IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO 924 OF 2017

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

ASHWINI KUMAR UPADHYAY …PETITIONER

VERSES

UNION OF INDIA & OTHERS ...RESPONDENTS

PAPER BOOK

[FOR INDEX KINDLY SEE INSIDE]

(ADVOCATE FOR PETITIONER: R.D.UPADHYAY)

 RECORD OF PROCEEDINGS

Sr.No. Date of Record of Proceedings Pages

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.
 INDEX

S.No. PARTICULARS PAGES

1. Listing Performa A-A1

2. Synopsis and List of Dates B-H

3. Writ Petition with Affidavit 1-41

4. Annexure P-1: 42-129

Law Commission Report No-175

The Foreigners (Amendment) Bill 2000

 PERFORMA FOR FIRST LISTING
Section: PIL

The case pertains to (Please tick / check the correct box):

 Central Act: Constitution of India

 Section: Article 21

 Central Rule: N/A

 Rule No: N/A

 State Act: N/A

 Section: N/A

 State Rule: N/A

 Rule No: N/A

 Impugned Interim Order: N/A

 Impugned Final Order / Decree: N/A

 High Court: N/A

 Name of Judges: N/A

 Tribunal / Authority Name : N/A

1. Nature of Matter: Civil

2. (a) Petitioner / Appellant : Ashwini Kumar Upadhyay

(b) Email ID: [email protected], [email protected]

(c) Phone No: 08800278866, 09911966667,

3. (a) Respondent: Union of India and others

(b) Email ID: N/A

(c) Phone No: N/A

4. (a) Main Category: 08 PIL Matters

(b) Sub Category: 0812 Others

5. Not to be listed before: N/A

 6. Similar / Pending matter: WP(C) 793 of 2017

7. Criminal Matters:

(a) Whether accused / convicted has surrendered: N/A

(b) FIR / Complaint No: N/A

(c) Police Station: N/A

(d) Sentence Awarded: N/A

(e) Sentence Undergone: N/A

8. Land Acquisition Matters:

(a) Date of Section 4 Notification: N/A

(b) Date of Section 6 Notification: N/A

(c) Date of Section 17 Notification

9. Tax Matters: State the Tax Effect: N/A

10. Special Category: N/A

11. Vehicle No in case of motor accident claim matters): N/A

12. Decided Cases with Citation: N/A

Date: 22.09.2017

Advocate for Petitioner

(R.D.Upadhyay)

Advocate-on-Record

Registration Code No-0589

[email protected]

011-23070343, 9891050515
 SYNOPSIS

The large-scale illegal migrants, particularly from

Myanmar and Bangladesh have not only threatened the

demographic structure of bordering districts but have

seriously impaired the security and national integration,

particularly in the present circumstances. The need for

expeditious identification of illegal migrants is more

pressing now than ever. It is not a matter of dealing with a

religious or linguistic group but question of identifying

those who illegally crossed over border and continue to

live in India contrary to law and Constitution.

The Law Commission in 175th Report (21.02.2000)

on the Foreigners (Amendment) Bill, 2000 has also dealt

with this issue. While noting that entry of illegal migrants

and other undesirable aliens into India has posed a grave

threat to our democracy and the security of India,

especially for the eastern part of the country and Jammu

and Kashmir, the Law Commission has observed that

influx of migrants from Bangladesh has remained

unabated and has acquired frightening proportions. The

Law Commission has also referred to the Report of the

Governor of Assam dated 8th November, 1998 submitted

to the President of India highlighting dangerous

dimensions of the unprecedented migration of

Bangladeshis to Assam and the security threats and

strategic and economic consequences thereof. The Law

Commission has proposed a draft Foreigners (Amendment)

Bill, governing foreigners in India.

On 08.11.1998, the then Governor of Assam, Lt. Gen.

S.K. Sinha (Retired), (former Deputy Chief of Army Staff)

sent a comprehensive report to the Union Government,

which was prepared after thorough inspection of border

areas and districts, discussion with Indian Ambassador in

Bangladesh and talks with political leaders. Some portions

of the report are being reproduced here:- “1. The unabated

influx of illegal migrants from Bangladesh into Assam and

the consequent perceptible change in the demographic

pattern of the State has been a matter of grave concern. It

threatens to reduce the Assamese people to a minority in

their own State, as happened in Tripura and Sikkim. 2.

Illegal migration into Assam was the core issue behind the

Assam student movement. It was also the prime

contributory factor behind the outbreak of insurgency in

the State. Yet we have not made much tangible progress in

dealing with this all important issue. 3. There is a

tendency to view illegal migration into Assam as a regional

matter affecting only the people of Assam. It’s more

dangerous dimensions of greatly undermining our

national security, is ignored. The long cherished design of

Greater East Pakistan/Bangladesh, making in-roads into

strategic land link of Assam with the rest of the country,

can lead to severing the entire land mass of the North-

East, with all its rich resources from the rest of the

country. They will have disastrous strategic and economic

consequences.” However, Central and State Governments

have yet not taken apt steps in this regard.

The huge numbers of illegal migrants have occupied

vast tracts of land, particularly at sensitive international

border, which has very serious implication for national

security. Continuing influx of Myanmar and Bangladesh

nationals has been on account of a variety of reasons

including (a) ethnic proximity and kinship enabling easy

shelter to the immigrants; (b) porous and easily negotiable

border; (c) better economic opportunities; (d) interested

religious and political elements encouraging immigration.

It is difficult to make realistic estimate of the number of

illegal immigrants, because they enter surreptitiously and

are able to mingle easily with local population due to

ethnic/linguistic similarities. Demographic composition in

country, particularly the bordering districts has altered

with illegal immigration from Myanmar and Bangladesh.

The bordering districts of Assam, West Bengal Meghalaya,

Mizoram and Tripura have recorded growth of population

higher than national average. Illegal immigrants have been

using West Bengal as a corridor to migrate to other parts.

The large-scale influx of illegal immigrants has led to large

tracts of sensitive international borders being occupied by

foreigners. This has not only a serious implications for our

internal security, but also infringes upon right to life and

liberty of Indian Citizens guaranteed under the Article 21.

However, Central and State Governments are not taking

appropriate steps to identify and deport illegal migrants.

Each and every Indian citizens have the rights to

know about the endangering burden of illegal migrants on

their heads and on their generations to come. Now, Union

Government is on a discussion to deport only 40,000

Rohingya migrants from India, when it doesn’t know even

that this statistics is old one and the total illegal Rohingya

population crossed the number 60000 in 2016, as per

statements of many Rohingya outfits, who have target to

rise the numbers of Rohingyas up to 1 lakh by 2018.

Now, Union Government is ready to deport 40,000

Rohingya migrants from India, but what about at least

three crores illegal Bangladeshi infiltrators in India. Even

they have no rights to claim any refugee status in India.

Hon’ble Prime Minister of India assured the nation to drive

out all illegal infiltrators from India, in several election

meetings. However, Government did nothing in this regard

till date. In a election meeting at Serampore, Hoogly (WB),

Hon’ble Prime Minister of India on 20.09.2015 assured the

Country that all the illegal Bangladeshi migrants will be

deported But, unfortunately, the numbers of Bangladeshi

infiltrators in India haven’t be lessened anyway from then.

