An Unconscionable Judgement

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

Taking note of these problems, in 1983, Parliament enacted the IllegalMigrants (Determination by Tribunals) Act, (IMDT Act) which as the titlesuggests provided for judicial tribunals to determine disputes about citizenshipwhich might arise under the Foreigners Act. The rules under the Act also providefor an administrative screening committee which would examine the complaintsunder the Act and reject complaints found to be frivolous. The Act, also for thefirst time, gave a limited right to any person to lodge a private complaint withthe Tribunals under this Act against persons regarding whom they had informationof 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 bemade against a persons residing within the same local area, and that personscould make a maximum of ten such complaints.

Though the Act itself was for the entire country, it was initially madeapplicable only to Assam and was to be made applicable to other parts of thecountry whenever the government notified it for those parts. The government’sstatistics showed that in the 20 years of the operation of the IMDT Act, about80% of the complaints were rejected by the screening committee itself . Out ofthe remaining 76,228 cases referred to the Tribunals during these years, only21,169 were disposed off by the Tribunal till 2003. Out of these, 11,636 personswere 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 feltthat the IMDT Act was coming in the way of expelling the foreigners that theywanted to expel. They began demanding that the centre repeal the Act and thusgive a free hand to the government and the police to expel anyone that theywanted under the Foreigners Act, without any judicial determination of therights of those that were sought to be expelled.

Soon after the BJP government came of power at the centre in 1998, it beganto resonate the demand of the AGP and the AASU. As part of this campaign, theBJP-appointed Governor of Assam, Gen S. K. Sinha, sent a shrill report to thegovernment in November 1998, which ended thus, "The silent and invidiousdemographic invasion of Assam may result in the loss of the geo-strategicallyvital districts of lower Assam. The influx of these illegal migrants is turningthese districts into a Muslim majority region. It will then only be a matter oftime when a demand for their merger with Bangladesh may be made. The rapidgrowth of international Islamic terrorism may provide the driving force for thisdemand."

However, it seems that it was not possible for the BJP to convince itscoalition partners about the need to repeal the IMDT Act. In 2000, a formerpresident of the AASU, Sarbananda Sonowal, filed a writ petition in the SupremeCourt seeking a declaration that the IMDT Act was unconstitutional. He arguedthat the Act impeded the expulsion of foreigners from Assam, as was evident fromthe figures of foreigners expelled using the IMDT Act. It thus violated theright of the Assamese people to preserve their culture. The impediments againstexpulsion, he argued, were placed primarily by the reversal of the burden ofproof from the Foreigners Act. Also, he pleaded that the restrictions placed onthe complainant (about filing a maximum of 10 complaints and that too againstpersons residing only in his local area) contributed to the problem. It wasfinally contended that the application of the IMDT Act to Assam alone wasdiscriminatory since in other states, the authorities could resort to theForeigners Act and throw out anyone that they wanted, without allowing recourseto a judicial Tribunal.

Meanwhile, during the pendency of this case, the police in Delhi were abusingtheir powers under the Foreigners Act and were engaged in a regular racket ofextorting money from poor Bengali Muslims living in slums. The modus operandihas been detailed in an investigative report produced by a very eminent group ofcitizens calling themselves the "Citizen’s campaign for preserving democracy".Its members included such experienced and eminent persons such as former ChiefJustice 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 policearbitrarily pick up poor Bengali muslims living in slums under the ForeignersAct who are then detained in inhuman conditions at a Municipal Corporationdetention centre where they are kept till there is a train bogie load of them.They are then taken to the Bangladesh border, dispossessed of whateverpossessions they have, and asked to run across. In the words of the report: 

"Whenthe people are forced across the border, all their possessions are taken away,along with any signs that may point to their Indian origin. ...  They arewarned that if they turn back, they will be shot as infiltrators. As partingadvice, they are also cautioned to tell the Bangladeshi Rifles, if they arecaught across the border, that they are returning from some work or wedding froma particular village. Thus poor people, deliberately bereft of identity andcitizenship, have no option but to again take the path of illegality merely inorder to survive."

In 2001, Abu Hanif, a poor Bengali Muslim who was detained by the police, bybranding him a Bangladeshi who had come from Bangladesh six months previously,filed a petition in the Supreme Court, seeking the application of the IMDT Actto Delhi. He pointed out that he had an Indian passport for the last 15 yearsand had been registered as a voter in Delhi for the last 15 years. He had allthe other documents to prove his citizenship, including ration cards, jhuggicards etc. Yet, the police claimed that he had come from Bashirhat in Bangladeshonly 6 months ago (It is perhaps just a matter of detail that Bashirhat isactually in West Bengal, and not inBangladesh!) He therefore asked for the constitution of a Tribunal under the IMDTAct to determine his claim and that he not be left at the mercy of police officers whohad 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 beheard 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, sayingthat the other petitions would be heard only after Sonaval’s petition wasdecided. However, on a persistent plea by Abu Hanif’s lawyer, Mr. ShantiBhushan, that the decision in Sonaval’s case would affect his case, the courtgave a brief hearing to him.

