Assam Sanmilita Mahasangha & Ors. …Petitioners


Union of India & Ors. …Respondents


In the present case, the petitioners in the various writ petitions represent an entire people – the tribal and non-tribal population of the State of Assam. In their petition, they have raised a plea that the sovereignty and integrity of India is itself at stake as a massive influx of illegal migrants from a neighboring country has affected this core Constitutional value. That, in fact, it has been held in Sonowal’s case that such an influx is “external aggression” within the meaning of Article 355 of the Constitution of India, and that the Central Government has done precious little to stem this tide thereby resulting in a violation of Article 355. As a result of this huge influx, periodic clashes have been taking place between the citizens of India and these migrants resulting into loss of life and property, sounding in a violation of Articles 21 and 29 of the Constitution of the Assamese people as a whole. Not only is there an assault on the life of the citizenry of the State of Assam but there is an assault on their way of life as well. The culture of an entire people is being eroded in such a way that they will ultimately be swamped by persons who have no right to continue to live in this country. The petitioners have also argued that this Hon’ble Court in Sonowal’s case has specifically held in para 79 thereof that Bangladeshi nationals who have illegally crossed the border and have trespassed into Assam or are living in other parts of the country have no legal right of any kind to remain in India and are liable to be deported. They have also raised a fervent plea that Article 14 also continues to be violated as Section 6A (3) to (5) are not time bound but are ongoing. Given the contentions raised specifically with regard to pleas under Articles 21 and 29, of a whole class of people, namely, the tribal and non-tribal citizens of Assam and given the fact that agitations on this core are ongoing, we do not feel that petitions of this kind can be dismissed at the threshold on the ground of delay/laches. Indeed, if we were to do so, we would be guilty of shirking our Constitutional duty to protect the lives of our own citizens and their culture. In fact, the time has come to have a relook at the doctrine of laches altogether when it comes to violations of Articles 21and 29.Tilokchand Motichand is a judgment involving property rights of individuals. Ramchandra Deodhar’s case, also of a Constitution Bench of five judges has held that the fundamental right under Article 16 cannot be wished away solely on the ‘jejune’ ground of delay. Since Tilokchand Motichand’s case was decided, there have been important strides made in the law. Property Rights have been removed from part III of the Constitution altogether by the Constitution 44th Amendment Act. The sameamendment made it clear that even during an emergency, the fundamental right under Article 21 can never be suspended, and amended Article 359 (1)to give effect to this. In Maneka Gandhi v. Union of India, (1978) 1 SCC248 decided nine years after Tilokchand Motichand, Article 21 has been given its new dimension, and pursuant to the new dimension a huge number of rights have come under the umbrella of Article 21 (for an enumeration of these rights, see Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1 at para 57). Further, in Olga Tellis & Ors. v. Bombay Municipal Corporation, (1985) 3 SCC 545, it has now been conclusively held that all fundamental rights cannot be waived (at para 29). Given these important developments in the law, the time has come for this Court to say that at least when it comes to violations of the fundamental right to life and personal liberty, delay or laches by itself without more would not be sufficient to shut the doors of the court on any petitioner….read more