In fact, like previous government, the present government

is in a deplorable darkness about the facts and figures of

the burden of crores of illegal infiltrators. This number is

never be less than four crores in minimum.

Petitioner states the figure as five crores at least, but

by the passing of time, at least one crore of them managed

Aadhaar, EPIC, Ration Cards, Driving License, Bank

Passbook, PAN Card, and ATM etc to strengthen their

claim as Indian Citizens. On 16.11.2016, Minister of State

for Home Mr. Kiren Rijiju claimed that there are 2-crore

illegal Bangladeshi migrants in India, but he was not sure.

A prominent leader of Assam claimed that numbers

of illegal Bangladeshi in Assam is about. On 14.07.2004,

in reply to a question in the Parliament, the then Minister

of State for Home Affairs Mr. Prakash Jaiswal informed

that West Bengal has 57 Lakhs of the illegal Bangladeshi

alone. In these span of more than 13 years, the infiltrators

in West Bengal has crossed a mark of one crore. So, the

estimation of Mr. Rijiju is far from the truth.

As per, Dr. Mohit Roy, an expert on demographic

changes and Indo-Bangladesh relationship hints the

number of infiltrators from Bangladesh into India has an

size of 4% of total population in India as broad day light.

Trying to assess the quantum of illegal infiltrators and its

menace, Dr Roy discussed the matter in an article in

Astha Bharati in 2009, very eloquently. However, all these

were done taking the accounts and data up to Census

2001. The present day situations are grimmer now.

Therefore, Government must steps, sooner the better.

Petitioner states that Union Government is neither

serious enough to stop illegal infiltrators in India and nor

willing to deport all the illegal migrants. That is why,

deportation of 40 thousand Rohingya infiltrators comes

around in discussion instead of deportation of four corores

infiltrators. Keeping in view the vote bank politics, many

States like Delhi, Assam, West Bengal, Tripura, Madhya

Pradesh and Maharashtra ignored the presence of illegal

Bangladeshi infiltrators in those states time to time.

Petitioner states that if present Union Government is

not determined enough to end the menace of illegal

migrants or infiltrators immediately, that will shape a

major social-economic crisis in near future. Infiltration is

not just another problem to us. It is a silent invasion of

foreigners in India in its true sense. Therefore, not only

40000 illegal Rohingyas infiltrators, the Union and State

Governments must detain and deport all the infiltrators

from India without further delay.

 LIST OF DATES

23.11.1946: The Foreigners Act, 1946 was enacted to

grant certain powers to government in

matters of foreigners in India. The Act

defines a foreigner as a person who is not a

citizen of India. Section 9 states that, if

nationality of a person is not evident as per

preceding section 8, the onus of proving the

citizenship shall lie upon such person.

10.02.1948: In exercise of power conferred by Section 3

of the Foreigners Act 1946 & in suppression

of the Foreigners Order 1939 & notification

amending the same, Central Government

passed the Foreigner Order 1948.

21.09.2000: Law Commission submitted its 170th Report

namely “The Foreigners (Amendment Bill)

2000 to the then Union Law Minister.

22.02.2017: Demographic composition has altered with

illegal immigration. This has not only a

serious implications for internal security,

but also infringes upon right to life and

liberty of Indian Citizens. However, Central

and State Governments are not taking steps

to detain & deport illegal migrants. Hence,

this petition in larger public interest.

 IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO 924 OF 2017
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
Ashwini Kumar Upadhyay
S/o Sh. Suresh Chandra Upadhyay
Office: 15, M.C. Setalvad Chambers Block
Supreme Court of India, New Delhi-110001
Residence: G-284, Govindpuram, Ghaziabad ...Petitioner
Verses
1. Union of India
Through the Secretary,
Ministry of Home Affairs,
North Block, New Delhi-110001
2. Government of Andhra Pradesh,
Through the Chief Secretary
Secretariat, Hyderabad-500022
3. Government of Arunachal Pradesh,
Through the Chief Secretary
Arunachal Pradesh Civil Secretariat, Itanagar- 791111
4. Government of Assam,
Through the Chief Secretary
Assam Sachivalaya, Dispur, Guwahati-781006
5. Government of Bihar
Through the Chief Secretary
Old Secretariat, Patna-800015
6. Government of Chattisgarh,
Through the Chief Secretary
DKS Bhawan, Mantralaya, Raipur-492001
7. Government of Goa
Through the Chief Secretary
Secretariat Porvorim - 403501
8. Government of Gujarat
Through the Chief Secretary
New Sachivalaya, Gandhingar-382010
9. Government of Haryana
Through the Chief Secretary
Harayana, Civil Secretariat Chandigarh-160009
10. Government of Himachal Pradesh
Through the Chief Secretary
Secretariat, Shimla- 171002
11. Government of Jammu & Kashmir
Through the Chief Secretary
Civil Secretariat, Jammu-180001,
12. Government of Jharkhand
Through the Chief Secretary
Secretariat, Ranchi-834004
13. Government of Karnataka
Through the Chief Secretary
Vidhan Sauda, Secretariat, Bangalore-560001
14. Government of Kerala
Through the Chief Secretary
Secretariat, Thiruvananthapuram-695001
15. Government of Madhya Pradesh
Through the Chief Secretary
Mantralaya, Vallabh Bhawan, Bhopal-462004
16. Government of Maharashtra
Through the Chief Secretary
Mantralaya, Mumbai-400032
17. Government of Manipur
Through the Chief Secretary
Manipur Secretariat, Imphal-790001
18. Government of Meghalaya
Through the Chief Secretary
Meghalaya Civil Secretariat, Shillong-793001
19. Government of Mizoram,
Through the Chief Secretary
Civil Secretariat, Aizwal- 796001
20. Government of Nagaland
Through the Chief Secretary
Nagaland Civil Secretariat, Kohima-790001
21. Government of Orissa
Through the Chief Secretary
Secretariat, Bhubaneshwar- 751001
22. Government of Punjab
Through the Chief Secretary
Punjab Secretariat, Chandigarh-160017
23. Government of Rajasthan
Through the Chief Secretary
Secretariat, Jaipur-302001
24. Government of Sikkim
Through the Chief Secretary
Secretariat, Gangtok- 737101
25. Government of Tamil Nadu
Through the Chief Secretary
Secretariat, Chennai-600009
26. Government of Tripura
Through the Chief Secretary
Civil Secretariat, Agaratala-799001
27. Government of Uttar Pradesh
Through the Chief Secretary
Secretariat, Lucknow-226001
28. Government of Uttarakhand
Through the Chief Secretary
Subhash Road, Secretariat, Dehradun-248001
29. Government of West Bengal
Through the Chief Secretary
Secretariat, Writers Building Kolkata-700001
30. Government of Andaman & Nicobar Islands,
Through the Chief Secretary
Secretariat & Administration, Port Blair
31. Union Territory of Chandigarh,
Through the Administrator
Punjab Raj Bhawan, Sector – 6, Chandigarh-160017
32. Government of Dadra & Nagar Havelli,
Through the Administrator
Secretariat, Silvassa-396230
33. Government of Daman & Diu,
Through the Administrator
Secretariat Daman, Daman & Diu -396210
34. Government of NCT of Delhi,
Through the Chief Secretary
Delhi Secretariat, New Delhi- 110002
35. Union Territory of Lakshadweep,
Through the Administrator
Kavaratti, Lakshadweep-682555
36. Union Territory of Puducherry,
Through the Chief Secretary
Secretariat, Puducherry- 605001 ………Respondents

