Citizenship Politics

Assam has suddenly been gripped by both euphoria and fear after the country'sSupreme Court, on July 12, 2005, struck down as unconstitutional an immigrationlaw that was in force only in the state. While certain groups are celebratingthe apex court's verdict thinking it would now be easy to detect and throw outthe 'hordes' of illegal Bangladeshi migrants, others fear the exit of thespecial piece of legislation could lead to genuine citizens belonging to theminority communities (read, Muslims) being victimized or harassed in the name ofdetecting Bangladeshi aliens.

The Illegal Migrants (Determination by Tribunals) (IMDT) Act, a federallegislation, was introduced in this troubled Northeastern state on October 15,1983, at the height of the 'anti-foreigner' (anti-Bangladeshi migrants) uprisingspearheaded by the All Assam Students' Union (AASU), the state's frontlinestudent group. With the introduction of the IMDT Act, Assam became the only statein India where the Foreigners Act was not applicable.

For the past two decades, the IMDT Act itself turned out to be fodder for theextremely murky politics of citizenship in the state of 26 million people. TheAct laid down the provisions under which authorities were supposed to detect andexpel illegal Bangladeshi migrants, whose number, according to groups like theAASU, runs into 'lakhs and lakhs' [the Union Ministry of Home Affairs put thenumber of illegal Bangladeshi migrants in India at 10 million in 1997]. Giventhe demographic profile of particular constituencies, political parties andindividual candidates have won or lost elections, depending on whether they weresupporters or opponents of the IMDT Act. Muslims (mostly settlers) are said tobe a deciding factor in almost half of Assam's 126 state Assemblyconstituencies.

The IMDT Act imposed several conditions for action against suspected illegalmigrants that groups such as AASU and opposition parties like the Asom GanaParishad (AGP) and the Bharatiya Janata Party (BJP) deemed 'migrant friendly'.Thus, the burden of proof that an individual was an illegal migrant was placedon the complainant. Further, before the IMDT Act was amended in 1988, only thosewho resided within three kilometers from the place where a suspected illegalmigrant was staying were eligible to lodge a complaint, and that, too, onpayment of a fee! The Foreigners Act found favour with the anti-migrant groupsas it vested the burden of proof on the accused.

The Congress Party - during whose tenure in New Delhi the Act was introduced in1983 - had all along backed the IMDT Act on the ground that its provisionshelped in preventing genuine citizens from being harassed. The Congress andsmall local parties like the United Minorities Front (UMF), cited instances inthe past (before the IMDT Act's introduction) when apparently bona fidecitizens were herded out of Assam by the police as 'illegal migrants'. Whatparties like the Congress liked the most about the IMDT Act was that it provideda judicial mechanism in the form of tribunals, headed by retired judges, todetermine the nationality of a suspect. These parties have, however, beenaccused of being soft on 'Bangladeshi settlers' because these constitute a major'vote bank' for them.

The euphoria generated in the state by the Supreme Court's decision to strikeoff the IMDT Act is understandable. Between 1979 and 1985, AASU led perhaps thelargest mass uprising in Independent India precisely on the issue of illegalBangladeshi migrants. The agitation was sparked off in 1979 after names ofaliens appeared in large number in the voters' list of a Lok Sabha constituency,Mangaldoi, where a by-election was to be held.

The stir ended on August 15, 1985 after then-Prime Minister Rajiv Gandhi oversawthe signing of an agreement, popularly called the Assam Accord. It was atripartite agreement between AASU and its allies, the centre and the Assam government.The Accord had set March 25, 1971, (the day Bangladesh was born) as the 'cut-offdate' for detection and expulsion of illegal migrants. That meant that thoseillegal aliens who had entered India on or after that date were to be identifiedand expelled in accordance with the IMDT Act. However, the poor end result ofthis exercise incensed groups like the AASU, AGP and the BJP, all of whom blamedthe 'loopholes' in the IMDT Act. Over the past two decades, just about 1,500'illegal Bangladeshis' have been expelled, according to official records. Evenfor this number, however, there is no evidence that Bangladesh has officiallyaccepted their return.

