ASSAM

On Supreme Court’s Verdict On IMDT Act

Noorul Huda

EVER since the liberation of Bangladesh in 1971 and establishment of a sovereign republic, the problem of influx of thousands and thousands of Bangladeshi citizens into Indian border states of Assam, Tripura, Meghalaya and West Bengal has arisen. In the beginning, because of joy and enthusiasm exhibited by people of both countries at the creation of a friendly neighbour, nobody took objection. Several years passed by but when in June 1975, prime minister Indira Gandhi declared a state of emergency in the country and in August 1975 when Sheikh Mujibur Rahman, the legendary leader and founder of Bangladesh was assassinated, the period of bonhomie between India and Bangladesh seemed to have suddenly ended.

Indira Gandhi and her party, the Indian National Congress (INC) were roundly defeated in the parliamentary election in 1977 and a new party, Janata Party, led by Moraji Desai formed a government at the centre. Those were very uncertain and troublesome years for the new state of Bangladesh too and the friendship and goodwill generated between our two countries seemed to have gradually evaporated.

After the lifting of the emergency in 1977, the Left Front, under the leadership of the CPI(M), came to power in West Bengal and in the following year in Tripura also. In Assam too, the Left parties viz CPI(M), CPI, RCPI, SUC and the naxalities, though contesting limited number of seats in the 1978 state assembly elections, scored impressively by winning in 25 constituencies out of a total of 126 seats. In Guwahati Municipal Corporation too, the Left and democratic forces won in a sizeable number of constituencies and an independent personality was elected as mayor of Guwahati in 1979.

NELLIE MASSACRE

In such circumstances, the chauvinist and reactionary circles, both domestic and foreign, in the state of Assam got mortally afraid and in the middle/third quarter of 1979, began the most violent chapter in the history of Assam, with the clarion call of ‘Bideshi Khedao’ (drive out the foreigners) from Assam. This violence continued for approximately six years up to the signing of Assam Agreement in 1985. In February 1983, during the ill-fated Assam assembly elections, nearly 3000 innocent and very poor Muslims (all Indian citizens) were massacred in broad daylight in a single day in the village of Nellie under the district of Nagaon, not very far off from the capital city of Guwahati. To this day, though 22 years have elapsed since the ghastly occurrences, nobody has claimed responsibility and neither the ruling governments, successively led by INC or AGP, nor the AASU or any other opposition party had ever cared to demand judicial probe or independent enquiry into such a shameful episode.

It is an extraordinarily mysterious case where such a large number of Indian citizens were killed cold bloodedly in a single day and millions of our rational thinking citizens, in or outside Assam chose to keep completely silent for 22 years. Since the CPI(M) and some other Left-minded and progressive intellectuals had dared to oppose the violent and chauvinistic Assam agitation, they were hounded, abused, and socially boycotted and more than fifty CPI(M) and trade union and youth activists were cruelly tortured and done to death.

This kind of sordid chapter ended with the formation of a regional party, the Assam Gana Parishad (AGP) in October 1985. They swept the assembly polls in December 1985 and established the first regional party government in Assam. Its precursor, the All Assam Students’ Union (AASU) which spearheaded the violent agitation, entered into a tripartite agreement in August 1985 with the government of India led by prime minister, Rajiv Gandhi and chief minister, Hiteswar Saikia-led Assam state government. Two years before the Assam Agreement i e in 1983, the Illegal Migrant Determination by Tribunal Act (IMDT) was enacted in the parliament to protect genuine Indian citizens from harassment because at that time, it was felt that the Foreigner’s Act 1946 was not adequate for the purpose of protecting genuine Indian citizens belonging to the minority communities, both religious and linguistic. It is extremely interesting to recall that those who had signed the Assam Agreement in August 1985 viz the leadership of AASU and AAGSP did not deem it necessary to protest or raise any objection to the provisions of IMDT Act 1983. On the contrary, they had virtually approved the Act.