DIRECT THE CENTRAL AND STATE GOVERNMENTS TO TAKE

STEPS TO IDENTIFY, DETAIN AND DEPORT ILLEGAL MIGRANTS,
PARTICULARLY BANGLADESHIS & ROHINGYAS WITHIN ONE YEAR;
DIRECT THE CENTRAL GOVERNMENT TO DECLARE ILLEGAL
MIGRATION, A COGNIZABLE, NON-BAILABLE, NON-COMPOUNDABLE
OFFENCE AND AMEND RESPECTIVE LAWS & RULES ACCORDINGLY;

To,
THE HON’BLE CHIEF JUSTICE
& LORDSHIP’S COMPANION JUSTICES
OF HON’BLE SUPREME COURT OF INDIA
HUMBLE PETITION OF ABOVE-NAMED PETITIONER
THE MOST RESPECTFULLY SHOWETH AS UNDER:
1. That the petition is not guided by self-gain or for gain of

any other individual person, institution or body. There is

no motive other than the larger public interest in filing

this petition. Petitioner has no personal interests or

individual gain, private motive or oblique reasons in filing

this petition. It is totally bona-fide with the sole purpose of

larger public interest and in the interest of democracy.

That the source of averments made in this petition is

personal knowledge and information collected from

various sources, including newspapers and websites.

Petitioner is filing this PIL under the Article 32 for

direction to Central and State governments to take steps

to identify, detain and deport illegal migrants, particularly

bangladeshis & rohingyas within one year and to declare

the illegal migration, a cognizable, non-bailable, non-

compoundable offence and amend respective laws & rules

accordingly without further delay on priority.

2. That Union and State Governments are likely to be

affected by the orders sought in this petition and they

have been impleaded as Respondents. No other persons,

bodies, institutions are likely to be affected by this.

3. That petitioner is an Advocate and a social-political

activist, contributing his best to the development of the

socially-economically downtrodden people of the country

and ameliorating their condition.

4. That large-scale illegal migrants, particularly from

Myanmar and Bangladesh have not only threatened the

demographic structure of bordering districts but have

seriously impaired the security and national integration,

particularly in the present circumstances. The need for

expeditious identification of illegal migrants is more

pressing now than ever. It is not a matter of dealing with a

religious or linguistic group but question of identifying

those who illegally crossed over border and continue to

live in India contrary to law and Constitution.

5. That Law Commission in its 175th Report (21.09.2000) on

the Foreigners (Amendment) Bill, 2000 has also dealt with

this issue. While noting that entry of illegal migrants and

other undesirable aliens into India has posed a grave

threat to our democracy and the security of India,

especially for the eastern part of the country and Jammu

and Kashmir, the Law Commission has observed that

influx of migrants from Bangladesh has remained

unabated and has acquired frightening proportions. The

Law Commission has also referred to the Report of the

Governor of Assam dated 8th November, 1998 submitted

to the President of India highlighting dangerous

dimensions of the unprecedented migration of

Bangladeshis to Assam and the security threats and

strategic and economic consequences thereof. The Law

 Commission has proposed a draft Foreigners (Amendment)

Bill, governing foreigners in India. Copy of the Report is

annexed as Annexure P-1 (Page 42-129)

6. That on 08.11.1998, the Governor of Assam, Lt. Gen. S.K.

Sinha (Retired), (former Deputy Chief of Army Staff) sent a

comprehensive report to the Union Government, which

was prepared after thorough inspection of border areas

and districts, discussion with Indian Ambassador in

Bangladesh and talks with political leaders. Some portions

of the report are being reproduced here:- “1. The unabated

influx of illegal migrants from Bangladesh into Assam and

the consequent perceptible change in the demographic

pattern of the State has been a matter of grave concern. It

threatens to reduce the Assamese people to a minority in

their own State, as happened in Tripura and Sikkim. 2.

Illegal migration into Assam was the core issue behind the

Assam student movement. It was also the prime

contributory factor behind the outbreak of insurgency in

the State. Yet we have not made much tangible progress in

dealing with this all important issue. 3. There is a

tendency to view illegal migration into Assam as a regional

matter affecting only the people of Assam. It’s more

dangerous dimensions of greatly undermining our

national security, is ignored. The long cherished design of

Greater East Pakistan/Bangladesh, making in-roads into

 strategic land link of Assam with the rest of the country,

can lead to severing the entire land mass of the North-

East, with all its rich resources from the rest of the

country. They will have disastrous strategic and economic

consequences.” However, Central and State Governments

have yet not taken apt steps in this regard.

7. That huge numbers of illegal migrants have occupied vast

tracts of land, particularly at sensitive international

border, which has very serious implication for national

security. Continuing influx of Myanmar and Bangladesh

nationals has been on account of a variety of reasons

including (a) ethnic proximity and kinship enabling easy

shelter to the immigrants; (b) porous and easily negotiable

border; (c) better economic opportunities; (d) interested

religious and political elements encouraging immigration.

It is difficult to make realistic estimate of the number of

illegal immigrants, because they enter surreptitiously and

are able to mingle easily with local population due to

ethnic/linguistic similarities. Demographic composition in

country, particularly the bordering districts has altered

with illegal immigration from Myanmar and Bangladesh.

The bordering districts of Assam, West Bengal Meghalaya,

Mizoram and Tripura have recorded growth of population

higher than national average. Illegal immigrants have been

using West Bengal as a corridor to migrate to other parts.

 The large-scale influx of illegal immigrants has led to large

tracts of sensitive international borders being occupied by

foreigners. This has not only a serious implications for our

internal security, but also infringes upon right to life and

liberty of Indian Citizens guaranteed under the Article 21.

However, Central and State Governments are not taking

appropriate steps to identify and deport illegal migrants.

8. That three types of illegal migrants are living in India: - (a)

those who came with valid visa/documents & overstayed;

(b) those who came with forged visa/documents; and (c)

those who entered surreptitiously. During talks with the

Prime Ministers of India in February, 1972, the Prime

Minister of Bangladesh had assured the return of all

Bangladesh nationals who had taken shelter in India since

25.03.1971. Accordingly, a circular was issued by the

Government of India on 30.09.1972, setting out guidelines

for action to be taken in respect of persons who had come

to India from Bangladesh. According to this circular, those

Bangladesh nationals who had come to India before

25.03.1971 were not to be sent back and those who

entered on or after the said date were to be repatriated.

9. That there has been sharp increase of Muslim population

in our bordering districts. For example, Muslim population

of Assam has shown a rise of 77.42% in 1971-1991,

whereas Hindu population has risen by nearly 41.89%

 during the said period. There are three Districts in Assam,

which has borders with Bangladesh viz. Karimganj,

Cachar and Dhubri. All India percentage of decadal

increase in population during 1981-1991 is 23.85%

whereas in the Border districts of Assam namely,

Karimganj shows decadal increase of 42.08%, Cachar

district 47.59% and Dhubri district 56.57%. From the

above it can be assumed that the infiltration of foreigners

contributed significantly to sharp increase of population.

