to the Screening Committee, only 76,228 were referred

to the Tribunal constituted under the IMDT Act, a large number
of inquiries were rejected by the Screening Committee in
excess of 2.5 lakh i.e. 2,86,364 inquiries

rejected by the

Screening Committee.

This Honble Court in paragraph 83 held the very constitution

of the Screening Committee to be illegal with the categorical

13

finding that the Screening Committee had no authority or

jurisdiction to reject any proceeding against any alleged illegal
migrant, the order of rejection passed by such authorities are
declared to be void and non est in the eye of law. It will be
open to the authorities of the Central Government or the State
Government to initiate fresh proceedings against all such
persons whose cases were not referred to the Tribunal
constituted under The (Illegal Migrant

Determination by

Tribunal) Act, 1983 by the competent authority whether on

account of the recommendation of the Screening Committee or
any other reason whatsoever.
This has been followed up by a direction at paragraph 84 in the
following terms:
(4) it will be open to the authorities to initiate fresh
proceedings under the Foreigners Act` against all such
persons whose cases were not referred to the Tribunals
by the competent authority whether on account of the
recommendation of the Screening Committee or any
other reason whatsoever.
These complaints relating to 2,86,364 enquiries have therefore
not been proceeded and the Assam Government should
therefore respond to this aspect.
The representation has highlighted yet another important aspect
regarding the functioning of the present Tribunal namely there
is no mechanism in place by the State Government to decide

14

whether to challenge against any order of rejection of the

complaint.

The relevant extract from the representation is

extracted herein below:

Initially 36 Tribunals under the Foreigners (Tribunals)

Order, 1964 framed under the Foreigners Act, 1946 were
functioning. Considering the enormity of the problem the
number of Tribunals were found to be wholly inadequate.
Following the intervention of the Honble Supreme
Court, the number of such Tribunals have been increased
to 100. Now 100 Tribunals are functioning. Against
orders of the Tribunal holding the proceedee to be a
foreigner, the declared foreigner approaches the High
Court under Articles 226/ 227 of the Constitution.
However, against decisions of the Tribunals answering
the reference against the State by holding the proceedee
not to be a foreigner, there is no procedure in place at the
Government level to scrutinize such decisions and to
challenge such decisions if considered necessary before
the High Court.

To the best of our knowledge and

information there is no such mechanism put in place by

the State Government. We have reasons to believe that in
many places particularly in the border districts
references are mostly answered against the State by
holding the proceedee not to be foreigner. Since these
orders are not put to challenge before any higher forum,
such orders attain finality. We are of the firm opinion
that all such decisions of the Tribunals were the
references are answered against the State should be
scrutinized by having a formal procedure in place and

15

such of those decisions which are found to be

questionable should be challenged in the High Court.
Copy of the representation dated 28.10.2015 made by the
two practicing Advocates of Guwahati High Court is
enclosed herewith and marked as ANNEXURE - 2.
OBSERVATIONS
(a) The above two aspects, firstly, the fact that the direction in
Sarbananda Sonowal to initiate fresh proceedings in
respect of inquiries rejected by the Screening Committee
under the IMDT Act which were required to be proceeded
afresh and which does not appear to have been done, calls
for a response from the State Government.
(b) Secondly, the necessity of reviewing the decision of
Foreigners Tribunal by an institution alleged mechanism
also needs to be put into place.
C. Representation from the Jatiya Nagrik Manch dated
28.10.2015 This organisation is based in Mangaldoi District
headquarters of Darrang District who have made a representation
against the action of the Deputy Commissioner of Darrang
District in respect of decision taken in 04.10.2013 by the said
Officer. According to the representation, by communication of
04.10.2013 the Deputy Commissioner of Darrang District had
written to the Deputy Commissioner of the neighbouring district
Morigaon saying that 260 erosion effected families of Mangaldoi