AGP’S VACILLATING POSITIONS

Even during the first five year tenure of AGP rule in Assam, the same leadership who had led the violent Assam agitation during 1979-85, did not exhibit any seriousness to check the influx of illegal migrants from Bangladesh from across the porous borders, nor did they raise any hue and cry about the inadequacy of and shortcoming and defects in the IMDT Act 1983 for the purpose of identification, detection and deportation of illegal migrants from Bangladesh nor had they exerted pressure on the government of India to seal the international Assam-Bangladesh borders by erecting suitable fencing and adopting other necessary measures. It may be pointed out that the then prime minister, Rajiv Gandhi, during 1984-89 period appeared to be quite friendly with the leadership of AASU-AAGSP who had later converted into the AGP. Some pressure on the central government could have carried the day.

Only when the AGP lost power in the 1991 assembly elections, and the Congress (I) catapulted to power in Assam, and in the centre, the AGP leadership and the AASU began raising slogan of difficulties and problems the complainants were facing under the IMDT Act in the matter of identifying, detecting and deporting the illegal migrants from Bangladesh and gradually, they came round to denouncing the IMDT Act 1983 and demand for its repeal. And much later, they started claiming that the Foreigners Act 1946 was good enough for the purpose and that since IMDT Act was applicable to the state of Assam alone, it should be scrapped forthwith and further, since the Foreigner’s Act 1946 was an all India Act and was applicable to the entire country, it should be made operative in the state of Assam too for the purpose of tackling the illegal migrants from Bangladesh.

SONOWAL AFFIDAVIT

In striking down the IMDT Act 1983, the Supreme Court of India, led by the chief justice, Lahoti and two other eminent justices, have relied heavily on (a) the pleadings and averments contained in the affidavits sworn by Sarbananda Sonowal, MP and erstwhile AASU leader, who was the writ petitioner, (b) Law Commission’s quotations from Assam Governor Lt General (Retd) S K Sinha’s report to the President of India dated November 8, 1998 and (c) Report of General Secretaries of Indian National Congress of the north-eastern states to the General Conference of NE Congress (I) Committee dated July 3, 1992.

The affidavits sworn by Sabananda Sonowal contain the following averments (a) that the rights of residents in the state of Assam have been materially and gravely prejudiced by the operation of IMDT Act 1983; (b) that the IMDT Act 1983 is wholly arbitrary, unreasonable and discriminates against a class of citizens of India making it impossible for Indian citizens in Assam to secure the detection and deportation of foreigners from Indian soil. The IMDT Act 1983 has completely failed to meet the standards prescribed in the Foreigners Act 1946. Even those provisions of IMDT Act 1983 which afford some protection to genuine Indian citizens are not being properly enforced due to extraneous political considerations; (c) that the presence of illegal migrants has changed the whole character, cultural and ethnic composition of the area. IMDT Act creates a situation whereunder it has become virtually impossible to challenge the presence of a foreigner and to secure his detection and deportation or even deletion of his name from the electoral rolls in Assam; (d) that the huge number of Bangladeshi nationals who have crossed over to India, have occupied vast tracts of land in sensitive international border areas which has very serious implication for national security; (e) that there has been a sharp increase of Muslim population in Assam; (f) that the IMDT Act 1983 virtually gives the illegal migrants in the state preferential protection in a matter relating to the citizenship of India; (g) that because of ethnic linguistic and religious commonality between the illegal migrants and many people on our side of the border, it enables them to find shelter and makes their detection difficult. Some political parties have been encouraging and even helping illegal migration with a view to building vote banks. These immigrants are hardworking and are prepared to work as cheap labour which makes them acceptable and some corrupt officials are bribed to provide help; (h) that the prophecy that except Sibsagar district the Assamese people will not find themselves at home in Assam is becoming true; (i) that according to former union home minister, Indrajit Gupta, there were 10 million illegal migrants in India out of which the figures for West Bengal, Assam and Tripura are 5.4 million , 4 million and 0.8 million respectively; (j) that in the case of Muslims, their growth rate in Assam was much higher than the all India rate; (k) that the illegal migrants coming into India after 1971 have been almost exclusively Muslims. Pakistan’s ISI has been active in Bangladesh supporting militant movement in Assam resulting in mushrooming of Muslim militant organisations; (l) that because of large-scale migrations from Bangladesh, the spectre looms large of the indigenous people of Assam being reduced to a minority in their home state, their cultural survival will be in jeopardy, their political control will be weakened, and their employment opportunities will be undermined; and (m) that the silent and invidious demographic invasion of Assam may result in the loss of the geo-strategical vital districts of lower Assam. Influx of these illegal migrants is turning these districts into a Muslim majority region. A demand for merger with Bangladesh may be made. International Islamic fundamentalists may provide a driving force for this demand. Loss of lower Assam will sever the entire landmass of the northeast from the rest of India.

