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A divisive issue persists in Assam

The striking down by the Supreme Court of the contentious and deeply divisive Central legislation, the Illegal Migrants (Determination by Tribunals) Act of 1983, as unconstitutional may not mean the end to the more basic issues that lie behind the political necessity and opportunism that gave birth to the legislation. That the Act was on the statute books for more than two decades before it was found to run foul of the Constitution is just one indication of the profound contradictions that underlie the functioning of the executive, legislative, and judicial organs of the Indian state. The relatively lenient IMDT Act was made applicable solely to Assam while the more stringent Foreigners Act, 1946 applied in the rest of the country. The nub of the argument of the opponents of the legislation who constitute an important and influential segment of the State's population is that it unduly favours those `foreign nationals' (meaning Bangladeshis) suspected to be illegally staying in the State. The procedure for the three `D's, (detection, deletion of names from electoral rolls, and deportation) was seen to be hamstrung by the provision that cast the onus of proving a suspected person to be an illegal migrant on the state or individual who lodged the complaint. The procedure under the Foreigners Act is more summary and direct, with the onus being on the person impugned to be an alien to establish her or his Indian nationality. From an analysis of the working of the IMDT Act in Assam, the Supreme Court found that it had been wholly ineffective and working to the advantage of illegal migrants: of the 310,759 cases enquired into, only in 10,015 the persons concerned were declared illegal aliens and just 1,481 of them were physically expelled up to the end of April 2000. In contrast, in West Bengal where the Foreigners Act applies, 489,046 persons were deported between 1983 and 1998. The Court saw the presence of millions of illegal immigrants from Bangladesh as amounting to aggression against Assam and also as a cause of serious internal disturbances. The enactment was therefore found to be negating the Centre's duty under Article 355 to protect the State from external aggression and internal disturbance.

The IMDT Act was brought into being in the context of the ethnic, linguistic, and religious antagonisms that are rooted in history. They culminated in the infamous forced and bloodstained elections to the Assam Assembly of February 1983 and the accompanying carnage. However, the special circumstances of its birth far from `contextualising' the law, made its invidious features all the more glaring. In an unusual departure from its traditional reserve and going beyond legal reasoning, the Supreme Court has entered the debate on the politically divisive foreigners' issue in the State. Asserting that millions of Bangladeshi nationals had migrated illegally, it says their presence has made the life of the people of Assam "wholly insecure" and hampered the State's growth. The Court has further opined that as the rest of the country saw the State as a disturbed area, there were no investments and employment opportunities; and this in turn led to an insurgency. The immediate impact of the Supreme Court's ruling is that, as directed in the judgment, all existing Tribunals under the IMDT Act will have to be reconstituted under the provisions of the Foreigners Act. Finally, the judgment clearly marks a setback to the Congress, which has unwisely made the retention of the IMDT Act the central plank of its political programme in the State. However, the triumphalism of the opponents of the Act following its annulment has the potential for adversely affecting communal harmony — such as still remains.

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