SACW | 7-8 August 2005 [ Borders / Aliens / Foreigners ]

[sacw]

South Asia Citizens Wire  | 7-8 August,  2005

Following from http://www.sacw.net/borders/
[ Borders / Aliens / Foreigners ]

[i] India - Bangladesh: Unsplendid Isolation  - The fence on the Zero 
Line  (Jaideep Mazumdar)
[ii]  IMDT Act and Immigration in North-Eastern India (Walter Fernandes)
[iii]  An Unconscionable Judgement - Indian Supreme Court's recent 
judgement on the IMDT Act  (Prashant Bhushan)

______


(i)

Outlook Magazine

BETWEEN BORDERS
Unsplendid Isolation
500 villages, 1.08 lakh people fall in a no man's land because Dhaka 
disallows India a fence on the Zero Line
Jaideep Mazumdar

"Welcome to Bangladesh! Grameen Phone wishes you a pleasant stay."
This SMS flashes on your cellphone not on landing at Dhaka.
It sneaks in at Khirkidanga village, two hours by road from Siliguri. 
Technically speaking, the village is in West Bengal, India. But since 
1999, for all practical purposes, it has been cut off from the rest 
of the country. This is because this village of 19 families lies in 
the corridor between the Zero Line (actual Indo-Bangladesh border) 
and the fencing on the Indian side. It is in no man's land.

Life Of Loneliness

The border fencing is 150 metres inside Indian territory since a pact 
with Bangladesh prohibits any fencing closer than that. India now 
wants to construct the fence along the Zero Line to save villages 
like Khirkidanga from becoming isolated. But it can't do so due to 
objections from Dhaka. Says Border Security Force (BSF) Inspector 
General, North Bengal Frontier, S.
R. Tewari, "The Joint Indo-Bangladesh Guidelines for Border 
Authorities that was signed in 1975 prohibits construction of any 
structure that has defence potential within 150 metres from the Zero 
Line. Bangladesh has been saying that the border fence has defence 
potential.
Our stand is that the fence is only to stop smuggling and 
infiltration and cannot be termed as a structure that has defence 
potential. But Bangladesh doesn't agree."
And Khirkidanga is not the only village caught in this corridor of 
isolation. The barbed wire fence along the entire stretch of the 
international border has amputated 500 villages and 1.08 lakh people 
in West Bengal from the country not only physically but also 
psychologically. Raquibul Haque's plight exemplifies the predicament 
of nearly one lakh inhabitants of these villages. By rural Indian 
standards, this Khirkidanga resident is a very eligible bachelor: the 
25-year-old undergraduate belongs to a family that owns 45 bighas of 
land that provides them enough to lead a comfortable life. But 
Raquibul's parents haven't been able to find a bride for him. The 
reason: no family in the "mainland" wants to give a girl in marriage 
to someone on the "other side" of the fence. "We are called 
Bangladeshis even by our relatives. There are many unmarried boys and 
girls like my son in Khirkidanga and the surrounding villages," rues 
Raquibul's father Shafiqul.

For people like these trapped between the border and the fence, it is 
like living in a prison. Outlook visited six of these 
villages-Khirkidanga, Antupara, Sipahipara, Bangalpara, Khudipara and 
Hindupara-to see for itself the plight of its people. The 700-odd 
residents of these villages can cross over to the mainland (or India, 
as they say now) through a gate that's manned round-the-clock by the 
BSF. The gates are opened three times a day: 6 am to 7 am, 10 am to 
11 am and 4 pm to 5 pm. "Once the gates are shut, we are cut off from 
India and are at the mercy of Bangladesh. Very rarely does the BSF 
patrol our villages. We feel totally alienated. We are like stateless 
people without any identity," points out a despondent Dharma Deb Roy, 
a Hindupara denizen.
Not just that, the daily routine of entering their names in a 
register, subjecting themselves to frisking, laying out whatever they 
are carrying for inspection and having to account for everything they 
carry across the fence is something the villagers find humiliating 
and annoying. Some even see it as harassment. "We are citizens of 
India and nowhere else will you find people having to account for 
their movements or being subjected to inspection and strict vigil 
like us. Is it our fault that our villages are located here? Even if 
we purchase an extra kilo of rice or sugar for a special occasion, we 
have to provide an explanation. All of us have been detained for long 
hours at the gate, interrogated and our credentials and identity 
verified.

  Why should we face all this? We haven't committed any crime," says 
Shahamat Ali, a resident of Antupara that lies next to Khirkidanga.
To him and others, the BSF seems suspicious of them and even comes 
into their houses to inspect their belongings. If any villager is 
seen to even remotely defy a BSF jawan, he is beaten up. "My 
12-year-old son, who studies in Class 7, was beaten black and blue by 
a BSF jawan a few days ago since he didn't dismount from the cycle 
while crossing the gate on his way to school," says a villager.
Many of the villages are emptying out. Hindupara once was home to 30 
families, but only seven live there now. Those who could find buyers 
have sold their houses and lands, and left. The exodus will continue. 
Says Samir Roy of Hindupara, "I'm also saving money and plan to 
leave. It has become impossible to live here ever since the fence 
came up a few years ago. Our relatives have to provide an explanation 
to the BSF when they come to visit us. It's all very insulting. Life 
has become hellish."
West Bengal chief minister Buddhadeb Bhattacharya has been urging the 
Centre to make Bangladesh see reason. "I've taken up this issue with 
the prime minister, the external affairs minister and the home 
minister a number of times. Negotiations are on with Bangladesh. The 
fence is necessary, but it is also cutting off villages and families. 
The only way out is to construct the fence along the Zero Line. Let's 
see if Bangladesh agrees," says Buddhadeb.

