Laws have failed to check illegal immigration into Assam for years.

Posted on: September 23, 2012

The recent violence between Bodos and Muslims in Assam that claimed more than 70 lives and left around four lakh people homeless has once again thrown the spotlight on the contentious issue of illegal migration.

The Bodos have alleged that illegal migrants have been occupying “their” land for decades and this is what led to the conflict. The settlers, on the other hand, insist that they are bona fide Indian citizens and that the Bodos have no right to try and oust them from there.

In this context, questions are now being raised on the effectiveness of the laws that are meant to detect and deport illegal migrants.

Indeed, right from the time of Partition, the country has had a whole spectrum of laws to deal with illegal migration. Unfortunately, each has been fraught with loopholes. The Foreigners Act, 1946, and Foreigners Order, 1948, were introduced to check the entry of aliens into India. But experts say that these could not be properly implemented because there was a huge — and inevitable — influx of people from Pakistan and the erstwhile East Pakistan after Partition.

A few years later, yet another law — Immigrants (Expulsion from Assam) Act, 1950 — was passed to stem the tide of foreigners into the northeastern state of Assam from neighbouring East Pakistan. But this too proved to be ineffectual as it came with a rider.

“The proviso to Section 2 of the act allowed minority communities of Bangladesh to migrate to Assam on account of ‘civil disturbances’. But there was no effective mechanism to ascertain the actual beneficiaries of the law. So many Muslims from Bangladesh came in even though they were not protected under this clause,” says Supreme Court advocate Shuvodeep Roy.

The chequered history of illegal migration into India took yet another turn after the formation of Bangladesh in 1971. A year later, Prime Minister Indira Gandhi signed a pact with Bangladesh’s first President, Sheikh Mujibur Rehman, wherein it was decided that Bangladeshi nationals who came to India on and after March 25, 1971, would be sent back. In other words, the status of those who had migrated illegally before this date was legalised. As former director general of Border Security Force (BSF) E.N. Rammohan explains, “All those who were detected as foreigners under the 1950 Act were absorbed.”

Though Bangladesh denies that its citizens come into India illegally, experts say that economic migration from Bangladesh to the whole of India, especially to Assam and West Bengal, is rampant. “There are three types of illegal migrants. First, those who came with valid visa and documents but overstayed. Second, those who came with forged visa and documents. And third, those who entered surreptitiously,” says former Indian high commissioner to Bangladesh, Veena Sikri.

Assam, which has received wave after wave of illegal migrants, has always been deeply resentful of the settlers. In 1979 the issue sparked a violent statewide agitation. But in the Assam Accord of 1985 — a pact between the All Assam Students’ Union, All Assam Gana Sangram Parishad and the Centre to deal with illegal migration — the same cut off date of 1971 was taken into account. Furthermore, under the terms of the accord, all those who came to Assam before January 1, 1966, had the right to vote. It also said that those who came on or after March 25, 1971, would be expelled from the country.

Two years before the Assam Accord was drafted, a new law called the Illegal Migrant Determination by Tribunal (IMDT) Act was enacted in 1983 exclusively for Assam. (The Foreigners Act was applied in the case of the rest of the country.)

Critics say that the IMDT Act didn’t serve any purpose because the onus of proving citizenship rested on the accuser and the police, and not on the accused. Says former home secretary G.K. Pillai, “In most cases, it was impossible for the police to produce documents against the accused, thus making it difficult to prove that the suspect was a foreign national.”

In the end, the Supreme Court scrapped the IMDT Act in 2005 while hearing the case ofSarbananda Sonowal vs Union of India. Petitioner Sonowal had submitted that 1,494 illegal migrants were deported from Assam till June 2001 under the IMDT Act while 4,89,046 Bangladeshi nationals were deported from West Bengal between 1983 and 1998 under the Foreigners Act — thus underlining the ineffectiveness of the IMDT Act.

After the apex court struck down this law, cases of illegal migration to Assam came under the purview of the Foreigners Act. All pending cases were transferred to the tribunals under the Foreigners (Tribunals) Order, 1964.

However, experts point out that these tribunals have been quite ineffective in dealing with cases of illegal migration. Often, hearings can go on for as long as 10 years because they are overburdened with cases. Says retired judge B.K. Sarma, the sole member of the Foreigners Tribunal in Assam’s Baksa district, “We have no basic infrastructure to run the tribunal. There are 4,698 pending cases in our tribunal since 2006.” This tribunal has declared 35 people foreigners in the past six years.

But the other reason for the delay in the disposal of cases is that suspects often go absconding. Last year the Gauhati High Court observed that those absconding are often not traced by the police.

Even if the illegal migrant has been declared as such and apprehended, the process of deportation is complicated. After being declared an alien, he or she has the right to challenge the order in the high court and later, in the Supreme Court.

If the apex court upholds the tribunal’s order, the person has to be deported. But this is a tricky process as India and Bangladesh do not have a bilateral agreement on repatriation.

As Supreme Court lawyer Arthi Rajan says, “Often, these suspects stay in detention camps for many years since the Foreigners Act mentions no specific time frame for deportation. The law should specify a time limit for deportation of foreign nationals.”

The Foreigners Act also doesn’t lay down a mechanism for deportation. So the Indian government follows a “push back” policy where foreign nationals are taken to the border and handed over to the Border Guards Bangladesh by the BSF. Around 134 declared illegal migrants were deported to Bangladesh from Assam in 2011-2012.

But Pillai feels that those deported will soon make their way back into India — as has been the trend all these years. “Unless the Centre shows the political will to implement laws to deal with illegal migration and also adopt an effective mechanism for their deportation, a deported Bangladeshi will keep coming back through different border points,” he says.

And Assam, at least, will continue to seethe over the issue.


2 Responses to "Laws have failed to check illegal immigration into Assam for years."

excelent study on assam issue thanks to provide such information.

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