10. That Failure to get Assam and entire Bengal included

in Pakistan in 1947 remained a source of abiding

resentment in that country. Mr. Zulfikar Ali Bhutto in his

book “Myths of Independence” wrote as thus: “It would be

wrong that Kashmir is the only dispute that divides India

and Pakistan, though undoubtedly the most significant.

One at least is nearly as important as the Kashmir

dispute, that of Assam and some districts of India

adjacent to East Pakistan. To these Pakistan has very

good claims”. Even a pro-India leader like Sheikh Mujibur

Rahman in his book “Eastern Pakistan; its population &

economics” observed: “Because Eastern Pakistan must

have sufficient land for its expansion and because Assam

has abundant forests and mineral resources, coal,

petroleum etc., Eastern Pakistan must include Assam to

be financially & economically strong”.

11. That there are other contributory factors facilitating

infiltration from Bangladesh and Myanmar. Ethnic,

linguistic and religious commonality between the illegal

migrants and many people on our side of the border

enables them to find shelter. It makes their detection

difficult. Some political parties have been encouraging and

even helping illegal migration with a view to build vote

banks. These immigrants work for lower remuneration

than local people. This makes them acceptable. With

corruption being all pervasive, corrupt officials are bribed

to provide help. Many such rackets has been busted.

Recently many individuals were found providing forged

citizenship certificates and other documents to migrants.

12. That we have chosen to remain virtually oblivious to

the grave danger to national security arising from this

unabated influx of illegal migrants. The prophecy that

except the Sibsagar district, the Assamese people will not

find themselves at home in Assam, is well on its way to

becoming true as reflected by the present demographic

pattern in other States.

13. That on 06.05.1997, the then Home Minister of India,

Mr. Inderjit Gupta stated in the Parliament that there were

10 million illegal migrants residing in India. Quoting Home

Ministry/Intelligence Bureau, India Today on 10.08.1998

has given the details of these illegal migrants by States as

 thus:- West Bengal - 5.4 million, Assam - 4 million,

Tripura - 0.8 million, Bihar - 0.5 million, Maharashtra -

0.5 million, Rajasthan - 0.5 million, Delhi - 0.3 million,

Making a total of - 10.83 millions. In the case of Muslims

the Assam growth rate was much higher than the All India

rate. This suggests continued large scale Muslim illegal

migration into Assam. Muslim population in Assam has

shown a rise of 77.42 per cent in 1991 from what it was in

1971. Hindu population has risen by nearly 41.89 per

cent in this period. Muslim population in Assam has risen

from 24.68 % in 1951 to 28.42 % in 1991. The growth of

Muslim population has been emphasized in the previous

paragraph to indicate the extent of illegal migration from

Bangladesh and Myanmar to Assam because as stated

earlier, the illegal migrants coming into India after 1971

have been almost exclusively Muslims.

14. That Pakistan’s ISI has been active in Bangladesh

and Myanmar and supporting militant movement in India.

Muslim militant organization have mushroomed in many

States and there are reports of hundreds of Muslim youths

having gone for training to Afghanistan and Pakistan. The

dangerous consequences of large-scale illegal migration

from Bangladesh and Myanmar, for the Nation as a whole,

need to be emphatically stressed. No misconceived and

mistaken notions of secularism should be allowed to come

 in the way of doing so. As a result of population movement

from Bangladesh and Myanmar, the spectre looms large of

the indigenous people of Assam and West Bengal being

reduced to a minority in their home State. Their cultural

survival will be in jeopardy, their political control will be a

weakened and their employment opportunities will be

undermined. The silent and invidious demographic

invasion may result in the loss of geostrategically vital

districts of Assam and Bengal. The influx of these illegal

migrants is turning these districts into a Muslim majority

region. It will then only be a matter of time when a

demand for their merger with Bangladesh may be made.

The rapid growth of Islamic fundamentalism may provide

for driving force for this demand. In this context, it is

pertinent that Bangladesh has long discarded secularism

and has chosen to become an Islamic State. Loss of lower

Assam will severe the entire land mass of the North East,

from the rest of India and the rich natural resources of

that region will be lost to the Nation.

15. That there is good and sound reason for placing the

burden of proof upon the person concerned who asserts to

be a citizen of a particular country. In order to establish

one’s citizenship, normally he may be required to give

evidence of (i) his date of birth (ii) place of birth (iii) name

of his parents (iv) their place of birth and citizenship.

 Sometimes the place of birth of his grandparents may also

be relevant like under Section 6-A(1)(d) of the Citizenship

Act. All these facts would necessarily be within the

personal knowledge of the person concerned and not of

the authorities of the State. After he has given evidence on

these points, the State authorities can verify the facts and

can then lead evidence in rebuttal, if necessary. If the

State authorities dispute the claim of citizenship by a

person and assert that he is a foreigner, it will not only be

difficult but almost impossible for them to first lead

evidence on the aforesaid points. This is in accordance

with the underlying policy of Section 106 of Evidence Act,

which says, when any fact is especially within knowledge

of any person, burden of proving that fact is upon him.

16. That the influx of foreigners who illegally migrated

into India across the borders and remained in the country

poses a threat to the unity, integrity and security of

country. A substantial number of such infiltrators and

illegal migrants by taking advantage of their ethnic

similarities and other connections with the people of India

illegally remained in India without having in their

possession lawful authority.

17. That according to the Foreigners (Report to the police)

Order, 2001, made under the Foreigners Act 1946, where

any person who has reason to believe that a foreigner has

 entered India without valid documents or is staying in

India beyond the authorized period of stay accommodates

such foreigner in a premises occupied owned or controlled

by him, for whatever purpose, it shall be the duty of such

person to inform the nearest police station, within 24

hours, of the presence of such foreigner. Foreigners Act

empowers the Indian administration to detain a person

until he/she is deported back to his/her own country.

18. That as per 2001 census there are 3,084,826 people

in India who came from Bangladesh. Extrapolating the

census data for the state of Assam alone gives a figure of 2

million. Figures as high as 20 million are also reported in

the government and media. An analysis of the numbers by

the Indian Statistical Institute revealed that on average

around 91000 Bangladeshis illegal crossed over to India

every year during the years 1981-1991.

19. That the trip to India from Bangladesh is one of the

cheapest in the world, with a trip costing around Rs.2000,

which includes the fee for the “Tour Operator”. As

Bangladeshi are cultural similar to the Bengali people in

India, they are able to pass off as Indian citizens and settle

down in any part of India to establish a far better future

than they could in Bangladesh, for a very small price. The

false identity can be bolstered with false documentation

available for as little as Rs.1000 can even make them part

 of the vote bank. During the Bangladesh Liberation War at

least 10 million Bangladeshis crossed into India illegal to

seek refuge from widespread rape and genocide.

20. That most of the Bangladesh national migrated to the

border states, particularly West Bengal and Assam. Due to

persecution during genocide, illegal migrants have been

defined in Assam Accord as those who infiltrated illegally

after 1971. This issue became more visible after the 1991

census when patterns of abnormally high growth rate of

Muslims were observed in the border states Assam and

West Bengal. In 1991 census Muslim population growth

rates in these states were found to be much higher than

the growth rates of the local Hindu population even after

adjusting for the usual higher growth rate of Muslims

observed throughout the country.

