When the IM[DT] Act was struck down ten months ahead of the state Assembly elections in Assam (polls were held in April 2006), there was an attempt by minority political forces in thestate (read, those who support the outsider Muslim settlers who are a dominant factor in Assam’s electoral politics, controlling up to 50 of thestate’s 126 Assembly seats) to cash in on the fear that even bona fide citizens belonging to the minority community could face harassment. The ruling Congress party in Assam, bent on returning to power, had to allay this apprehension among the minorities, and it helped that the Congress-led United Progressive Alliance was in power at the Centre. Prime Minister Dr. Manmohan Singh constituted a Group of Ministers, with Pranab Mukherjee, then Defence Minister, to examine the fallout of the quashing of the IM[DT] Act, particularly its impact on the minorities. It was on the recommendation of the Group of Ministers that New Delhi came up with the February 10, 2006, Order. This was immediately challenged by leaders of two main Opposition parties in thestate, the AGP and the Bharatiya Janata Party (BJP).
The core question was, why should Assam have a different immigration law in force or why should the illegal migrants coming to Assam be treated differently from those who have migrated to other parts of the country? This extremely valid question has been posed by many over the years, but the answer itself is not hard to find: politics, obviously. It is this politics that explains why the AGP, which was formed in 1985 with the avowed objective of ridding Assam of ‘illegal aliens’ (Bangladeshi migrants) and succeeded in ruling thestate for almost ten years over two terms, could manage to ‘expel’ only around 1,500 illegal Bangladeshi migrants. Whether Dhaka, which insists there is no illegal migration of its citizens to India, accepted these people as their nationals, is a different story.
On the present occasion, after the IM[DT] Act was declared ultra vires of the Constitution by the Supreme Court, the Congress had to appear as the saviour of Assam’s minorities. This was despite the fact that the Foreigners Act, 1946, has strong provisions to ensure that genuine citizens are not harassed in the name of determining the nationality of a person or proving his or her citizenship.
It is interesting to take a look at the arguments put forward by Congress leaders and the Uniongovernment: Assam Chief Minister Tarun Gogoi stated that the February 10, 2006, notification, which amended the Foreigners (Tribunals) Order, 1964, was effected by the Uniongovernment to ensure that genuine Indian citizens belonging to the minority community are not harassed during the process of detecting illegal migrants. The Uniongovernment, on its part, during the Supreme Court proceedings on the case, sought to dispel the impression that the controversial Order had shifted the burden of proof on the complainants. The Centre argued that the February notification did not ‘in any way’ contravene Section 9 of the Foreigners Act, 1946, on the question of burden of proof. However, the Court remarked that if there was no difference between the 1964 Order and the latest one, where was the need to amend the 1964 Order and come up with the fresh one? And, further,