Assam: Court’s Slap to Politics of Citizenship

Assam’s murky politics of citizenship, on which elections have been won or lost in the State for more than fifteen years now, stands finally exposed. The Supreme Court on December 5, 2006, struck down the Union Government’s February 10, 2006 notification that had put the onus of proving an illegal migrant in Assam on the complainant, and not on the accused, as is the case with the law that applies to all such people of doubtful nationality in the rest of the country. What India’s apex court quashed was the Foreigners (Tribunals for Assam) Order, 2006, which, if not a clone of the controversial Illegal Migrants (Determination by Tribunals) (IM[DT]) Act, 1983, had the same contentious provision — vesting the burden of proof for an alleged illegal migrant on the complainant or investigating agency. Incidentally, the Supreme Court, acting on an earlier petition by the then President of the All Assam Students’ Union (AASU) and Asom Gana Parishad (AGP) Member of Parliament, Sarbananda Sonowal, had struck down the IM[DT] Act, on July 12, 2005, terming it as unconstitutional (referred to as Sonowal - I). Everywhere else in India, foreigners or illegal migrants are governed in accordance with the Foreigners Act, 1946.

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 the State (read, those who support the outsider Muslim settlers who are a dominant factor in Assam’s electoral politics, controlling up to 50 of the State’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 the State, 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 the State 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 Union Government: Assam Chief Minister Tarun Gogoi stated that the February 10, 2006, notification, which amended the Foreigners (Tribunals) Order, 1964, was effected by the Union Government to ensure that genuine Indian citizens belonging to the minority community are not harassed during the process of detecting illegal migrants. The Union Government, 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,

No reasons are given to justify the exclusion. In making the 1964 order inapplicable to Assam alone, when the other States having boundaries with Bangladesh, are still expected to apply that order, the respondents have acted arbitrarily and have not kept in mind the interests of the country. No rational reason has been put forward to justify such a separate treatment for Assam especially in the context of the report of the then Governor [highlighting the problem of illegal migrants].

The Court added, moreover, "it appears that the 2006 order has been issued just as a cover up for non implementation of the directions of this Court issued in Sonowal-I", and concluded,

In the face of the clear directions issued in Sonowal-I, it was for the authority concerned to strengthen the Tribunals under the 1964 Order and to make them work. Instead of doing so, the 2006 Order has been promulgated.

It is not that Assam’s main Opposition party, the AGP, has not tried to woo the ‘minorities’ to its fold. On the eve of the State Assembly polls in April 2006, the AGP set up a ‘minority cell’ manned by several Muslim party members. This move was seen as an attempt by the AGP to send a signal out to Muslim voters that the party was not against the community, and that it was only against illegal aliens.

What is extremely important while discussing the contentious migration issue in Assam is to understand that the State of 26 million people comprises indigenous Assamese-speaking Muslims, indigenous Bengali-speaking Muslims (who dominate the Southern Barak Valley Districts), and the Muslim settlers whose origins can be traced to erstwhile East Bengal, now Bangladesh. The Assam Accord of 1985 had fixed March 25, 1971, as the cut-off date for detection and expulsion of illegal migrants, meaning that all those people from present Bangladesh who had entered Assam on or before that date would be regarded as Indian citizens, and the rest were to be detected and expelled. The issue of illegal migration refers only to those people from Bangladesh who illegally entered India after March 25, 1971.

Unfortunately, many politicians and analysts fail to make a clear distinction between the immigrant settlers or illegal migrants and the indigenous Muslims of Assam. That makes the State’s politics murkier still, because the total Muslim population in Assam is estimated at 30 per cent of the State’s population of 26 million.

The security implications of illegal migration are now becoming increasingly urgent. This issue gave rise to the State’s principal insurgency led by the United Liberation Front of Asom (

ULFA), though this outfit now has little ideological content or connection with its original mandate and objectives. Worse, it is now common knowledge that Bangladesh is progressively turning into a hub of Islamist terror, with radical groups linked to the Al-Qaeda well-entrenched in that country. With a porous border with India stretching more than 4,000 kilometers running along rivers and croplands, inadequate security posts and poor deployment of Forces along the border, trans-border movement is a common phenomenon in the area. Further, with any number of Northeast Indian insurgent groups operating from bases and safe havens in Bangladesh, it is all the more important to stop the illegal influx, as also to detect and expel all illegal migrants.

No wonder the Supreme Court while quashing the February 10 Order reminded the Union Government of its obligations to protect the country from external aggression, noting that

‘It (the February 10 order) does not serve the purpose sought to be achieved by the 1946 (Foreigners) Act or the Citizenship Act and the obligations cast on the Central Government to protect the nation in terms of Article 355 of the Constitution…’

The Court’s observation on the national security aspect must not be taken as a mere cautionary note. It needs to be recognized that most recent Islamist terrorist attacks in India, including the 7/11 blasts in Mumbai, the serial blasts in Varanasi in March 2006, the attack at the Indian Institute of Science, Bangalore, in March 2005, and the suicide bombing at the Special Task Force Headquarters of the Andhra Pradesh Police in Hyderabad on October 12, 2005, all had a Bangladeshi ‘footprint’. Indian investigators found that these incidents were carried out by terrorists who had infiltrated from Bangladesh and some of whom were Bangladeshi nationals, or were otherwise sourced or serviced through Bangladesh. A Government status paper presented in the Indian Parliament in the first week of December 2006 observed that Pakistan-based terrorist groups such as the Jaish-e-Mohammed (now Khuddam-ul-Islam) and Lashker-e-Taiba (now Jamaat-ud-Dawa) are using territory and ‘elements’ in Bangladesh and Nepal for movement of terrorists and finances.

What has, however, kept the issue alive in Assam for more than a decade-and-a-half is the misuse on many occasions in the past of provisions in the Foreigners Act, 1946, where overzealous police or administrative officials served notices on genuine Muslim citizens, including Assamese-speaking inhabitants, to prove their nationality. Such instances were also, unfortunately, the result of petty politics, not acts of honest law enforcement.

Today, there is euphoria in Assam yet again, after the Court struck off a provision that was soft on illegal migrants seen by many as part of Bangladesh’s grand design for a ‘demographic invasion’ of Assam. Groups like the AASU, which had spearheaded the six-year-long anti-foreigner (anti-illegal Bangladeshi migrants) agitation in the eighties, celebrated the verdict. What the AASU has always found hard to explain is the reason why its leadership accepted the IM[DT] Act, which was legislated in 1983 to further an agreement with the Union Government to end AASU’s agitation two years later (in August 1985) under the watchful eyes of then Prime Minister Rajiv Gandhi.

The fact remains that, irrespective of whether a soft or a tough law exists by which to deal with foreigners or illegal migrants, cross-border human traffic along the Indo-Bangladesh border is bound to continue in times to come. The catch lies in enforcing the law in whatever form it exists, not in celebrating the ‘dustbinning’ of a certain provision perceived to be favourable to illegal migrants. Unless the politics of citizenship comes to an end in Assam, illegal Bangladeshis will keep coming in.