2020 Statelessness & Citizenship Review 2(1) An Act to provide for the establishment of Tribunals for the determination, in a fair manner, of the question whether a person is an illegal migrant to enable the Central Government to expel illegal migrants from India and for matters connected therewith or incidental thereto. 28 The Illegal Migrants (Determination by the Tribunal) Act emphasised ‘procedural fairness’ and amongst other protections, placed the burden of proof that a person was a foreigner upon the government. 29 Like any other court in India, 30 the number of cases decided by the tribunal were few, 31 and it was the burden of proof provision that was alleged to be responsible. The apparent failure of the Illegal Migrant Determination Tribunal, which was set up in 1983 to meet the expectations of Assamese stakeholders, resulted in the filing of a petition in the Supreme Court by one Sarbananda Sonowal, then a student leader (who is presently the Chief Minister of the State of Assam) challenging the validity of the Illegal Migrants (Determination by Tribunal) Act, 1983. A few years later, in 2005, in Sarbananda Sonowal v Union of India (‘Sonowal I’), 32 the Supreme Court of India declared the Illegal Migrants (Determination by Tribunal) Act, 1983 to be invalid because of the procedural fairness it sought to provide was extremely difficult, cumbersome and time consuming. 33 Incidentally, the Illegal Migrants (Determination by Tribunal) Act, 1983, now invalidated by the Supreme Court of India, also provided eligibility, qualification and condition of service criteria for the members of the tribunal — a feature absent in FTs. Until its invalidation, the Illegal Migrants Determination Tribunal was determining the cases of persons referred to it by the Central Government and other agencies to whom such a power had been delegated. After its invalidation, the power to determine whether a person is a foreigner is exercised by the FT. 34 Soon after 2005, another public interest litigation was filed in the Supreme Court of India seeking implementation of the amended Indian Citizenship Act, 1955, 35 which empowered the government to create a NRC for Assam, 36 and sought to enforce the government’s promise in the Assam Accord to detect, declare 28 29 30 31 32 33 34 35 36 Illegal Migrants (Determination by Tribunal) Act, 1983 (India) Act No 39 of 1983. See ibid s 11. It is reported in June 2019 that there were about 4.5 million cases pending in various High Courts in India. See ‘Out of 43 Lakh Cases Pending in High Courts, over 8 Lakh a Decade Old’, the Economic Times (online, 27 June 2019) <https://economictimes.indiatimes.com/news/politics-and-nation/out-of-43-lakh-casespending-in-high-courts-over-8-lakh-a-decade-old/articleshow/69974916.cms?from=mdr>. See Sarbananda Sonowal v Union of India [2005] 5 SCC 665 (Supreme Court of India) 682 [8] (‘Sonowal I’): Figures as on 31-3-2000, 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 deportation of post-1971 foreigners in Assam and, therefore, the same should be repealed. ibid. ibid 726 [84](1)–(3). ibid 726 [84](3). (India) Act No 57 of 1955. Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 (India) GSR 937(E), r 4. Rule 4A differentiates preparation of the National Register of Citizens (‘NRC’) in Assam from the rest of the country by replacing house to house enumeration with invitation and receipt of applications from all citizens, for collection of specified particulars relating to each family and individual, residing in the state. 117