Many, like state agriculture minister Kamal Guha, feel that if 
Bangladesh doesn't accept India's position, it should go ahead and 
construct the fence along the Zero Line anyway. Says Guha, "Lakhs of 
people who stay on either side of the fence have to cross it every 
day through gates manned by the BSF. The BSF opens these gates three 
times a day and this creates a lot of problems. Free movement is 
restricted. Aren't these people Indians, and doesn't our Constitution 
guarantee freedom of movement? Why should these poor and innocent 
people have to face harassment and even physical abuse at the hands 
of the BSF?"
The BSF denies the harassment charge. According to IG Tewari, his men 
do maintain a record of the people who cross the gate. He also admits 
that the villagers are frisked and any parcel or bag they carry is 
searched. But this, he maintains, is not harassment. "Our mandate is 
to check infiltration and smuggling. If we don't maintain vigil at 
the gates along the fence, the very purpose of constructing it would 
be defeated," he says.
But it's not as harmless as the BSF IG makes it out to be. Ask 
Maqbool Islam of Bangalpara. He was detained at the gate for three 
hours a few weeks ago by BSF jawans and was released only after the 
village elders reached the spot and certified that he was a resident. 
Complains Islam: "We have to seek permission from the BSF when we 
sell our produce in the markets on the other side (of the fence). On 
our way back from the markets, we have to account for everything we 
have bought, be it cattle, poultry, salt or soap." Islam believes the 
BSF views the villagers with suspicion and takes them to be smugglers.
The BSF admits to this scrutiny, but has its own perspective on the 
situation. Its officers point out that they have to ensure that 
people who cross the gates to come over to this side are Indians. It 
is not possible, they say, for a jawan to recognise the residents of 
the villages by face. "We never beat up anyone. We just question them 
if we're suspicious of their movements. We also have to check 
smuggling, and in order to do that, we have to maintain a record of 
everything that a person is carrying while crossing the gate," says 
B.S. Negi, commander of the A company of the BSF's 33 Battalion. He 
alleges that most of the villagers are involved in small-scale 
smuggling; essentials like sugar, grain and cooking oil fetch a 
premium in Bangladesh. So, if a villager takes extra rations, the BSF 
has reason to get suspicious.
On its part, the BSF has been requesting the state government to 
issue identity cards to the residents of the border villages. Senior 
officers point out that this will make things easier both for the BSF 
as well as the villagers. The state government says that the process 
of issuing ID cards has begun. But government action is invariably 
time-consuming. The BSF would also like the villages on the other 
side of the fence to be relocated. But land is not always available 
at close proximity. The only solution, then, is to construct the 
fence along the Zero Line.
Bangladesh is not likely to agree to that. The fate of lakhs of 
Indian villagers, then, lies solely in Dhaka's hands. Calcutta or New 
Delhi can do very little but pressure the Bangladeshi government. So 
far, they haven't been successful.


o o o o


(ii)

The Economic and Political Weekly
July 23, 2005

IMDT ACT AND IMMIGRATION IN NORTH-EASTERN INDIA

The Supreme Court's verdict on the Illegal Migrants (Determination by 
Tribunals) Act, 1983 as unconstitutional has closed one chapter of a 
long saga, but it will not bring to an end the issue of 'illegal 
immigrants'. The court judgment has actually polarised Assam as much 
as the act had done for two decades.
by Walter Fernandes

The Supreme Court judgment (July 12, 2005) on the public interest 
litigation filed by a student leader-turned-AGP MP, Sarbananda 
Sonowal, struck down the Illegal Migrants (Determination by 
Tribunals) Act, 1983 (IMDT Act) as unconstitutional. That closed the 
chapter of a long saga, but did not bring it to an end. The reaction 
to the verdict was on predictable lines. There was gloom in the 
Congress circles and joy in the BJP, which claimed that it always 
wanted to repeal the act. The All Assam Students' Union (AASU) 
rejoiced at the verdict, but some of its leaders cautioned against 
the possible victimisation of the minorities. The Muslims feared 
reprisals and two of their bodies called for a bandh against it. Thus 
the verdict polarised Assam as much as the act had done for two 
decades. It may continue till the assembly elections due next year.

Background of the Act

The IMDT act was enacted in 1983 in response to the Assam movement of 
1979-85 that began when the electoral rolls were being revised. Amid 
allegations that a large number of Bangladeshi Muslim immigrants were 
being included in the rolls, the Election Commission asked the Assam 
government to identify constituencies with a big rise in the number 
of voters, but the state allegedly dragged its feet on the issue. 
Some state that the electorate had grown by 10.2 per cent between 
1970 and 1971, 10.42 per cent between 1971 and 1977 and by a further 
10.3 per cent during the following year [Bhattacharya 2001: 90].

The main demand of the Assam movement was detection and expulsion of 
foreigners in the state. Its focus was on the Bangladeshis though 
according to some estimates they were only around 40 per cent of the 
immigrants, the rest being from the Hindi-speaking region or of 
Nepali origin. It began as a secular movement of all the Assamese, 
but always ran the risk of turning communal because of the religious 
slant given to it since most Bangladeshi immigrants were Muslims. The 
Nellie massacre of more than 300 Bangladeshis in 1983 did give it a 
communal angle. A VHP leader even said that Bangladeshi infiltration 
was a Pakistani conspiracy to turn Assam into a Muslim state and that 
they "are supporting all kinds of terrorist activity" (Staff 
Reporter, Assam Tribune, December 23, 2001). However, now most of the 
AASU leaders have appealed to the people not to communalise this 
issue (The Assam Tribune, July 15, 2005) and even told the BJP 
recently that they would not tolerate such a communal slant.