16

Revenue Circle are residing in Morigaon and he wanted to settle

them on vacant Government land in his own district and sought
the assistance of the Officer of the neighbouring district in settling
such families to avoid resistance by the locals.
According to the representation there was no proof that these
families belong to the District and the said Officer has participated
in the network to settle foreign nationals. Photographs have
also been enclosed alongwith the representation.
Copy of the representation dated 28.10.2015 is enclosed herewith
and marked as ANNEXURE-3.
OBSERVATION
This representation is based on a letter of the Deputy
Commissioner, wherein 260 families are settled in a particular
area i.e. in Hilaikhunda under Mangaldai Revenue Circle, Darrang
District which is government land saying that such persons are
erosion affected and also their settlement is likely to create
resistance from locals. The antecedents of these families need to
be verified in terms of their nationality but the fact is that an
entirely new set of people are introduced by the government
amongst indigenous people and the very fact that security is
required to forcibly settle them, shows and demonstrates that there
is a likelihood of local resistance, as also displacing indigenous
communities from their habitat.

17

D. Judgments of the Honble Guwahati High Court - Fake

Certificates and nexuses
There are quite a few judgments of the Honble Guwahati High
Court in respect of fake certificates procured by foreigners and
official nexuses in this regard, a few of which are given below:

(1) Judgment dated 05.10.2015 passed in W.P. (C) No. 5094

of 2012 titled Md. Fazar Ali Vs. The Union of India &
Ors. - In this matter the issue was regarding the authenticity
of Birth Certificate dated 11.01.2011, certifying the alleged
foreigner to have been born on 08.01.1965 in Morigaon
District (Para 5 & 6). Upon enquiry being directed, the
enquiry disclosed that no such certificate was issued as per
the instructions of the Deputy Commissioner, which is the
prescribed procedure (Para 7,8 & 9).

Even though the

Deputy Commissioners recommendation was not obtained

as is the procedure prescribed, nevertheless it was issued by
the Registrar, Births & Deaths. However, the original
documents were strangely misplaced when called for. The
Honble Court further observed that it was only one in
several cases of fake and forged documents as enquiry had
been directed earlier in respect of Dhubri and Nagaon
District in other matters. The relevant extract at Para 9 & 10
reads as follows:-

18

9once it is established that there was no

recommendation from the Office of the Deputy
Commissioner for issuance of the birth certificate, such a
certificate could not have been issued by the Laharighat
PHC. Strangely enough, the Registrar of Birth & Death,
Laharighat PHC has stated that the documents relating
to issuance of such certificate has been misplaced during
the shifting of the Office. According to his report
allegedly made to the Officer-in-Charge, Laharighat
Police Station, the documents missing are births and
deaths registrars of 2011, 2012, 2013 and 2014;
counterfoils of certificates; order of the Deputy
Commissioner for issuing such certificates; application
forms; reports etc. A simple report was shown furnish on
26th August, 2014 to the Laharighat Police Station
intimating about misplacing the aforesaid records.
10. It is not the case of the Laharighat PHC that the
documents have been stolen. The report of the
Superintendent of Police (B), Morigaon dated 5th
October, 2015 contains the note dated 4th October, 2015
of the Sub-Inspector (B), Laharighat Police Station. IN
his report, he has expressed his surprise as to why only
the aforesaid documents have been misplaced and not
any other documents including costly items like
computer; hospital material etc. This would enquire a
thorough enquiry of the Superintendent of Police (B),
Morigaon to unearth the racket of issuing the fake birth
and death certificates to help the illegal migrants. It will
not be out of place to mention here that earlier also the
Court unearthed a racket of issuance of fake certificates
by Dharamtul SHC. Another racket of issuance of forged
birth certificates was also unearthed in respect of

19

Gazarikandi PHC of Dhubri district. In this connection,

the orders passed in WP (C) No.2306 / 2014 and WP (C)
No.3660/205 may be referred to.
(2) Order dated 25.08.2015 passed in W.P. (C) No. 3660/
2015 - In this matter the Honble High Court was again
seized of the issue relating to fake birth and death
certificates and expressed anguish at the fact that not only
was the Petitioner who is a foreigner not apprehended but
even the concerned government servant was let off lightly
and at the apathy of the administration. The relevant extract
from the said order reads as follows:
As recorded in the orders passed in this proceeding,
more particularly, in the order dated 29.07.2015, the
petitioner has taken recourse to falsehood and forgery in
placing reliance on the Annexure-5 Birth Certificate
dated 30.01.2012. In that view of the matter, the
respondents were directed to apprehend the petitioner. It
was also directed that the authorities, namely, the
Director General of Police Assam and the Commissioner
and Secretary, Home and Political Department, Govt. of
Assam should apprise the Court about their action plan
in such a serious matter.
As indicated in the said order, the accused persons
including