It was in 1998 that the All India Lawyers' Forum for Civil Liberties filed apublic interest litigation (PIL) in the Supreme Court seeking a direction to thecentre and the state governments in Assam, Meghalaya, West Bengal, Mizoram,Tripura and Delhi to deport all Bangladeshis living illegally in India. Then, in2000, former AASU president, and currently Lok Sabha MP from the AGP, SarbanandaSonowal, moved a PIL seeking the quashing of the Act itself. After a five-yearlegal battle, the Supreme Court's verdict came on July 12, 2005. The Court'sobservations were interpreted by the AASU, AGP and the BJP as a vindication oftheir stand. Some of the major observations in the 114-page Supreme Court orderare:

• The IMDT Act was 'ultra vires' of the Constitution
  
• By enacting the Act, the Parliament had divested the Central government of the powers to remove Bangladeshi migrants, whose presence was creating a serious law and order problem
  
• The IMDT Act was unconstitutional and must be struck down as it contravenes Article 355 of the Constitution, where a duty has been cast upon the Union of India to protect every state against external aggression and internal disturbance
  
• Illegal migration was an 'aggression on Assam'
  
• The migration has retarded Assam's growth despite the state's natural resources
  
• The burden of proof in all leading democracies in the world lies on the accused who has to prove that he or she is a national of that country

Significantly, however, the Supreme Court has not struck down the judicialmechanism while striking down the IMDT Act. The Court's order said: "Allthe tribunals and appellate tribunals under IMDT Act shall cease to function.All cases pending before (these) tribunals shall stand transferred to Foreigners(Tribunal) Order and be decided under Foreigners Act." The ruling Congressin Assam found this a great relief. "The positive aspect of the SupremeCourt verdict is that it did not leave detection of foreigners to police anddirected constitution of tribunals under the Foreigners Act," Assam ChiefMinister Tarun Gogoi was quoted as saying. He said the Congress was all alongdemanding that the foreigners should be detected through a judicial process andthat the matter should not just be left to the police machinery. So, it seemsclear that the exercise of detecting and throwing out illegal migrants is notgoing to see results overnight even under the new arrangement.

Let's take a look at the political fallout so far after the IMDT Act's exit:

• The Congress has called upon the minorities not to be worried and has promised to make sure that genuine citizens would not be harassed
  
  
• Chief Minister Tarun Gogoi and his aides have rushed to New Delhi lobbying with the party bosses and the Union government to come up with a new law to deal with foreigners
  
  
• The Congress-led government in New Delhi, at a meeting chaired by Prime Minister Manmohan Singh on July 14, 2005, decided to form a Group of Ministers to hear different points of view on the IMDT Act and come up with an appropriate response
  
  
• The All Assam Minorities Students' Union (AAMSU) had called a general strike in Assam on July 13, 2005 accusing the Congress government in Assam of not responding properly, thereby losing the court battle on the IMDT Act
  
  
• The AASU has said that minorities in Assam who are genuine citizens need not fear.

A new trend in the politics of citizenship has only just begun. The Congresshas already spread the word that, as long as the party stays in power, theminorities have no cause for worry, and hopes to retain its 'vote banks' despiteits failure to retain the IMDT Act. However, the UMF has accused the Congress ofpaying 'lip-service' to minority interests in Assam and has blamed the party ofnot defending the IMDT Act well. If the UMF, in the run-up to the elections,decides to go all out against the Congress on this issue, the minority vote maybe split down the middle. In that event, the AGP and the BJP would certainlybenefit. If, however, the UMF and the Congress reach an understanding, theCongress could once again win the polls. The battle over the exclusive law isover, but the war seems to have just begun.

Wasbir Hussain is Associate Fellow, Institute for Conflict Management, NewDelhi; Consulting Editor, The Sentinel, Guwahati. Courtesy, the SouthAsia Intelligence Review of the South Asia Terrorism Portal