The act applies only to Assam. The rest of India has the Foreigners' 
Act 1946 which puts the onus on the accused to prove his/her Indian 
nationality. The IMDT defines foreigners as those who settled down in 
Assam after March 25, 1971 and puts the onus on the one who denounces 
a person of proving that he/she is a foreigner. Because of this 
stipulation many consider the latter ineffective [Bhattacharyya 2001: 
154-55]. The experience of the past 22 years has proved them right. 
Five tribunals set up under this act in the districts bordering 
Bangladesh from January 1983 registered 423,021 cases, dealt with 
65,000 cases and have disposed of 23,420 cases (Editorial, The 
Sentinel, December 16, 2004) and have till January 2005 declared 
12,424 persons illegal migrants. Only 1,538 of them have been 
deported [Staff Reporter, The Sentinel, July 13, 2005].

The political parties claim credit for the judgment that some AASU 
leaders called a "success of the indigenous people of the north-east" 
(The Sentinel, July 13, 2005) but in practice, the change of 
governments has made no difference to the issue. For example, the 
Asom Gana Parishad (AGP) that was born out of the Assam movement, has 
been in power twice during the past 20 years. During its first term, 
1987-90, 2,477 illegal migrants were identified and 782 of them were 
deported. And in the second term, 1996-2000, 902 persons were 
identified and 179 deported [Staff Reporter, The Sentinel, July 13, 
2005]. Little wonder then that the chairman of the north-eastern 
students' organisation "lambasted" the ruling Congress "as well as 
the opposition AGP and BJP for the failure to protect the rights of 
the indigenous people" (The Sentinel, July 13, 2005).

An immediate effect of the judgment is that it has deprived the state 
parties of a major issue on which they have fought the elections for 
two decades. The Congress has been accused of using the Bangladeshi 
immigrants as a vote bank, while the AGP and BJP have allegedly used 
it as an emotional issue but have not repealed the act and have not 
taken its implementation seriously [Dutta-Choudhury 2005]. The small 
number of immigrants expelled during the AGP regime is one of its 
examples. The failure of the BJP to get this central act repealed 
during its years in power at the centre is another case of not going 
beyond promises.

Immigration and the Communal Issue

Because of the communal bias given to it, many fear discrimination 
against the Muslims. In fact, chief minister Tarun Gogoi claims that 
this fear was the main reason for enacting the IMDT. One of the 
clauses of the Assam Accord 1985 was that the National Register of 
Citizens (NRC) 1951 would be updated to include all the Assam 
inhabitants and their descendants on or before March 25, 1971, but no 
government has done so until now. Identity cards were promised but 
have been issued in only one circle in Karimganj district. AASU has 
been demanding the issue of the ID cards after completing the NRC 
(Editorial, The Sentinel, March 23, 2005). The Muslims fear 
harassment in the absence of NRC and ID cards and the communal 
atmosphere some parties create. Those born and brought up in 
India may not be able to prove their nationality in the absence of 
birth and death registration. According to some news items many of 
the alleged Bangladeshis deported from Mumbai during the Shiv Sena 
regime in Maharashtra were Hindi-speaking Biharis and who spoke no 
Bengali. They fear that the same will happen in Assam also.

The communal bias is also a reason for confusion on their numbers. 
Some speak of 12 lakh Bangladeshis in Assam [Bhuyan 2002]. According 
to the census, the proportion of Muslims in Assam rose from 24.03 per 
cent in 1971 [Saikia 1976: 97] to 30.02 per cent in 2001. The number 
of Muslim majority districts in Assam has risen from four in 1991 to 
six in 2001 [taken from Census CDs, 2001]. The difference between 
24.03 per cent and 30.92 per cent gives an additional Muslim 
population of 18 lakhs in Assam's 2001 total of 266 million. Not all 
of them are immigrants since the Muslim population growth rate is 
relatively high because of low female literacy. That gives us around 
15 lakh Bangladeshis in Assam where the total number of immigrants is 
estimated to be 30 to 40 lakh - about 40 per cent of them are 
Bangladeshis and the rest are from the Hindi speaking region or 
Nepali. The census figures also counter the stand of those who deny 
the very existence of Bangladeshis in the region and of those who put 
their number at more than 40 lakh [Bhattacharyya 2001: 120-121].

The numbers game is an example of changing figures to suit ideology. 
L K Advani stated in the Lok Sabha in 2003 that India had 1.5 crore 
Bangladeshi immigrants, 50 lakh of them in Assam and 57 lakh in West 
Bengal. In December 2004 the UPA minister of state for home affairs 
Jaiswal repeated this figure in the Lok Sabha, but a few days later 
Manik Rao, the other minister of state said in the Rajya Sabha that 
the figure was taken from the previous government and that Assam had 
only 80,886 Bangladeshis ('Trouble with Numbers', Editorial, The 
Sentinel, December 18, 2004). This figure was promptly rejected by 
the opposition. The report in The Times of India, July 13, 2005 on 
the repeal of the IMDT act began with "Uncertainty haunts the 1.5 
crore illegal migrants from Bangladesh" thus giving an impression 
that all of them came under the repealed act which applies only to 
Assam.

Facts about Immigration

Most ignore the crucial fact of a majority of the immigrants in the 
region being Hindus from the Gangetic plains. When mentioned it is 
given a communal colour. For example, during the Assamese-Bihari 
conflict of November 2003 a VHP leader is reported to have said that 
it was an ISI conspiracy to drive away Hindus and turn Assam into a 
Muslim majority state. However, the census shows that the immigrants 
of Bangladeshi origin as well as those from the Hindi heartland live 
in all the north-eastern states. For example, in 1981 5.68 per cent 
of the Arunachal population was of foreign origin (including the 
Chakma) and 14.13 per cent were immigrants from other Indian states 
outside the north-east. In Assam their proportion was 6.68 per cent 
and 3.61 per cent, in Meghalaya 3.3 per cent and 5.93 per cent and in 
Nagaland 1.6 per cent and 8.92 per cent, respectively. Only in 
Tripura the immigrants of foreign (mostly Hindu Bangladeshi) were 
22.67 per cent of the population and those from the rest of India 
were 1.66 per cent [D'Souza 1999: 7].