21. That there are estimated 50000-100000 Burmese

China immigrants residing in India, mostly in

Mizoram and a small number in Delhi. There are about

10000 people from Pakistan living illegally. The

immigrants had come to India to obtain citizenship. India

had 20000 illegal immigrants from Afghanistan. Their

demand was to put a stop on the influx of immigrants and

deportation of those who have already settled. It gradually

took violent form and ethnic violence started between

Assamese & Bengalis mostly Muslim. It eventually led to

 infamous Nellie massacre in 1983 due to a controversy

over 1983 election. In 1985, Indian Government signed

the Assam accord with agitating leaders to stop the issue.

22. That after 1991 census the changing demographic

patterns in border districts became more visible. It created

anxiety and tension in India throughout the nineties. Both

conservatives as well as moderates expressed concern on

this issue. The first BJP government came into power in

1998 and subsequently ordered the construction of

the Indo-Bangladesh barrier to stop migrants and illegal

trade along the border. It was planned to enhance the

already existing barrier in Assam and to encircle West

Bengal, Tripura and Mizoram as well. The other Indian

state affected by this problem, West Bengal remained

mostly calm during this period. However, Indian

newspapers reported that “the state government has

reports that illegal Bangladeshi migrants have trickled

into parts of rural Bengal, including Nandigram, over the

years, and settled down as sharecroppers with the help of

local Left leaders. Though a majority of these immigrants

became tillers, they lacked documents to prove the

ownership of land. Although Kerala is at a large distance

from Bangladesh (2500 km), Bangladeshi illegal migrants

have been moving to Kerala owing to the high wages for

unskilled and semi-skilled laborers and the presence of

 sizable Muslim population in the State. The Kerala police

are reportedly finding it difficult to check the influx of

these Bangladeshi illegal migrants.

23. That Kerala State Intelligence officials said they found

that large section of Migrant labourers in Kerala claiming

to be from West Bengal or even Assam were actually from

Bangladesh. Anti national activities have been reported;

the latest in which in August 2016, a native of west

Bengal was arrested for insulting the national flag and he

was later found to be an illegal immigrant from

Bangladesh. There is said to be major racket at the

borders of West Bengal and Assam with Bangladesh,

which provides illegal migrants with identity cards.

24. That in 2005, this Hon’ble Court ruled IMDT Act as

unconstitutional while with reference to the Sinha Report

and maintained that impact of the aggression represented

by large-scale illegal migration from Bangladesh had made

the life of the people of Assam specially one of seven sister,

which is Tripura the land of tiprasa “wholly insecure and

the panic generated thereby had created fear psychosis” in

other north-eastern States. In August 2008, the Delhi

High Court dismissed a petition by a Bangladeshi national

against her deportation. The Delhi High Court ruled that

illegal Bangladeshi immigrants pose a danger to India's

internal security and sovereignty.

25. That apart from immigrants, a large numbers

smugglers regularly cross the porous border along West

Bengal into India. They mainly engage in smuggling goods

and livestock from India into Bangladesh to avoid high

tariff imposed on some Indian goods by Bangladesh

government. Bangladeshi women and girls are also

trafficked to India and via India to Middle East for forced

labor and commercial sexual exploitation. The Centre for

Women and Children Studies estimated in 1998 that

27000 Bangladeshis have been forced into prostitution in

India. According to a report, 1% of foreign prostitutes in

India & 2.7% of prostitutes in Kolkata are Bangladeshi.

26. That as evident from the Constitutional guarantee

flowing from Article 19 of the Constitution, the right to

reside and settle in any part of the territory of India as

well as right to move freely throughout the territory of

India is available only to the citizens of India as evident

from Article 19(1) of the Constitution. However, this right

of Indian citizen is being violated due to illegal immigrant.

27. That fundamental rights of Indian citizens under

Article 21 of the Constitution needs to be addressed by the

State. Right to life mean to live with human dignity,

having a right to food, having a right to shelter, having a

right to good environment, having a right to earn

livelihood by lawful means.

28. That the Constitution makes it imperative for the

State to follow the Directive Principles of State Policy while

discharging its executive functions of governance. Some

of the relevant Articles contained in Part IV of the

Constitution are Article 38, 39 and 41 of the Constitution.

The State, in exercise of its sovereign executive functions

should take administrative policy decisions keeping the

aforesaid Directive Principles in mind so as to ensure that

first and the foremost, obligations of the State towards its

citizens are discharged within available national resources

and while ensuring their safety and security.

29. That India as a sovereign nation, has the first and the

foremost constitutional duty and obligation towards its

citizens to ensure that demographic and social structure

of the country is not changed to their detriment, the

resulting socio-economic problems do not occur to the

prejudice of its citizens and most importantly resources of

the nation are utilized to fulfill the basic rights of its own

citizens and are not diverted to detriment of the citizens

due to influx of illegal immigrants into territory of India.

30. That whenever the country faces a problem of influx

of illegal immigrants, the Central Government, in exercise

of its executive functions, takes policy decision depending

upon several facts, parameters, diplomatic and other

considerations, potential dangers to the nation etc.

31. That the provisions of Convention Relating to the

Status of Refugees, 1951 and Protocol Relating to the

Status of Refugees, 1967 cannot be relied upon India

since it is not a signatory of either of them. Since India is

not a party to the said Convention, or Protocol, the

obligations contained therein are not applicable to India.

While India is a party to the International Covenant on

Civil and Political Rights, the scope of the said Covenant

does not extend to the principles of non-refoulement.

32. That so far as the International Convention on

Protection of All Persons against Enforced Disappearances

and Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment is

concerned, India is yet to ratify these Conventions and

therefore, do not bind India. As evident from the express

and conscious use of expressions in Section 3 of the

Foreigner Act 1946, the legislative intent is clear, which is

to confer an administrative and executive discretion upon

the Central Government to take steps with regard to either

“all foreigners” or “with respect to any particular foreigner”

or “any specified class or description of foreigners”. This

discretion is necessary since parameters, circumstances

and other considerations will vary in each case as

explained above. But, Central Government is not taking

steps in spirit of the Foreigner Act 1946.

33. That the Central Government in exercise of its power

under the Foreigner Act made the Foreigners Order, 1948.

The provisions of the Act of 1946 in general and that of

Section 3(2)(c) in particular not only empowers but casts

an obligation upon the Central Government to deport a

person who is an illegal immigrant.

34. That the national security considerations should be

ranked the highest on country’s list of priorities given its

geopolitical influence in the region and its vulnerability to

cross border infiltrations due to the porous nature of its

borders which our country shares with many countries.

India has open / porous borders with Nepal, Bhutan,

Bangladesh, Pakistan, Myanmar etc. and has an easily

navigable sea route with Pakistan as well as Sri Lanka

making it vulnerable to a continuous threat of an influx of

illegal immigration &resultant problems arising therefrom.

35. That India is already saddled with a very serious

problem of illegal migrants and is attempting to address

this situation in the larger interest of the nation and

keeping the national resources of the country,

requirements of India’s own population, the national

security concerns of India and several other facts in

consideration which are based upon objective facts derived

from empirical data which are in the knowledge and

contemporaneous record of the Central Government.