According to the judgement of the learned Supreme Court, Ashok Desai senior counsel of the petitioner stated that the whole demographic pattern of Assam has undergone a change and the local people of Assam have been reduced to a minority in their own state on account of large influx of illegal migrants from Bangladesh. He also submitted that under Article 29 (1) of the Constitution, the people of Assam have a fundamental right to conserve their language, script and culture. The enforcement of IMDT Act has no doubt facilitated to a very large extent the illegal migrants from Bangladesh to continue to reside in Assam, who on account of their huge number affect the language, script and culture of the local people. The learned bench, however refrained from expressing any conclusive opinion on this submission of the learned counsel.

UNSUBSTANTIATED POSITION

If we now analyse the averments contained in petitioner Sarbananda Sonowal’s affidavit to the Supreme Court, we shall find that Lt General S K Sinha’s report to the centre dated November 8, 2004 during his tenure as governor of Assam expressed grave concern at the unabated influx of illegal migrants from Bangladesh to Assam, which in his opinion threatened to reduce Assamese people to a minority in their own state, illegal migration was the core issue behind the Assam student movement, and also the prime contributory factor behind insurgency in the state, and such illegal migration greatly undermines our national security and mentions about the long cherished design of Greater East Pakistan/Bangladesh making inroads into strategic land link of Assam with the rest of the country, can lead to severing the entire landmass of the northeast.

Though the governor’s report was allegedly prepared after thorough inspection of border areas and districts, discussion with Indian High Commissioner in Bangladesh and talks with political leaders, these are mainly speculative in nature, based on unreliable and unconfirmed newspaper sources. Neither the Indian High Commissioner in Bangladesh nor any other political leaders had ever substantiated the claims made by governor S K Sinha’s report to the president. On the other hand, after being leaked to the press (which was improper and unethical to say the least), the elected government of Assam had later contradicted the contents of the report. The apprehension that the Assamese people would be reduced to a minority in their own state has never been raised by any responsible quarters and it is a myth and completely subjective and somewhat ridiculous claim that illegal influx of foreigners from Bangladesh was the prime contributory factor behind the outbreak of insurgency in Assam. Till now, no responsible authority has connected outbreak of insurgency with influx of illegal Bangladeshi migrants. The governor, Lt General S K Sinha should have known that insurgency in its worst form broke out in Nagaland, Mizoram, and Manipur long before the problem of illegal influx of Bangladeshis in Assam or the north-eastern region cropped up. He has also talked about long cherished design of greater East Pakistan/ Bangladesh without adducing a single thread of proof or evidence. We wonder as to what method the erstwhile governor and distinguished Lt General (Retd) had adopted to suspect the border areas; which agencies were entrusted for such inspections. There is no evidence to show that the governor had met recognised political party leaders in Assam to ascertain their views. Only because the governor, Lt General (Retd) S K Sinha had adorned the highest rank in the army, his statements cannot be treated as gospel truth, without proof or evidence. Indeed his views on infiltration of Bangladeshis in Assam appear to be extremely biased and one-sided.

 (To be continued)