We give the 1981 figures though no census was conducted in Assam 
because of the emotions generated by the Assam movement. The figures 
were extrapolated from the 1991 census. The census figures show that 
immigration continued after 1981. Also the sex ratio of some states 
confirms it. For example, the studies show that the sex ratio of the 
indigenous population of Arunachal Pradesh is higher than the 
national average, but it is much lower when these states are taken as 
whole. For example, in our 2001 study the sex ratio was 955 among the 
Angami of Nagaland and 1,095 among the Aka of Arunachal Pradesh 
[Fernandes and Barbora 2002a: 76-78]. However, in 1991 it was 890 in 
Nagaland as a whole and 861 in Arunachal Pradesh and rose marginally 
in 2001 to 909 and 901, respectively [2001 census]. The reason for 
their low overall sex ratio is single male migration. The slight rise 
in 2001 is probably because of the lower influx in the 1990s.

Also the above average decennial population growth in these states 
confirms immigration. For example, the Nagaland population rose by 
39.88 per cent in the 1960s, 50.05 per cent in the 1970s, 56.08 per 
cent in the 1980s [D'Souza 1999: 16] and 40.08 per cent in 1991-2001 
[2001 Census CDs], obviously because of immigration, not natural 
growth. Also data on religion confirm it. For example, the tribal 
population of Arunachal Pradesh declined from 90 per cent in 1951 to 
64 per cent in 2001. They belong mainly to the Dony Polo or tribal 
religion, but 37.64 per cent of the population was Hindu in 1991. It 
more or less coincides with the non-tribal proportion which is 36 per 
cent. As stated above, the 2001 Census shows a substantial rise in 
the proportion of Muslim majority districts in Assam. Because of 
Hindu Bangladeshis entering Tripura, its tribal proportion has 
declined from 58 per cent in 1951 [Sen 1993: 22] to 30 per cent in 
2001 [Census 2001 CDs].

Immigration as an Economic Issue

Though it is given a communal bias, immigration as well as the Assam 
movement are primarily economic issues. In the 1970s persons from 
outside the region controlling its economy neglected productive 
investment in Assam. Consequently, unemployment was high. For 
example, the refinery for oil produced in Assam was shifted to 
Barauni in Bihar. Though it grows jute, Assam does not have a jute 
mill. Besides, most industrial jobs went to outsiders. For example, 
in the 1960s only 27 per cent of the employees in the industries in 
Assam were locals [Chattopadhyay 1990: 101]. To it should be added 
the identity search of the Assamese after Nagaland and Meghalaya were 
formed by separating some of its districts. The Mizo struggle was 
continuing in the 1970s. These states were formed because the tribes 
inhabiting the districts felt that the Assamese majority was 
submerging their identity. The Assamese found themselves on the 
defensive both against the tribes and the outsiders controlling their 
economy.

The fear of the immigrants has to be seen within this overall context 
of economic neglect, threat to their identity and fear of being 
outnumbered by outsiders. To it should be added the fear of losing 
land to the immigrants, not all of them Bangladeshi. Most outsiders 
killed in the Karbi Anglong district of Assam are Biharis. A recent 
study showed that many Biharis have 'pattas' at Lanka in Nagaon 
district, but their land is in the Karbi Anglong district which comes 
under the Sixth Schedule of the Constitution that bans tribal land 
alienation to non-tribals [Fernandes and Barbora 2002b: 64-65].

This fear continues even today as one can see from a bill in the 
state assembly banning land ownership in Assam by persons from 
outside the state introduced on March 15 by the independent MLAs. It 
was rejected (The Assam Tribune, March 9, 2005). There is also the 
fear of losing jobs. There are also indications that before the Assam 
movement most Bangladeshis were brought into the state by big 
landlords who wanted cheap labour. Some of them were given land as 
tenants but lost it because of the Land Reforms Act [Kar 1980].

A reason why the north-east continued to welcome immigrants is its 
more than a millennium-long history of immigration of different 
nomadic tribes from south-east, south and inner Asia. Each tribe that 
entered the region created its own history and myths of origin, 
developed an identity and settled down in the region as its 
inhabitants, not as colonisers ruling the region on behalf of another 
country as the British rulers did. For example, the Meitei of Manipur 
claim their origin from the Vedic times, so do some groups of Assam 
[Barua 1985: 8-10]. The Ahom who ruled most parts of Assam before the 
British army defeated them came from the Shan region and assimilated 
the local culture. Besides, in pre-colonial times, migration rarely 
resulted in conflicts for resources because land was abundant [Bose 
1989: 38-39].

The pattern of migration changed with the British colonialists 
acquiring de jure control over the north-east with the Anglo-Burmese 
Yandabu Treaty of 1826. Colonialism changed the history of the region 
and also established some commonality in its economy by changing it 
to suit the needs of the British industrial revolution. In the 
north-east an emphasis was placed on extractive enterprises like tea 
and oil for which much land was acquired, resulting in the 
displacement and emigration of large numbers. That is the basis of 
the beginning of the fear of the immigrants and of the ethnic 
conflicts that dominate the north-east even today [Acharya 1990: 
75-78].

Immigration came to be linked to the tea industry which was built on 
indentured labour from Jharkhand, Chattisgarh and other regions where 
the Permanent Settlement 1793 and the zamindari system had displaced 
people on a large scale [Guha 1977: 17-18]. Unlike the nomadic tribes 
that settled down in the north-east as its inhabitants, the tea 
garden management kept their workers isolated from the local people 
within a regimented work structure. As a result, they were unable to 
integrate themselves with their surroundings and the local 
communities continue to treat them as outsiders [Fernandes, Barbora 
and Bharali 2003: 5-6].