Shri

Anowar

Hussain,

UDA,

SDCH,

Hatsingimari, son of Late Amir Hamja Mandal. As per

the written instructions furnished, the Joint Director of
Health Services, only ordered for shifting of the table of
Anowar Hussain.
In fact, both the authorities were directed to apprise the
Court about their action plan in the matter including the

20

action taken in respect of the accused persons mentioned

in the order dated 29.07.2015. However, there is no
response from the said two authorities except the letter
dated 11.08.2015 addressed to Mr. G.J. Ghosh, State
Counsel

by

the

ADGP

(A),

Assam,

expressing

helplessness in the matter. There is also no indication in

the letter as to how the administration has proposed to
arrest the menace of issuance of fake birth and death
certificates.
It may not be out of place to mention here that today, in
the case of Sirajul Hoque vs. State of Assam and others
(WP (C) No.2306/ 2014, the Deputy Commissioner,
Morigaon has furnished report regarding submission of
forged letter dated 23.11.2013 showing to be from the
office of the Additional Deputy Commissioner, Morigaon.
It appears that the said respondents are not at all
interested to apprehend the culprits engaged in such a
racket.
(3) In the Judgment and Order dated 18.09.2015 passed in
W.P. (C) No.2306 of 2014 titled Md. Sirajul Hoque @
Sirajul Islam & Ors. Vs. The Union of India & Ors. - In
this matter the Petitioners sought setting aside of an ex-parte
order by furnishing a copy of the death certificate of the
mother as well as a medical certificate of some relative, they
being grounds for non appearance. Initially, when the Court
doubted the genuineness of these two certificates, written
instructions furnished to the government counsel asserting
the genuineness of these documents. On a direction for
further enquiry by the Honble Court, it was revealed that

21

both these documents were forged. The relevant extract from

the said order reads as follows:
12. In the present proceeding before this Court, a doubt
arose in respect of issuance of Annexure-24 Death
Certificate dated 08/12/2013 and so also the Annexure25 Medical Certificate. The learned Standing Counsel,
Health Department was directed to apprise the Court as
to the veracity or otherwise of the said two certificates.
The matter was further taken up on 13/08/2015 and on
the basis of the written instructions furnished to the
learned Standing Counsel, Health, it was submitted that
the Annexure-24 and Annexure-25 certificates were
genuine. Along with the written instruction dated
10/08/2015, the purported recommendation of the
Additional Deputy Commissioner, Morigaon vide order
dated 25/11/2013, for issuance of the Anenxure-24 Death
Certificate was also enclosed.
13. When a doubt arose in respect of the said order dated
25/11/2013

issued

by

the

Additional

Deputy

Commissioner, Morigaon, further direction was issued to

obtain instruction from the Deputy Commissioner,
Morigaon. The matter was again taken up on 25/08/2013
and Mr. Noor Mohammad, learned State Counsel
produced the letter dated 21/08/2015 addressed to him
by the Deputy Commissioner certifying that the
purported letter of the Additional Deputy Commissioner
dated 25/11/2013 was never issued from the office of
the Deputy Commissioner. Situated thus, Dr. Niranjan
Konwar, Medical and Health Officer-I, in-charge,
Dharamtul SHC was directed to appear in person along
with entire records pertaining to Annexure-24 Death
Certificate dated 08/12/2013 including the original copy

22

of the order dated 25/11/2013. He appeared on

08/09/2015. Prior to that the Deputy Commissioner was
directed to cause an enquiry vide order dated
25/08/2015.
14.

