Sarbananda Sonowal v Union of India

Facts

• The Illegal Migrants (Determination by Tribunals) Act, 1983 applied to the State of Assam alone.
• Under that Act the burden of establishing that a person was an illegal migrant lay on the complainant or the referring authority, and an elaborate procedure before tribunals had to be followed.
• Under the Foreigners Act, 1946, which applied in the rest of India, S.9 placed the burden of proving that a person is not a foreigner on that person.
• The practical consequence was that over many years the 1983 Act produced very few determinations and even fewer deportations, while the influx continued on a large scale.
• The petitioner contended that the influx had altered the demographic character of parts of Assam, threatened its cultural identity and internal security, and amounted to external aggression which the Union was bound under Art.355 to repel.
• It was also contended that applying a materially less effective law to Assam alone, and a more effective one to the rest of the country, was discriminatory.

Issue

1. Whether the duty imposed on the Union by Art.355 is enforceable; whether large scale illegal migration can constitute external aggression; and whether the 1983 Act was constitutionally valid.

Held

• The Act was struck down. The Court held that "external aggression" in Art.355 is not confined to armed attack by a foreign State: a massive and sustained influx of persons from outside the country, capable of altering the demographic composition of a region and threatening its security and identity, can constitute external aggression. Article 355 imposes a duty on the Union, and that duty is enforceable; it is not merely a preamble to Arts.356 and 357. A law which so structured the burden of proof and the procedure that detection became practically impossible was inconsistent with the discharge of that duty and had to fall. On its removal the Foreigners Act, 1946 would apply to Assam as it applies elsewhere.

Ratio Decidendi

Article 355 states an obligation in mandatory terms, and an obligation implies a corresponding accountability; if it were merely descriptive, the Union could stand by while a State was overwhelmed. Where Parliament legislates in the field, the legislation must be consistent with the duty, and a measure whose practical effect is to defeat the very object it professes to serve cannot be justified as a legitimate exercise of choice as to means.