In the 1920s began the immigration into western Assam from East 
Bengal (present-day Bangladesh) as a deliberate British policy to 
settle people in what they called wastelands that the Boro tribe 
considered its livelihood [Bose 1989: 62-64]. Similarly, when there 
was an excess labour, some tea garden managers encouraged them to cut 
the forests in the neighbourhood, create 'bastis' and settle down in 
what they called unoccupied land that the communities like the Boro 
considered their livelihood [Kar 1999: 27-28]. The type of migrants 
changed again with Partition which forced a large number of Hindus to 
flee erstwhile East Pakistan and come to the north-east and many 
Muslims from the region to go to East Pakistan [Nag 2002: 32-25].

Changes after 1947

The post-1947 influx from the Hindi-speaking region and Bangladesh 
introduced three changes in the type of immigrants. Firstly, prior to 
1947 most of them were Muslims. Today most of those coming to Tripura 
from Bangladesh and other states from the Hindi heartland are Hindus. 
Secondly, until 1947 only Assam and Tripura attracted immigrants from 
outside the north-east. Today most states in the region experience 
such inflows. Thirdly, unlike in the colonial age when the state 
encouraged migration as cultivators of wasteland or as indentured 
labour, the Partition refugees were forced migrants and the post-1947 
immigrants come without overt state support.

Common with the 19th and 20th centuries are the push factors of 
poverty, landlessness, the feudal system and lack of land reforms in 
their area of origin [Majumdar 2002: 107-108]. The pull factor is the 
fertile land in the north-east and the legal system that allows them 
to encroach on the land. Much of the land in the tribal areas of the 
region is community owned according to tribal customary law, but 
Indian land laws recognise only individual ownership. This 
disjunction between the systems makes it easy for the immigrants to 
encroach on and cultivate common land. Besides, most immigrants were 
agricultural labourers in their area of origin, as such familiar with 
cultivation techniques. They prosper by using these techniques on the 
land they occupy.

Whatever the type of immigrants, for over a century they have 
encroached on the land of the local communities. These communities 
resist the alienation of their livelihood, but the country treats 
their resistance as insurgency and a law and order issue. The 
consequent land shortage has resulted in ethnic conflicts between 
various tribes of the north-east and has added to the threat of land 
and job loss. Be it the Naga-Kuki conflict in Manipur [Fernandes and 
Bharali 2002: 52-55], the Bodo-Santhal [Roy 1995] and Dimasa-Hmar 
tension in Assam (The Telegraph, April 23, 2003) or the Tripura 
tribal demand for a homeland [Bhaumik 2003], all have their origin in 
competition for land and result in massacres. Other conflicts like 
the one between the Assamese and Bihari have been for jobs [Fernandes 
2003].

Another pull factor is the local need for cheap labour and services 
that the immigrants provide as barbers, shoe-makers and as unskilled 
manual workers. Construction and other contractors seem to have 
developed a vested interest in their cheap labour. For example, 
according to a news item, the main bidders for the Bogibeel bridge 
contract in upper Assam were two organisations formed by former AASU 
leaders who were in the forefront of the agitation against the 
immigrants. However, neither organisation was ready to give an 
undertaking that it would employ only Assamese workers, because the 
immigrants were ready to work for very low wages (The Assam Tribune 
October 22, 2002). According to another report (The Sentinel, January 
23, 2005) brick kiln owners at Mariani in Assam do not cooperate with 
the officials who are trying to identify Bangladeshi labourers 
working under them.

Landowners also search for Bangladeshi labour as cultivators. For 
example, a result of the Assam movement is the thrust given to 
education and jobs in the administration. Those who are employed in 
the administration continue to own land, but do not want to cultivate 
it. So they employ immigrants, particularly of Bangladeshi origin, to 
cultivate it or give it out to them on a share cropper basis for one 
year at a time, not beyond it, for fear of losing it under the Land 
Reforms Act [Fernandes and Barbora 2002b: 52-54]. We have seen the 
Angami of Nagaland 'adopting' Nepali workers to cultivate land of 
those who have jobs in the town. We were told that in the Phek 
district of Nagaland the educated people who do not want to work on 
their land 'adopt' Bangladeshis to cultivate it. Thus, the local 
people are ambiguous towards the immigrants. On the one hand, they 
oppose them as encroachers on their land and jobs and, on the other, 
their low wages have become a vested interest with the contractors 
and agriculturists.

Conclusion

Will the repeal of the IMDT act solve this problem? That ambiguity 
will probably continue because very few local people want to do the 
tasks that the immigrants perform. As a result, the demands for 
sending the immigrants away will continue, but very little will be 
done. Political parties will find new ways of using them as vote 
banks or of rousing communal feelings around them. The fear of losing 
jobs will continue to be used to get the cooperation of the student 
body. However, a solution can be found only when student bodies come 
together to demand another type of development that creates jobs and 
motivates them to go back to their land in order to cultivate it in 
another form. The local communities have to stand up to the vested 
interest of builders and contractors in cheap labour. If enough jobs 
are created and the youth is trained to take up new jobs, they may 
not even need to fight against the immigrants because there may be 
enough for all to share. That requires a move away from a communal to 
an economic and cultural approach to immigration.