Today, Mr. Noor Mohammad, learned State

Counsel has produced the copy of the enquiry report

dated 14/09/2015 forwarded to him by the Deputy
Commissioner,

Morigaon

vide

his

letter

dated

16/09/2015. The enquiry report has revealed that the

aforesaid purported order dated 15/11/2013 of the
Additional Deputy Commissioner, Morigaon is a fake
one. Although, Mr. A. Matin, learned counsel for the
petitioners has submitted that the petitioners are not
responsible towards issuance of the fake order of the
Additional Deputy Commissioner, but as recorded in the
earlier order dated 08/09/2015, they being beneficiary of
the Annexure-24 Death Certificate which was issued on
the basis of a fake order, they cannot shirk-off their
responsibility by simply saying that the task of obtaining
the said certificate was entrusted to a third party.
(4) Judgment dated 10.08.2015 Passed in W.P. (C) No. 5048
of 2009 - This matter relates to a Writ Petition filed by the
Petitioner who was declared as a foreigner in 2007, deported
to Bangladesh and thereafter returned again to file a Writ
Petition in November 2009, when affidavits were directed to
be filed by the Chief Secretary and the Home Secretary as to
the manner in which a deported foreigner could return and
file a Writ Petition and the matter was not listed for 6 years
which has been noted by the Honble Court in its order dated

23

10.08.2015. The relevant extract of the said order reads as

follows:
When the matter was last taken up on 20 th November,
2009, the following order was passed:It appears from the averments made in the writ petition
that in view of the judgment and order dated 15-11-2007
passed by the learned Foreigners' Tribunal in FT Case
No.9/2007, the petitioner was deported along with his
family to Bangladesh. The petitioner, however, claims to
have returned to India and filed the present writ petition.
If such allegations are correct, it makes a serious
reflection on the Union of India as well as the State of
Assam as the border is not at all protected and the
persons are allowed to enter into India without even a
valid permit and even though the person has been
declared as foreigner and was deported to Bangladesh.
In view of the aforesaid position, the Chief Secretary to
the Government of Assam and the Home Secretary to the
Government of India are directed to file affidavits in this
matter, for which 2 (two) weeks time is granted.
List the case for motion hearing on 4th December, 2009.
A copy of this order be furnished to the learned Assistant
Solicitor General of India, the learned Sr. Government
Advocate, Assam and the learned Central Government
Counsel.
(5) Judgment dated 27.08.2015 Passed in W.P. (C) No. 2979
of 2011- This matter relates to yet another aspect of the
functioning of Foreigners Tribunal, where ex-parte order
was challenged on the ground that notice issued to the
Petitioner before the High Court was on the allegation that
he was a foreigner in the 1966 to 1971 stream, which
category in terms of the Assam accord are required to
register themselves with the authorities and granted

24

citizenship subsequently. It was noticed by the Honble

Court that whereas the reference made to the Tribunal was
suspecting him to be a foreigner of post 25 March 1971,
however, the notice issued by the Foreigners Tribunal was
on the wrong format, which had been the experience of the
Honble Court earlier. The relevant extract of the said order
reads as under:Before parting with the case record, it is placed on
record that it has been the experience of this Court in
some cases that the Tribunals unmindful of the fact that
the proceedee is suspected to be a foreigner of post 25 th
March, 1971 stream, issue notice in the prescribed
format indicating that the proceedee is suspected to be a
foreigner within the stream of 1st January, 1966 to 25th
March, 1971. In absence of the prescribed format for the
suspected foreigners of post 25th March, 1971, the
Tribunal while using the format pertaining to the
foreigners of 1st January, 1966 to 25th March, 1971
should make necessary correction.
Copy of the judgements of the Honble Guwahati High
Court

are

enclosed

herewith

and

marked

as

ANNEXURE-4(Colly)
OBSERVATIONS AND SUGGESTIONS:
1. It is obvious and apparent from the above judgments that
there is a large scale racket in procurement of fake
certificates and which is carried out with the aid and
connivance of government personnel. In fact, most of the
times as recorded in the judgments the forgery could not be
detected immediately and further enquiries were directed. In

