In Part 1 of this blog, I argued that Assam’s Standard Operating Procedure (SOP) imposes arbitrary procedural requirements and stringent timelines that impede suspected foreigners’ access to relief before constitutional courts, making citizenship determination a mere administrative exercise, thereby violating  principles of natural justice. In this Part, I shall examine the legal justification behind the resurfacing of the Immigrants (Expulsion from Assam) Act 1950 (‘Act’).

Chief Minister Himanta Biswa has interpreted the Supreme Court (‘SC’) judgment in Re-Section 6A as having allowed application of the Immigrants (Expulsion from Assam) Act 1950 (‘Act’) for facilitating pushback of illegal immigrants. The archaic Act’s use was suspended following the Liaqat-Nehru Pact and subsequently fell into disuse, with the legislative vacuum being filled by subsequent laws. Hence, revival of the Act raises the question of whether it should be brought into force after decades of disuse.

Under Section 2, the Act allows the Central Government to formulate an opinion directing the removal of any person ordinarily residing outside India whose stay is detrimental to the public interest. Section 3 allows the delegation of such function to any officer subordinate to the Central Government. However, the judgment in Re Section 6A, which upheld the validity of section 6A providing for special provisions for citizenship determination for Assam, did not authorise bypassing the judicial procedure of adjudication by Foreigners Tribunals (‘FT’). The majority, writing through Justice Kant, held that both the Immigrants (Expulsion from Assam) Act and the Foreigners Act 1946 “seek to regulate the residence and departure of foreigners in India. To that extent, there is no conflict as both of them supplement and complement each other within the framework of Section 6A” [376] and “the provisions of the Immigrants (Expulsion from Assam) Act, 1950 shall also be read into Section 6A and shall be effectively employed for the purpose of identification of illegal immigrants”. [391] (emphasis added)

However, the state has relied on a stray sentence of the judgment, namely, to read provisions of the Act into section 6A, to provide legitimacy for an arbitrary expulsion regime.  This is merely a fig leaf to hide the effective bypassing of the statutory procedures established in post-1950 legislation. This approach also does violence to the language of the carefully crafted section 6 (A) (1) (b) of the Citizenship Act 1955, which expressly links “detected to be a foreigner” to the Foreigners Act 1946 and the Foreigners’ (Tribunals) Order 1964. The Tribunal Mechanism is rendered redundant through SOP’s alternate mechanism, violating the principle that courts should strive to give meaning to a provision rather than render it void.

The statute, even though historically embedded, is always speaking. The Supreme Court in Zee Telefilms Ltd v Union of India, has referred to  Francis Bennion’s Statutory Interpretation to define ‘updating construction’ as the presumption that parliament intends courts to continuously update an ongoing Act’s wording to reflect changes since its enactment. Applied here, Justice Kant’s use of ‘identification’ should be read as preliminary identification by District Collectors (‘DC’) under section 3 of the Act for further reference to the Foreigners’ Tribunal, which can subsequently verify status. This distinction between referential and adjudicatory authority is clear in State of Assam v Moslem Mandal, wherein the court held that the state, before making reference to the FT, must verify the basis of DC’s suspicion. Mere non-reply to notice served on a suspected foreigner would not lead the tribunal to conclude that that person is a foreigner.

Moreover, in Dhoom Singh v Prakash Chandra Sethi, the SC held that there are two consequences when applying ‘updating construction’. First, the legislature’s intent may not be treated as vain, and second, a statute may not be extended to meet a case for which provisions had undoubtedly not been made. In the present case, the legislature’s intent has been to introduce a judicial element in the eviction process. This is visible from the Assam Government’s “White Paper on Foreigners Issue”, which notes how the Central Government introduced the judicial element following the diplomatic opposition to the original procedure, which effectively led to the deportation of nearly 180,000 alleged infiltrators. As a result, specialised FTs were established reflecting a statutory shift in interpreting the word ‘opinion’ in paragraph 2 (1) of the order, from earlier ‘opinion’ amounting to administrative discretion by Border Security Force, to subsequent opinion rendered by FT, thereby installing a 3-step procedure of Identification, Verification and Deportation. In process, identification involves first, suspicion formation by the Inquiring Authority, and second, prima facie verification by the Referral Authority. Where the suspicion persists, reference is made to the FT for seeking an ‘opinion’. The proposed SOP truncates this intended 3-step procedure of identification, verification, and expulsion to a two-step procedure of identification and expulsion by conflating identification and verification.

In conclusion, there is no denying the fact that there has been illegal immigration to Assam. However, the proposed SOP risks arbitrary expulsion and statelessness, which would not only violate the principle of natural justice, but also is in direct conflict with India’s international law obligations. Further, such a push for administrative efficiency runs counter to the SC’s jurisprudence on maintaining due process safeguards concerning human rights.