References

Acharya, S K (1990) 'Ethnic Processes in North-Eastern India' in D 
Pakem (ed), Nationality, Ethnicity and Cultural Identity in 
North-East India, Omsons Publications, New Delhi, pp 69-108.
Bhattacharyya, Hiranya Kumar (2001): The Silent Invasion: Assam 
versus Infiltration, Spectrum Publications, Guwahati and Delhi.
Bhaumick, Subir (2003): 'Tripura's Gumti Dam Must Go', The Ecologist 
Asia 11 (n 1, January-March), pp 84-89.
Bose, M L (1989): Social History of Assam, Concept Publishers, New Delhi.
Chattopadhya, Dilip Kumar (1990): History of the Assamese Movement 
since 1947, Minerva, Calcutta.
D'Souza, Alphonsus (1999): North East India, Kohima Jesuit Region 
(Mimeo), Jakhama.
Dutta Choudhury, R (2005): 'New Chapter in State Politics', The Assam 
Tribune, July 13.
Fernandes, Walter (2003): 'Why Is Assam Burning?' The Hindu, December 8.
Fernandes, Walter and Sanjay Barbora (2002b): 'The Socio-Economic 
Situation of Nagaon District: A Study of Its Economy, Demography and 
Immigration', North-Eastern Social Research Centre, Guwahati (mimeo).
Fernandes, Walter, Sanjay Barbora and Gita Bharali (2003): Primary 
Education of Plantation Labourers in Assam, North-Eastern Social 
Research Centre, Guwahati (mimeo).
Fernandes, Walter and Gita Bharali (2002): The Socio-Economic 
Situation of Some Tribes of Bishnupur and Palizi, North Eastern 
Social Research Centre, Guwahati (mimeo).
Guha, Amalendu (1977): Planter Raj to Swaraj: Freedom Struggle and 
Electoral Politics in Assam 1826-1947, People's Publishing House, New 
Delhi.
Kar, M (1980): 'Wasteland Settlement and Policy in Assam', Social 
Action 30, (n 3, July-Sept), pp 301-15.
Kar, R K: 'A Panoramic View of the Tea and Ex-Tea Tribes of Assam' in 
Thomas Pullopillil (ed), Identity of Adivasis in Assam, Indian 
Publishers Distributors, Delhi, pp 21-46.
Majumdar, Anindiyo J (2002): 'Human Movement and the Nation State: 
Dimensions of an Indian Crisis in its North-Eastern Region' in Joshua 
Thomas (ed), Dimensions of Displaced People in North-East India, 
Regency Publications, New Delhi, pp 91-111.
Nag, Sajal (2002): 'Whose Nation Is It Anyway: Nation Building and 
Displacement in Indian Sub-Continent' in C Joshua Thomas (ed), op 
cit, pp 26-49.
Roy, Ajay (1995): The Boro Imbroglio, Spectrum Publishers, Guwahati.
Saikia, A K (1876): A Portrait of Population: Assam, Directorate of 
Census Operations, Guwahati.
Sen, Sipra (1993): The Tribes of Tripura: Description, Ethnology and 
Bibliography, Gian Publishers, New Delhi.
Staff Reporter (2001): 'VHP Vows to Launch Stir to Ward off 
Bangladeshis', The Assam Tribune, December 23.
- (2005): 'What Has the Act Done?', The Sentinel, July 13.


o o o o


(iii)


Outlook
August 03, 2005

OPINION
AN UNCONSCIONABLE JUDGEMENT
The SC's recent judgement on the IMDT Act betrays such an ignorance 
of basic legal principles and lack of sensitivity to human rights 
values, besides using a fantastic interpretation of the Constitution, 
that it could have extremely far reaching implications on the 
citizenship and external policy of the country
Prashant Bhushan

The problem of illegal migrants into India, particularly from 
Bangladesh has been a longstanding and vexed political and legal 
problem, particularly since 1971 when there was a large scale influx 
of Bangladeshi refugees into India. However, a large number of 
Bangladeshis continued to enter India even after 1971 in search of 
jobs, through a long a porous border. While some of them went to West 
Bengal, some to other parts of the country, a large number of them 
settled in Assam, leading to a series of agitations by the All Assam 
Students Union.

Prior to 1983, the detection and eviction of these foreigners was 
done under the Foreigners Act 1940. This Act gave virtually unbridled 
powers to the authorities under the Act, mainly the police, to 
designate any person as a foreigner and detain and deport him. Anyone 
disputing his designation as a foreigner had no recourse under the 
Act to a judicial body. Though the Foreigner's Tribunal's order 1964 
framed under the Act did give the discretion to the government to 
refer any dispute to tribunals constituted for this purpose, the 
government did not constitute any such tribunals in any part of the 
country outside Assam. Moreover, in this colonial legislation (the 
Foreigners Act), if you were alleged to be a foreigner by the 
authorities, the burden of proving that you were not a foreigner was 
on you. This was an impossible burden to discharge for most people in 
the country, who had no birth certificates and no land holdings. The 
result was that most people were completely at the mercy of the 
police, who in many places were abusing their powers under the Act to 
extort money from poor and defenceless people.

Taking note of these problems, in 1983, Parliament enacted the 
Illegal Migrants (Determination by Tribunals) Act, (IMDT Act) which 
as the title suggests provided for judicial tribunals to determine 
disputes about citizenship which might arise under the Foreigners 
Act. The rules under the Act also provide for an administrative 
screening committee which would examine the complaints under the Act 
and reject complaints found to be frivolous. The Act, also for the 
first time, gave a limited right to any person to lodge a private 
complaint with the Tribunals under this Act against persons regarding 
whom they had information of their being foreigners. Such a right did 
not exist under the Foreigners Act. The right was however limited by 
providing that such a complaint could only be made against a persons 
residing within the same local area, and that persons could make a 
maximum of ten such complaints.

Though the Act itself was for the entire country, it was initially 
made applicable only to Assam and was to be made applicable to other 
parts of the country whenever the government notified it for those 
parts. The government's statistics showed that in the 20 years of the 
operation of the IMDT Act, about 80% of the complaints were rejected 
by the screening committee itself . Out of the remaining 76,228 cases 
referred to the Tribunals during these years, only 21,169 were 
disposed off by the Tribunal till 2003. Out of these, 11,636 persons 
were declared as illegal migrants, but only 1517 could be physically 
expelled.