25

one case,

W.P. (C) No.2306 of 2014 titled Md. Sirajul

Hoque @ Sirajul Islam & Ors. Vs. The Union of India &
Ors. mentioned at Sr. No.3 above, the official instructions
conveyed to the Government counsel were that the
certificates in question were genuine. It is only upon the
Honble Court persisting and calling for the personal
presence of officers that it was admitted by the Government
that the certificates in question were fake. The Honble
Court has also noted with anguish in order dated 25.08.2015
passed in W.P. (C) No. 3660/ 2015 at Serial No.2 above that
the government officials were not interested in arresting the
culprits and in fact the only action taken in respect of one
such government functionary was to change his desk.
2. This fake certification with the active connivance of
Government personnel has significant implications while
carrying out verification of Applicants while updating
the National Register of Citizens and this aspect
therefore, has to be accounted for while evolving
verification procedures.
E. Representation has been received from Sangrami Satirtha
Sanmilan dated 25.10.2015: In furtherance of their earlier
representation referred to in page 22 of report dated 05.10.2015
and enclosed at pages 135 to 202 of the said report.

This

representation is by way of furnishing additional information in

respect of the land encroached in Sipajhar Revenue Circle of

26

77,420 bighas (26,000 acres) where information has been

furnished regarding list of polling stations in 1985 and list of
polling station in 2014. As stated therein, there were no polling
stations in the encroached area of 26,000 meters in 1985 in the
electoral rolls of that year, whereas there were 11 polling stations
with over 15000 voters in these areas in 2014. Furthermore, a
large number of residents in this area also vote in pre-existing
polling stations. According to the representation 11 polling
stations with further 15,000 voters are available in this land
under encroachment.

A large number of inhabitants in the

encroached area also vote in neighbouring areas. Furthermore,

there is also ancient Shiva temple in this area which is under
encroachment.
Copy of the representation dated 25.10.2015 is enclosed herewith
and marked as ANNEXURE-5.
OBSERVATION
The representation by this organization has been dealt with in
length in the earlier report, they have adduced further proof that
settlement in the encroached area of 77,420 bighas (26000 acres)
is of recent origin as no polling stations on this area are available
in the electoral rolls of 1985, whereas there are eleven such
polling stations in 2014 electoral rolls and the voters around
25,000 are around 16% of the of the total electorate.
SUMMARISED OBSERVATIONS
AND SUGGESTIONS

27

Observations and suggestions have already been made under the

respective response/ representation which are summarised herein
below at one place under the respective heads, for the sake of
convenience.
A. Response of Assam Government received on 14.10.2015.
(a) The stand of the Government of Assam, overall is that all the
issues are the primary concern of the Central Government barring
the provision of regular electricity connection, it is with this caveat
that responses to queries are furnished by and large the responses
are in line with what was conveyed during discussion with District
Administrations of Dhubri, Karimganj and Silchar and it is the new
and additional responses which are being dealt with in the
subsequent paragraphs.
(b) As regards the recommendation regarding relocation of all villages
who either live or have land across the fencing areas towards the
international boundary and thereby close the large number of gates
on the international fencing, the answer is very carefully worded.
The response says that the viability of relocating the villagers
across the border will be explored in discussion with the
Government of India, though it is thereafter said that the
concerned Deputy Commissioners are undertaking preliminary
assessment on people living across the international border
fencing. The State Government therefore does not appear to have
taken any decision on this issue.

28

As far as provision of regular electricity connection is concerned

timelines have been provided for completion of work in both the
sectors, which reports have already been furnished alongwith the
earlier report of 05.10.2015. But nothing has been said about
uninterrupted power supply, infrequent power supply in these areas
is the norm, rather than the exception and for border floodlights,
uninterrupted power supply is a necessity.

(c) Interestingly, on one of the fundamental issues regarding Issue

No. (ix) for setting up of an independent inquiry / investigation
into the manner in which illegal migrants entrench themselves
in the State, including unearthing of nexuses in this connection
the response is a simple No comment.

Considering that

factual data in terms of overall demographic change furnished

in the representation enclosed with the earlier report shows
proliferation of a large number of non- Indians to borrow a
description from the respondents own official communications
regarding encroachers, this response is surprising.
(d) As regards issue No. (x) relating to Examining electoral rolls
for un-natural increase and growth in population, including
entry of new house-holds / individuals into the electoral roll
suddenly, the response only says that the matter is being taken
up with the Election Commission of India.