36. That due to an already existing large influx of illegal

immigrants from the neighboring countries, demographic

profile of some of the bordering states has already

undergone a serious change which is already causing the

far-reaching complications in various contexts and is

taking its toll and has a direct detrimental effect on the

fundamental human rights of country’s own citizens. So

far as the Rohingyas are concerned, they have entered into

without any valid travel document and illegally from

Bangladesh and Myanmar using porous border. The total

number of such illegal immigrants into our country would

be more than 40,000 approximately as on date.

37. That continuance of Rohingyas’ illegal immigration

into India and their continued stay in India, apart from

being absolutely illegal, is found to be having serious

national security ramifications and has serious security

threats. Illegal influx of Rohingyas, in significant numbers,

have started into the territory of India since 2012-13 and

the Central Government has contemporaneous from

security agencies inputs and other authentic material

indicating linkages of some of the unauthorized Rohingya

immigrants with Pakistan based terror organizations and

similar organizations operating in other countries. Over

and above the said serious security concern already in

existence, more disturbing part is that there is an

 organized influx of illegal immigrants from Myanmar

through agents and touts facilitating illegal immigrants

Rohingyas via Benapole-Haridaspur & Hilli (West Bengal),

Sonamora (Tripura), Kolkata and Guwahati. This situation

is seriously harming the national security of the country.

38. That many Rohingyas are indulging in illegal / anti

national activities i.e. mobilization of funds through

hundi/hawala channels, procuring fake /fabricated Indian

identity documents for other Rohingyas and also indulging

in human trafficking. They are also using their illegal

network for illegal entry of others in the India. Many of

them have managed to acquire fake/fraudulently obtained

Indian identity documents i.e. PAN Card and voter cards.

39. That it is also found by the Central Government that

many of the Rohingyas figure in the suspected sinister

designs of ISI/ISIS and other extremists groups who want

to achieve their ulterior motives in India including that of

flaring up communal and sectarian violence in sensitive

areas of the country. The fragile north-eastern corridor

may become further destabilized in case of stridency of

Rohingya militancy, which the Central Government has

found to be growing, if permitted to continue. There is

also a serious potential and possibility of eruption of

violence against the Buddhists, who are Indian citizens

who stay on Indian soil, by the radicalized Rohingyas.

40. That Rohingyas with militant background are found

to be very active in Jammu, Delhi, Hyderabad and Mewat,

and have been identified as having a very serious and

potential threat to the internal / national security of India.

41. That India is a country with large population, surplus

labour force, and has complex social/cultural /economical

infrastructure. Providing facilities/privileges to illegal

immigrants out of the existing national resources, apart

from above referred direct threat to national security,

would also have a direct adverse impact upon Indian

citizens as it would deprive the Indian citizens of their

legitimate share in the employment sector, subsidized

housing, medical and educational facilities and would

thereby culminate in hostility towards immigrants

resulting into an inevitable social tension and law and

order problems. The fundamental rights of Indian citizens

would, therefore, be seriously violated.

42. That under the Foreigners Act, 1946 and in exercise

of the powers contained therein, the Central Government

and State Governments must take concrete steps to

detect and deport illegal immigrants. However, the Central

Government issued instructions regarding the procedure

to be followed for deportation, repatriation etc. of foreigner

national/illegal immigrants but did nothing seriously to

identify and deport illegal migrants.

43. That in Introduction to International Law by J.G.

Starke (1st Indian re-print 1994) in Chapter 12 (page 348),

the law on the points has been stated thus: - “Most states

claim in legal theory to exclude all aliens at will, affirming

that such unqualified right is an essential attribute of

sovereign government. The courts of Great Britain and the

United States have laid it down that the right to exclude

aliens at will is an incident of territorial sovereignty.

Unless bound by an international treaty to the contrary,

states are not subject to a duty under international law to

admit aliens or any duty thereunder not to expel them.

Nor does international law impose any duty as to the

period of stay of an admitted alien.” Like the power to

refuse admission this is regarded as an incident of the

State’s territorial sovereignty. International law does not

prohibit the expulsion enmasse of aliens. (page 351). That

reference has also been made to Article 13 of the

International Covenant of 1966 on Civil and Political

Rights, which provides that an alien lawfully in the

territory of a State party to the Covenant may be expelled

only pursuant to a decision reached by law, and except

where compelling reasons of national security otherwise

require is to be allowed to submit the reasons against his

expulsion and to have his case reviewed by and to be

represented for the purpose before the competent

 authority. This Covenant would apply provided an alien is

lawfully in India, namely, with valid passport, visa etc.

and not to those who have entered illegally or unlawfully.

44. That similar view has been expressed in Oppenheim’s

International Law (Ninth Edition. 1992, Paras 400,

401&413). The author has said that the reception of aliens

is a matter of discretion, and every State is by reason of its

territorial supremacy, competent to exclude aliens from

the whole or any part of its territory. In paragraph 413 it

is said that the right of States to expel aliens is generally

recognized. It matters not whether the alien is only on a

temporary visit, or has settled down for professional

business or any other purposes on its territory, having

established his domicile there. A belligerent may consider

it convenient to expel all hostile nationals residing or

temporarily staying within its territory; although such a

measure may be very harsh on individual aliens, it is

generally accepted that such expulsion is justifiable.

Having regard to Article 13 of the International Covenant

on Civil and Political Rights, 1966, an alien lawfully in a

State’s territory may be expelled only in pursuance of a

decision reached in accordance with law.

45. That in Rex vs. Bottrill (1947) 1 K.B. 41, it was said

that the King under the Constitution of United Kingdom is

under no obligation to admit into the country or to retain

 there when admitted, any alien. Every alien in the United

Kingdom is there only because his presence has been

licensed by the King. It follows that at common law the

King can at will withdraw his license and cause the

Executive to expel the alien, whether enemy or friend.

46. That for holding so reliance was placed on Attorney-

General for Canada vs. Cain [1906] AC 542, where Lord

Atkinson said: “One of the rights possessed by the

Supreme power in every state is the right to refuse to

permit an alien to enter that state, to annex what

conditions it pleases to the permission to enter it, and to

expel or deport from the state, at pleasure, even a friendly

alien, especially if it considers his presence in the state

opposed to its peace, order, and good government, or to its

social or material interests.”

47. That in Chae Chan Ping vs. United States 1930 U.S.

581, the United State Supreme Court held : “The power of

exclusion of foreigners being an incident of sovereignty

belonging to the Government of the United States, as a

part of those sovereign powers delegated by the

Constitution, the right to its exercise at any time when, in

the judgment of the Government, the interests of the

country require it, cannot be granted away or restrained

on behalf of any one. The powers of Government are

delegated in trust to the United States, and are incapable

of transfer to any other parties. They cannot be

abandoned or surrendered. Nor can their exercise be

hampered, when needed for the public good, by any

considerations of private interest. The exercise of these

public trusts is not the subject of barter or contract.” This

principle was reiterated in Fong Yue Ting vs. United States

149 U.S. 698, where the court ruled: - “The government of

each state has always the right to compel foreigners who

are found within its territory to go away, by having them

taken to the frontier. This right is based on the fact that,

the foreigner not making part of the nation, his individual

reception into the territory is matter of pure permission, of

simple tolerance, and creates no obligation. The exercise

of this right may be subjected, doubtless, to certain forms

by the domestic laws of each country; but the right exists

none the less, universally recognized and put in force.”