When the AGP government (supported by the BJP) was in power in Assam, 
it felt that the IMDT Act was coming in the way of expelling the 
foreigners that they wanted to expel. They began demanding that the 
centre repeal the Act and thus give a free hand to the government and 
the police to expel anyone that they wanted under the Foreigners Act, 
without any judicial determination of the rights of those that were 
sought to be expelled.

Soon after the BJP government came of power at the centre in 1998, it 
began to resonate the demand of the AGP and the AASU. As part of this 
campaign, the BJP-appointed Governor of Assam, Gen S.K. Sinha, sent a 
shrill report to the government in November 1998, which ended thus, 
"The silent and invidious demographic invasion of Assam may result in 
the loss of the geo-strategically vital districts of lower Assam. 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 international Islamic terrorism may provide the driving force for 
this demand."

However, it seems that it was not possible for the BJP to convince 
its coalition partners about the need to repeal the IMDT Act. In 
2000, a former president of the AASU, Sarbananda Sonowal, filed a 
writ petition in the Supreme Court seeking a declaration that the 
IMDT Act was unconstitutional. He argued that the Act impeded the 
expulsion of foreigners from Assam, as was evident from the figures 
of foreigners expelled using the IMDT Act. It thus violated the right 
of the Assamese people to preserve their culture. The impediments 
against expulsion, he argued, were placed primarily by the reversal 
of the burden of proof from the Foreigners Act. Also, he pleaded that 
the restrictions placed on the complainant (about filing a maximum of 
10 complaints and that too against persons residing only in his local 
area) contributed to the problem. It was finally contended that the 
application of the IMDT Act to Assam alone was discriminatory since 
in other states, the authorities could resort to the Foreigners Act 
and throw out anyone that they wanted, without allowing recourse to a 
judicial Tribunal.

Meanwhile, during the pendency of this case, the police in Delhi were 
abusing their powers under the Foreigners Act and were engaged in a 
regular racket of extorting money from poor Bengali Muslims living in 
slums. The modus operandi has been detailed in an investigative 
report produced by a very eminent group of citizens calling 
themselves the "Citizen's campaign for preserving democracy". Its 
members included such experienced and eminent persons such as former 
Chief Justice of Delhi High Court, Justice Sachar, former President 
of the PUCL, and perhaps the country's most eminent social scientist, 
Professor Rajni Kothari, and many other such eminent persons.

The report indicated how the local police arbitrarily pick up poor 
Bengali muslims living in slums under the Foreigners Act who are then 
detained in inhuman conditions at a Municipal Corporation detention 
centre where they are kept till there is a train bogie load of them. 
They are then taken to the Bangladesh border, dispossessed of 
whatever possessions they have, and asked to run across. In the words 
of the report: 

"When the people are forced across the border, all their possessions 
are taken away, along with any signs that may point to their Indian 
origin. ...  They are warned that if they turn back, they will be 
shot as infiltrators. As parting advice, they are also cautioned to 
tell the Bangladeshi Rifles, if they are caught across the border, 
that they are returning from some work or wedding from a particular 
village. Thus poor people, deliberately bereft of identity and 
citizenship, have no option but to again take the path of illegality 
merely in order to survive."

In 2001, Abu Hanif, a poor Bengali Muslim who was detained by the 
police, by branding him a Bangladeshi who had come from Bangladesh 
six months previously, filed a petition in the Supreme Court, seeking 
the application of the IMDT Act to Delhi. He pointed out that he had 
an Indian passport for the last 15 years and had been registered as a 
voter in Delhi for the last 15 years. He had all the other documents 
to prove his citizenship, including ration cards, jhuggi cards etc.

Yet, the police claimed that he had come from Bashirhat in Bangladesh 
only 6 months ago (It is perhaps just a matter of detail that 
Bashirhat is actually in West Bengal, and not in Bangladesh!) He 
therefore asked for the constitution of a Tribunal under the IMDT Act 
to determine his claim and that he not be left at the mercy of police 
officers who had even earlier tried to extort money from him.


Though Abu Hanif's petition, as also a petition by 
Jamait-e-ulema-e-Hind (which was also seeking extension of the IMDT 
Act to Delhi) was ordered to be heard along with Sonaval's petition, 
when the time came for them to be heard, the court decided to first 
hear arguments only on Sonaval's petition, saying that the other 
petitions would be heard only after Sonaval's petition was decided. 
However, on a persistent plea by Abu Hanif's lawyer, Mr. Shanti 
Bhushan, that the decision in Sonaval's case would affect his case, 
the court gave a brief hearing to him.

On 12th July, a three judge bench of the court allowed Sonaval's 
petition and declared the IMDT Act and the Rules framed under it 
unconstitutional and void. It had been pointed out to the court that 
an Act of Parliament cannot be declared void merely because it had 
not succeeded in its objective. It could only be struck down if 
Parliament lacked legislative competence to enact it, or if it 
violated a specific provision of the Constitution. 

Being conscious of this limitation, the judgement written by Justice 
G.P. Mathur, comes up with a brilliant idea. It opines that the Act 
violates Art 355 of the Constitution, which mandates the central 
government to protect the states against external aggression and 
internal disturbance! It goes on to say that the onerous provisions 
of the Act and Rules make it virtually impossible to expel foreigners 
and therefore the Act encourages infiltration of illegal migrants 
from Bangladesh, which amounts to external aggression against India! 

Certainly an inspired, original and breathtakingly audacious 
interpretation of Article 355 of the Constitution. But then, it has 
been bluntly stated by a legendary American judge, that the view that 
judges do not make the law, is a fairy tale. And nowadays we do not 
believe in fairy tales.