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

Being conscious of thislimitation, the judgement written by Justice G.P. Mathur, comes up with abrilliant idea. It opines that the Act violates Art 355 of the Constitution,which mandates the central government to protect the states against externalaggression and internal disturbance! It goes on to say that the onerousprovisions of the Act and Rules make it virtually impossible to expelforeigners and therefore the Act encourages infiltration of illegal migrantsfrom Bangladesh, which amounts to external aggression against India! 

Certainlyan inspired, original and breathtakingly audacious interpretation of Article 355of the Constitution. But then, it has been bluntly stated by a legendaryAmerican 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 wonderwhether the Honourable judges were aware of the implications of what they weresaying. For example, India has a treaty with Nepal which permits Nepali citizensto come and freely stay in India, without visa and Indian citizens can do thesame in Nepal. Will this treatynot be similarly unconstitutional on the principle that it encourages Nepalimigration to India and thus promotes external aggression by Nepal? 

Or supposethat Parliament were to amend the Citizenship Act to provide that persons fromany territory which was part of undivided India would be given Indiancitizenship, if they applied. Would such an amendment also be unconstitutional onthe same ground? If so, what of the existing provision which gives automaticcitizenship to those who were born in undivided India? Mr. Advani and manyothers who were from Pakistan are citizens of India only by virtue of thatexisting provision. Thatwould also be unconstitutional on the logic given. 

Clearly, the fantasticinterpretation to Article 355 given in this judgement can have extremely farreaching implications on the citizenship and external policy of the countrywhich is supposed to be made by Parliament and the government.

The Court also ruled that the applicability of the IMDT Act only to Assammade it discriminatory and violative of Article 14, since other states did nothave to adhere to the more stringent provisions of the IMDT Act before pushingout persons designated as foreigners. In saying so, the court completelyoverlooked 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 otherthan Assam. But that was an executive lapse and the other pending petitionssought precisely that direction from the court--that the government be directedto notify the IMDT Act for other parts of the country. The currently limitedapplication of the Act to Assam alone was therefore not a defect in the Act, buta case of executive inaction for which the court could always issue direction tothe government. 

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

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

Instead the courtsays that:

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

Mr. ShantiBhushan had submitted that a citizen cannot be thrown out of the country withouta judicial determination of his rights and therefore the provisions under theForeigners Act which allow the authorities to do this would be unreasonable andthus violate his fundamental rights to liberty. To this, the Court replies thatno rights of an illegal migrant are violated when he is expelled from thecountry. But that is begging the question: How can you presume that he is anillegal migrant without a judicial determination of this question? 

Clearly, thisjudgement reflects a somewhat authoritarian and fascist mindset which feels thatthe police must have the authority to throw out anyone that they want withoutthe impediment of independent judicial scrutiny. And this, coming from the Courtwhich had been fully informed about the high handed and inhuman manner in whichthe authorities had been treating citizens under the Foreigners Act, isatrocious. It completely justifies the observation contained in the report ofthe Citizen’s campaign for preserving democracy, when it said, 

"Right fromroundup and arrest, to the supposed ‘hearing’ and deportation, no lawfulprocedure is being followed by the authorities. The entire process contributesto and manifests the criminalization and communalization of the State and thecorruption of its legal and judicial institutions".

A serious flaw found by the Court in the IMDT Act was that it did not placethe burden of proving his Indian citizenship on the person accused of being aforeigner, unlike in the Foreigner’s Act. This, the court said was completelyunreasonable, since the person accused has the best means of knowing and provingwhether he is an Indian or Foreigner. But that can be said for an accused in acriminal offence as well. After all, he has the best means of knowing whether hehas 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 tobe innocent unless proved guilty. 

The question of burden of proof is relevantonly in a situation where there is no evidence either way. So for a personaccused of a criminal offence, he would be declared innocent. But the court saysthat if there is no evidence either way about a person alleged to be aforeigner, he will be presumed to be a foreigner. Consider how this willtranslate in practice in India. Most people in India do not have any documentwhich could ‘prove’ their Indian Citizenship. Abu Hanif had a passport, avoter identification card, ration card etc. Yet, he was declared by the policeto be a Bangladeshi. But most people in the country do not have any of thesedocuments or any ‘official document’ which would establish their IndianCitizenship. Should they be thrown out of India in these circumstances? 

Thiswould indeed be the import of this judgement.

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

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

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