The Court further held: “The order of deportation is not a

punishment for crime. It is not a banishment, in the sense

in which that word is often applied to the expulsion of a

citizen from his country by way of punishment. It is but a

method of enforcing the return to his own country of an

alien who has not complied with the conditions upon the

performance of which the government of the nation, acting

within its constitutional authority and through the proper

departments, has determined that his continuing to reside

 here shall depend. He has not, therefore, been deprived of

life, liberty or property, without due process of law; and

the provisions of the Constitution, securing right of trial

by jury, prohibiting unreasonable searches and seizures,

and cruel unusual punishments, have no application.”

48. That in Nishimura Ekiu v. United States 142 US 652,

it was adjudged that, although Congress might, if it saw

fit, authorize the courts to investigate and ascertain the

facts upon which the alien’s right to land was made by the

statutes to depend, yet Congress might entrust the final

determination of those facts to an executive officer, and

that, if it did so, his order was due process of law and no

other tribunal, unless expressly authorized by law to do

so, was at liberty to re-examine the evidence on which he

acted, or to controvert its sufficiency. Thus according to

US Supreme Court the determination of rights of an alien

by Executive will be in compliance of due process of law.”

49. That in Louis De Raedt vs. UOI [(1991) 3 SCC 554]

the two foreign nationals engaged in missionary work had

come to India in 1937 and 1948 respectively with proper

documents like passport etc. and were continuously living

here but by the order dated 8.7.1987 their prayer for

further extension of the period of stay was rejected and

they were asked to leave the country by 31.71987. When

then challenged the order by filing a writ petition, this

 Hon’ble Court held that the power of Government to expel

foreigners is absolute and there is no provision in

Constitution fettering its discretion and government has

unrestricted right to expel a foreigner.

50. That in State of Arunachal Pradesh v. Khudi Ram

Chakma [1994 (Supp.) SCC 615], following Louis De Raedt

(supra), it was held that fundamental right of a foreigner is

confined to Article 21 and does not include the right to

reside and stay in this country. Article 19(1)(e) is

applicable to Indian citizens. It was observed that persons

who reside in the territories of countries, of which they are

not nationals, possess a special status under International

Law. States reserve right to expel them from their territory

and to refuse to grant them certain rights, which are

enjoyed by their own nationals like right to vote, hold

public office or to engage in political activities. Aliens may

be debarred from joining civil services, certain profession

or from owning properties and State may place them

under restrictions in the interest of national security or

public order. Nevertheless, once lawfully admitted to a

territory, they are entitled to certain rights necessary to

the enjoyment of ordinary life. Thus, infilterators who have

illegally crossed the border and have trespassed into

Assam or living in other parts of the country have no legal

right to remain in India and they are liable to be deported.

51. That petitioner full name: Ashwini Kumar Upadhyay,

Ph:8800278866, [email protected], PAN: AAVPU7330G,

ADHAR-659982174779. Annual Income is 2 Lakhs.

52. That petitioner has not filed any other petition either

in this Hon’ble Court or in any other High Court seeking

same and similar directions as prayed in this petition.

53. That there is no further requirement for moving

concerned government authority for relief sought in this

petition. There is no other efficacious, economic and

alternative remedy available to the petitioner except for

approaching this Hon’ble Court by way of this petition.

54. That the facts constituting cause of action accrued on

16.11.2016 and subsequent days when Minister of State

for Homes Mr. Kiren Rijiju informed the Rajyasabha that

around 20 million illegal Bangladeshi migrants are living

in India. However, Union Government has not identified,

detained and deported them till date.

55. That the fundamental right guaranteed under the

Article 21 cannot be secured to every citizen of India

without deporting the illegal migrants, particularly

Rohingyas and Bangladeshis, thus causes injury.

56. That there is no civil, criminal or revenue litigation,

involving petitioner, which has or could have legal nexus,

with the issue involved in this petition. It is totally bona-

fide with purpose of larger public and national interest.

 GROUNDS

A. Because fundamental rights of Indian citizens under

Article 21 of the Constitution needs to be addressed by the

State. Right to life mean to live with human dignity,

having a right to food, having a right to shelter, having a

right to good environment, having a right to earn

livelihood by lawful means etc. Therefore, Central and

State Government must identify & deport illegal migrants

to protect the fundamental rights of Indian citizens.

B. Because the Constitution makes it imperative for the State

to follow Directive Principles, while discharging functions

of governance. Some of the relevant Articles contained in

Part IV are the Article 38, 39 & 41. The State, in exercise

of its sovereign functions must take policy decisions

keeping the aforesaid Directives in mind so as to ensure

that first and foremost, obligations of the State towards its

citizens are discharged within available national resources

and while ensuring their safety and security.

C. Because as evident from the Constitutional guarantee

flowing from Article 19 of the Constitution, the right to

reside and settle in any part of the territory of India as

well as right to move freely throughout the territory of

India is available only to the citizens of India as evident

from Article 19(1) of the Constitution. However, this right

of Indian citizen is being violated due to illegal immigrant.

D. Because India as a sovereign nation, has the first and the

foremost constitutional duty and obligation towards its

citizens to ensure that demographic and social structure

of the country is not changed to their detriment, the

resulting socio-economic problems do not occur to the

prejudice of its citizens and most importantly resources of

the nation are utilized to fulfill the basic rights of its own

citizens and are not diverted to detriment of the citizens

due to influx of illegal immigrants into territory of India.

However, Central and State Governments are not

performing this duty due to appeasement politics.

E. Because whenever the country faces a problem of influx of

illegal immigrants, the Central Government, in exercise of

its executive functions must take policy decision

depending upon several facts, parameters, diplomatic and

other considerations, potential dangers to the nation etc.

F. Because the provisions of Convention Relating to the

Status of Refugees, 1951 and Protocol Relating to the

Status of Refugees, 1967 cannot be relied upon India

since it is not a signatory of either of them. Since India is

not a party to the said Convention, or Protocol, the

obligations contained therein are not applicable to India.

While India is a party to the International Covenant on

Civil and Political Rights, the scope of the said Covenant

does not extend to the principles of non-refoulement.

G. Because the Central Government in exercise of its power

under the Foreigner Act made the Foreigners Order, 1948.

The provisions of the Act of 1946 in general and that of

Section 3(2)(c) in particular not only empowers but casts

an obligation upon the Central Government to deport a

person who is an illegal immigrant.

H. Because the national security considerations should be

ranked the highest on country’s list of priorities given its

geopolitical influence in the region and its vulnerability to

cross border infiltrations due to the porous nature of its

borders which our country shares with many countries.

India has open / porous borders with Nepal, Bhutan,

Bangladesh, Pakistan, Myanmar etc. and has an easily

navigable sea route with Pakistan as well as Sri Lanka

making it vulnerable to a continuous threat of an influx of

illegal immigration &resultant problems arising therefrom.