While giving this interpretation to Article 355 of the Constitution, 
I wonder whether the Honourable judges were aware of the implications 
of what they were saying. For example, India has a treaty with Nepal 
which permits Nepali citizens to come and freely stay in India, 
without visa and Indian citizens can do the same in Nepal. Will this 
treaty not be similarly unconstitutional on the principle that it 
encourages Nepali migration to India and thus promotes external 
aggression by Nepal?

Or suppose that Parliament were to amend the Citizenship Act to 
provide that persons from any territory which was part of undivided 
India would be given Indian citizenship, if they applied. Would such 
an amendment also be unconstitutional on the same ground? If so, what 
of the existing provision which gives automatic citizenship to those 
who were born in undivided India? Mr. Advani and many others who were 
from Pakistan are citizens of India only by virtue of that existing 
provision. That would also be unconstitutional on the logic given. 

Clearly, the fantastic interpretation to Article 355 given in this 
judgement can have extremely far reaching implications on the 
citizenship and external policy of the country which is supposed to 
be made by Parliament and the government.

The Court also ruled that the applicability of the IMDT Act only to 
Assam made it discriminatory and violative of Article 14, since other 
states did not have to adhere to the more stringent provisions of the 
IMDT Act before pushing out persons designated as foreigners.

In saying so, the court completely overlooked the fact that the IMDT 
Act as such was applicable throughout India. However the government 
had not notified it for other parts of the country other than Assam. 
But that was an executive lapse and the other pending petitions 
sought precisely that direction from the court--that the government 
be directed to notify the IMDT Act for other parts of the country. 
The currently limited application of the Act to Assam alone was 
therefore not a defect in the Act, but a case of executive inaction 
for which the court could always issue direction to the government.

Similarly, if there was any problem with the screening procedure in 
the Rules made under the IMDT Act or the restrictions placed on the 
complainants, the court could always strike down those part of the 
rules or direct the government to correct the procedure. If the 
Tribunals under the Act were not acting expeditiously (which no court 
in India ever does), they could have directed the government to take 
whatever steps were required to remedy those.

In fact, the Act itself merely provides a judicial remedy to a person 
who is being thrown out of the country by the police on a mere 
allegation that he is a foreigner. This is not merely 
unexceptionable, but something the court would itself be expected to 
require the state to do even otherwise. In fact one would have 
expected the Supreme Court, which is constitutionally mandated to 
protect the fundamental rights of citizens, to have declared the 
Foreigners Act unconstitutional, insofar as it allows the authorities 
to throw out citizens alleged to be foreigners, without a judicial 
determination.

Instead the court says that:

"A deep analysis of the IMDT Act and the Rules made thereunder would 
reveal that they have been purposely so enacted or made so as to give 
shelter or protection to illegal migrants who came to Assam from 
Bangladesh on or after 25th March 1971 rather than to identify and 
deport them." 

Mr. Shanti Bhushan had submitted that a citizen cannot be thrown out 
of the country without a judicial determination of his rights and 
therefore the provisions under the Foreigners Act which allow the 
authorities to do this would be unreasonable and thus violate his 
fundamental rights to liberty. To this, the Court replies that no 
rights of an illegal migrant are violated when he is expelled from 
the country. But that is begging the question: How can you presume 
that he is an illegal migrant without a judicial determination of 
this question? 

Clearly, this judgement reflects a somewhat authoritarian and fascist 
mindset which feels that the police must have the authority to throw 
out anyone that they want without the impediment of independent 
judicial scrutiny. And this, coming from the Court which had been 
fully informed about the high handed and inhuman manner in which the 
authorities had been treating citizens under the Foreigners Act, is 
atrocious. It completely justifies the observation contained in the 
report of the Citizen's campaign for preserving democracy, when it 
said,

"Right from roundup and arrest, to the supposed 'hearing' and 
deportation, no lawful procedure is being followed by the 
authorities. The entire process contributes to and manifests the 
criminalization and communalization of the State and the corruption 
of its legal and judicial institutions".

A serious flaw found by the Court in the IMDT Act was that it did not 
place the burden of proving his Indian citizenship on the person 
accused of being a foreigner, unlike in the Foreigner's Act. This, 
the court said was completely unreasonable, since the person accused 
has the best means of knowing and proving whether he is an Indian or 
Foreigner. But that can be said for an accused in a criminal offence 
as well. After all, he has the best means of knowing whether he has 
committed the crime or not. So he should be required to prove his 
innocence. Yet, it is well established in our jurisprudence that an 
accused is presumed to be innocent unless proved guilty. 

The question of burden of proof is relevant only in a situation where 
there is no evidence either way. So for a person accused of a 
criminal offence, he would be declared innocent. But the court says 
that if there is no evidence either way about a person alleged to be 
a foreigner, he will be presumed to be a foreigner. Consider how this 
will translate in practice in India. Most people in India do not have 
any document which could 'prove' their Indian Citizenship. Abu Hanif 
had a passport, a voter identification card, ration card etc. Yet, he 
was declared by the police to be a Bangladeshi. But most people in 
the country do not have any of these documents or any 'official 
document' which would establish their Indian Citizenship. Should they 
be thrown out of India in these circumstances?

This would indeed be the import of this judgement.

In all of 30 years that I have observed the Supreme Court, I have yet 
to come across a judgement that is so illiberal, authoritarian, 
indeed fascist and communal in its mindset, uses such a fantastic 
interpretation of the Constitution, betrays such ignorance of basic 
legal principles and shows such a lack of sensitivity to human rights 
and basic human values. 

The ball is now in the Court of the government and people of this 
country. Will they tolerate such a slur on the Constitution?

(Prashant Bhushan is an eminent public interest lawyer in the Supreme Court.)



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