29

The State Government has not disclosed as to the manner in

which the matter has been taken up with the Election
Commission regarding un-natural increase in voters.

Any

sincere attempt in this regard would require taking the pre

24.03.1971 electoral rolls as the basis for any polling station
and thereafter examination on a year to year basis as to the
additions in terms of new households or sudden inclusion of
someone far beyond the qualifying age to be a voter as a
member of the household.

It is important to note that

increasing voters in urban polling centres is attributable to

rural urban migrant a regular phenomenon in this country.
But increase in voter by addition of new household / or
suspicious new family members of the same household in
rural areas will be a ground for investigation as to the
antecedent of the nationality of such new voters.
The State Government therefore needs to be more explicit as to
the manner it is taking up the issue with the Election
Commission.
In the earlier report of 05.10.2015 representation made by Shri
Indrajit Barua has enclosed study carried out in respect of some
polling stations in Boko Legislative Assembly Constituency for the
period 1971 to 1997, where a periodic analysis of electoral rolls for
a polling station have shown increase in the range of 80% to
2135% in the number of new entrants into the electoral rolls.

30

Considering that entry of a new household entered in electoral rolls

after 24.03.1971 or a new voter far beyond the qualifying age into
an existing household will raise doubts about their nationality,
focus should therefore be laid on such new entrants while
investigating the nationality.
To take an illustration, if a household is shown as having entered
into the rolls for the first time in 1985 and it is not there in 1980
the previous electoral roll, then its absence itself raises doubt
about the nationality of the members of this household.
Furthermore, if an elderly member of the household suddenly
makes an appearance in the electoral roll at the age of 30 and
above, this itself will raise doubts about the nationality.
(e) As regards Issue No. (xi) regarding necessity for independent
inquiry and investigation into the manner in which foreigners
illegally acquire citizenship and citizens rights is important as
in the ongoing NRC process it will also enable and assist in the
verification of the documents and citizenship of a large number
of illegal migrants who are applying for citizenship.

In

response the Government of Assam is very categorical in

saying that the manner in which foreigners illegally acquire
citizenship is a matter under Union Government of India.
It is, therefore, now for the Central Government to respond as to
whether it has taken any decision regarding setting up of an

31

independent inquiry and investigation into the manner in which

foreigners illegally acquire citizenship.
I have said in the earlier report that this investigation/ inquiry is
necessary because it will provide a valuable guide towards the
verification of citizenship under ongoing updating of the National
Register of Citizens.
Considering the fact that the entire population of Assam has by and
large applied for inclusion in the National Register of Citizens,
which will include a large number of foreign nationals, the result
of this exercise will prove valuable guide for shifting citizens from
foreigners.
B. Representation from two practising Advocates of Guwahati
High Court
(a) The above two aspects, firstly, the fact that the direction in
Sarbananda Sonowal to initiate fresh proceedings in respect of
inquiries rejected by the Screening Committee under the IMDT
Act which were required to be proceeded afresh and which does
not appear to have been done calls for a response from the State
Government.
(b) Secondly, the necessity of reviewing the decision of Foreigners
Tribunal by an institution alleged mechanism also needs to be
put into place.
C. Representation
28.10.2015

from

the

Jatiya

Nagrik

Manch

dated

32

This representation is based on a letter of the Deputy

Commissioner, wherein 260 families are settled in a particular
area i.e. in Hilaikhunda under Mangaldai Revenue Circle, Darrang
District which is government land saying that such persons are
erosion affected and also their settlement is likely to create
resistance from locals. The antecedents of these families need to
be verified in terms of their nationality but the fact is that an
entirely new set of people are introduced by the government
amongst indigenous people and the very fact that security is
required to forcibly settle them, shows and demonstrates that there
is a likelihood of local resistance, as also displacing indigenous
communities from their habitat.
D. Judgments of the Honble Guwahati High Court - Fake
Certificates and nexuses
(a) It is obvious and apparent from the above judgments that there
is a large scale racket in procurement of fake certificates and
which is carried out with the aid and connivance of government
personnel. In fact, most of the times as recorded in the
judgments the forgery could not be detected immediately and
further enquiries were directed. In one case, W.P. (C) No.2306
of 2014 titled Md. Sirajul Hoque @ Sirajul Islam & Ors. Vs.
The Union of India & Ors. mentioned at Sr. No.3 above, the
official instructions conveyed to the Government counsel were
that the certificates in question were genuine. It is only upon the
Honble Court persisting and calling for the personal presence