I. Because India is already saddled with a very serious

problem of illegal migrants and is attempting to address

this situation in the larger interest of the nation and

keeping the national resources of the country,

requirements of India’s own population, the national

security concerns of India and several other facts in

consideration which are based upon objective facts derived

from empirical data which are in the knowledge and

contemporaneous record of the Central Government.

J. Because due to an already existing large influx of illegal

immigrants from neighbouring countries, the demographic

profile of some of the bordering states has already

undergone a serious change which is already causing the

far-reaching complications in various contexts and is

taking its toll and has a direct detrimental effect on the

fundamental human rights of country’s own citizens. So

far as the Rohingyas are concerned, they have entered into

without any valid travel document and illegally from

Bangladesh and Myanmar using porous border. The total

number of such illegal immigrants into our country would

be more than 40,000 approximately as on date.

K. Because continuance of Rohingyas’ illegal immigration

into India and their continued stay in India, apart from

being absolutely illegal, is found to be having serious

national security ramifications and has serious security

threats. Illegal influx of Rohingyas, in significant numbers,

have started into the territory of India since 2012-13 and

the Central Government has contemporaneous from

security agencies inputs and other authentic material

indicating linkages of some of the unauthorized Rohingya

immigrants with Pakistan based terror organizations and

similar organizations operating in other countries. Over

and above the said serious security concern already in

existence, more disturbing part is that there is an

 organized influx of illegal immigrants from Myanmar

through agents and touts facilitating illegal immigrants

Rohingyas via Benapole-Haridaspur & Hilli (West Bengal),

Sonamora (Tripura), Kolkata and Guwahati. This situation

is seriously harming the national security of the country.

L. Because some Rohingyas are indulging in illegal / anti

national activities i.e. mobilization of funds through

hundi/hawala channels, procuring fake /fabricated Indian

identity documents for other Rohingyas and also indulging

in human trafficking. They are also using their illegal

network for illegal entry of others in the India. Many of

them have managed to acquire fake/fraudulently obtained

Indian identity documents i.e. PAN Card and voter cards.

M. Because it is also found by the Central Government

that many of the Rohingyas figure in the suspected

sinister designs of ISI/ISIS and other extremists groups

who want to achieve their ulterior motives in India

including that of flaring up communal and sectarian

violence in sensitive areas of the country. The fragile

north-eastern corridor may become further destabilized in

case of stridency of Rohingya militancy, which the Central

Government has found to be growing, if permitted to

continue. There is also a serious potential and possibility

of eruption of violence against Buddhists, who are Indian

citizens, stay on Indian soil, by the radicalized Rohingyas.

N. Becasue Rohingyas with militant background are found to

be very active in Jammu, Delhi, Hyderabad and Mewat,

and have been identified as having a very serious and

potential threat to the internal / national security of India.

O. Because India is a country with large population, surplus

labour force, and has complex social/cultural /economical

infrastructure. Providing facilities/privileges to illegal

immigrants out of the existing national resources, apart

from above referred direct threat to national security,

would also have a direct adverse impact upon Indian

citizens as it would deprive the Indian citizens of their

legitimate share in the employment sector, subsidized

housing, medical and educational facilities and would

thereby culminate in hostility towards immigrants

resulting into an inevitable social tension and law and

order problems. The fundamental rights of Indian citizens

would, therefore, be seriously violated.

P. Because under the Foreigners Act, 1946 and in exercise of

the powers contained therein, the Central Government

and State Governments must take concrete steps to

detect and deport illegal immigrants. However, the Central

Government issued instructions regarding the procedure

to be followed for deportation, repatriation etc. of foreigner

national/illegal immigrants but did nothing seriously to

identify and deport illegal migrants.

 PRAYER

Keeping in view the above stated facts and circumstances

and the reasons stated above, it is the most respectfully

prayed that this Hon’ble Court may be pleased to issue a

writ order or direction or a writ in nature of mandamus to:

a) direct the Central and State Governments to identify,

detain and deport all the illegal immigrants & infiltrators,

including Bangladeshis and Rohingyas within one year;

b) direct the Central and State Governments to amend the

respective laws to make illegal immigration & infiltration,

a cognizable non-bailable and non-compoundable offence;

c) direct the Central and State Government to declare the

making of forged/fabricated PAN Cards, AADHAR Cards,

Passport, Ration Cards and Voter Cards and such other

documents, a non-bailable, non-compoundable and

cognizable offence and amend respective laws accordingly;

d) direct the Central and State Governments to identify the

travel agents, government employees & other such people,

who directly/indirectly provide PAN Card, AADHAR Cards,

Ration Cards, Passport and Voter Cards to illegal

immigrants and infiltrators and take stern against them;

e) take such other steps as this Hon’ble Court may deem fit

to curb illegal migration and allow the cost to petitioner.

Drawn on: 20.09.2017 (R. D. Upadhyay)

Filed on: 22.09.2017 Advocate for Petitioner

 IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO 924 OF 2017
IN THE MATTER OF:
Ashwini Kumar Upadhyay …Petitioner
Verses
Union of India & others ...Respondents
AFFIDAVIT
I Ashwini Kumar Upadhyay aged 42 years, S/o Sh. Suresh
Chandra Upadhyay, Office at 15, New Lawyers Chambers,
Supreme Court of India, New Delhi-110001, R/o G-284,
Govindpuram, Ghaziabad-201013, at present at New
Delhi, do hereby solemnly affirm and declare as under:
1. That I am the sole petitioner above named and well
acquainted with facts and circumstances of the case and
as such, I am competent to swear this affidavit.
2. That I have read and understood the contents of
accompanying synopsis and list of dates pages (B - H) and
writ petition paras (1 - 56) pages (1 - 39) and total pages
(1 - 101) which are true and correct to my personal
knowledge and belief. Annexures filed along with this
petition are true/typed copies of their respective originals.
3. That I have filed this petition as a PIL. There is no
personal gain, private motive or oblique reasons in filing
this petition. This petition is totally bona-fide with the sole
purpose of larger public interest and in interest of justice.
4. That I have no personal interest in the litigation and
neither myself nor any body in whom I am interested,
would in any manner benefit from the relief sought in the
present litigation save as a member of the General Public.
This writ petition is not guided by self-gain or gain of any
person, institution, body and there is no motive other than
the larger Public Interest and in interest of justice.
5. That I have gone through Article 32 of the Constitution
and Supreme Court Rules and do hereby affirm that the
present writ petition is in conformity thereof.
6. That I have done whatsoever enquiry/investigation, which
was in my power to do, to collect the data/material, which
was available; and which was relevant for the Court to
entertain the present petition.
7. That I have not concealed any data/material/information
in this petition; which may have enabled this Hon’ble
Court to form an opinion, whether to entertain this
petition or not and/or whether to grant any relief or not.
8. That the averments made in this affidavit are true and
correct to my personal knowledge and belief. No part of
this Affidavit is false nor has anything material been
concealed there from.

(Ashwini Kumar Upadhyay)

DEPONENT

VERIFICATION
I, the Deponent do hereby verify that the contents of
above affidavit are true and correct to my personal
knowledge and belief. No part of it is false nor has
anything material been concealed there from.
I solemnly affirm today i.e. Wednesday, the 22nd day
of September 2017 at New Delhi.

(Ashwini Kumar Upadhyay)

DEPONENT