33

of officers that it was admitted by the Government that the

certificates in question were fake. The Honble Court has also
noted with anguish in order dated 25.08.2015 passed in W.P.
(C) No. 3660/ 2015 at Serial No.2 above that the government
officials were not interested in arresting the culprits and in fact
the only action taken in respect of one such government
functionary was to change his desk.
(b) This fake certification with the active connivance of
Government personnel has significant implications while
carrying out verification of Applicants while updating the
National Register of Citizens and this aspect therefore, has to be
accounted for while evolving verification procedures.
E. Representation has been received from Sangrami Satirtha
Sanmilan dated 25.10.2015:
The representation by this organization has been dealt with in
length in the earlier report, they have adduced further proof that
settlement in the encroached area of 77,420 bighas (26000 acres)
is of recent origin as no polling stations on this area are available
in the electoral rolls on 1985, whereas there are eleven such
polling stations in 2014 electoral rolls and the voters around
25,000 are around 16% of the of the total electorate.
CONCLUSION
There is one significant fact which emerges from the fact finding,
undertaken since May 2015 and resulting in the four reports including

34

the present one and which is that there is an established

institutionalised mechanism which enables a Bangladeshi national to
freely come into the country, acquire citizenship rights and more
importantly voting rights, which is where their strength lies. Fact that
it is a porous border (admitted by both the Governments), no
verification of any person being enrolled as a voter, no verification of
any person getting rights over land, rather settling as an encroacher
upon Government land, Forest land and grazing reserves and
subsequently conferred land rights, with procurement of fake
certification being the norm. As noted by the Honble Guwahati High
Court,

even when such fake certification is detected with great

difficulty, no offender who participated in this process is brought to

book. The confidence which a Bangladeshi national has in his or her
ability to establish themselves illegally in India can be understood
from the Guwahati High Court order in Sl. No. 4 of the judgments
cited above, in WP(C) 5048/2009 where a foreign national, declared
so and deported in 2007 to Bangladesh has the confidence to come
and file a Writ Petition before the Guwahati High Court and which
Writ Petition is pending for six years without an affidavit being filed
by the State Government. This demonstrate the confidence of the
Bangladeshi national has in the Indian system to protect his interest.
The report is submitted accordingly.

(Upamanyu Hazarika )
Senior Advocate

35

Supreme Court Commissioner

Date: 04.11.2015

36

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No. 562 of 2012
(Under Article 32 of the Constitution of India)
IN THE MATTER OF:
Assam Sanmilita Mahasangha & Ors. Etc.

Petitioners

Versus
Union of India & Ors.

Respondents

SUPPLEMENTARY REPORT IN TERMS OF ORDER

DATED 14.07.2015 BY THIS HONBLE COURT

PAPER BOOK
(FOR INDEX PLEASE SEE INSIDE)

Submitted by: Upamanyu Hazarika

Senior Advocate, Supreme Court Commissioner

37

INDEX
SL. NO.

PARTICULARS

Supplementary Report in terms of Order

dated 14.07.2015 by this Honble Court

ANNEXURE-1
Copy of the response dated 05.10.2015 from
the Government of Assam received on
14.10.2015 on e-mail.

ANNEXURE-2
Copy of the representation dated 28.10.2015
from two practicing Advocates of the
Guwahati High Court.

ANNEXURE-3
Copy of the representation from the
Jatiya Nagrik Manch dated 28.10.2015

ANNEXURE-4 (Colly)
Copy of the judgments of the Guwahati
High Court

ANNEXURE-5
Copy of the representation received
from Sangrami Satirtha Sanmilan

PAGES