Illegal immigration in Assam and dangerous consequences

Justice B.K. Sharma

(The writer is a former Judgeof Gauhati High Court. He can be reached at biplabsharmaj@gmail.com)

“This being the situation, there can be no manner of doubt that the State of Assam is facing ‘external aggression and internal disturbance’ on account of large-scale illegal migration of Bangladeshi nationals.” – Supreme Court of India.

It was in 1979, bye-election was necessitated in Mongaldoi Con-stituency on the death of Hiralal  Patowary, who was elected to the Lok Sabha in the 1977 election. There were about 6 lakh electorates in that constituency. Objections were raised against some 70,000 names. Students took active parts, and pursuant to objections, etc., it was found that about 45,000 foreigners’ names were included in the electoral rolls of that constituency. With such detections, the All Assam Students’ Union (AASU) demanded a thorough scrutiny of all the constituencies for the detection of foreigners whose names were included in the electoral rolls. The AASU called a meeting of all the like-minded organizations. It was decided to give a wider base to the agitation. To that purpose, All Assam Gana Sangram Parishad (AAGSP) was formed on 27-08-1979 at Dibrugarh with representatives of AASU and other local political parties. Late Bhrigu Kr. Phukan (AASU), Jatin Goswami (Axam Xahitya Xabha), and Shri Atul Borah (PLP) were chosen as conveners. A rally was organized and held on 06-11-1979, followed by a weeklong satyagraha ending on 17-11-1979. Defying the demand for postponement of the election till the correction of the voter list, the government decided to hold the election. That was the starting point of the Assam Agitation on the foreigners’ issue.

The issue relating to illegal immigrants from erstwhile East Pakistan, now Bangladesh, in Assam is a vexed problem prevalent not only post-independence, but even from the days of pre-independence. It was in 1931, when the then Census Superintendent of Assam, Mr. C.S. Mullan, ICS, wrote in his Census report of Assam, “...it is sad, but by no means improbable that in another 30 years Sibsagar district will be the only part of Assam in which an Assamese will find himself at home.” Ironically, about ten years back, when around 2000 declared foreigners in Sibsagar district did the act of vanishing, the Police Department of Government of Assam had to issue public notice in the newspaper depicting their names for identification and apprehension. If this could happen in the district of Sibsagar, it can well be imagined as to what is in store for the indigenous people of Assam.

Mr. R.B. Vaghaiwalla, who had served as Deputy Commissioner in various districts of Assam during Gopinath Bordoloi’s post-independence government, recalled the influx of East Pakistanis, thus:

“I have personally seen hundreds of persons coming by trains during the first months I held the charge of Goalpara district. I had the same experience as the Deputy Commissioner of Cachar during 1948-9 when hundreds of Muslim immigrants travelled by the hill section railway from Badarpur to Lumding, in order to go to the Assam valley for settlement.”

Gopinath Bordoloi, in his statement in the Assam assembly on 14th March, 1950, made the following significant observations in reference to those Muslims who had recently migrated from the then East Pakistan:

“They have all along been under the influence of Muslim League and were supporters of Pakistan idea. Such of them as are still Pakistan-minded and would work for Pakistan, would do well to be in Pakistan. There may be others who would like to settle down and make Assam their home. They can only do this by being good Assamese and good Indians. They will harmonise their interests with those of the children of the soil, including the tribal people, obey the law of the land and follow policy laid down by Government for the time being. To imagine that they could live otherwise than by doing so, to say the least, is unrealistic. No power outside India can help them to do so. It would be well, therefore, if they will cease connections with Pakistan politicians and their agents in the grab of Mullahs and Maulanas. Even for spiritual administration, they need not go to Pakistan sources since there are almost as many Muslims in India as in Pakistan…The privilege of sharing joys and glory is conditional on their wholehearted readiness to share the sorrows and difficulties. It is for them to ponder over these matters deeply and make their choice over these.”

In September 1978, the then Chief Election Commissioner of India, Mr. S.L. Sakdher, made a significant observation in reference to Assam. “…a stage would be reached when that state would have to reckon with the foreign nationals who may, in all probability, constitute a sizeable percentage, if not the majority of the population of the state. Another disturbing factor in this regard is the demand made by the political parties for inclusion in the electoral rolls the names of such migrants who are not Indian citizens, without even questioning and determining their citizenship status. This is a serious state of affairs…”

The Assam agitation, referred to above, continued for six long years. In the process, 860 people attained martyrdom, and several thousand sustained injuries, both bodily and mentally. The students’ community sacrificed a year of their academic session amidst the movement. Eventually, the Assam Accord was signed on the night of 15th August, 1985. As against the cutoff year of 1948, and to be precise, 19th July, 1948, and 31st December, 1950, pursuant to the Nehru-Liakat Ali Pact, and 1951 as per the NRC/Census prepared for Assam, 25th of March, 1971 became the cutoff date for detection of foreigners in accordance with the provisions of the Foreigners Act, 1946, and the Foreigners (Tribunal) Order, 1964. As per the Accord, there is another stream of foreigners from 01.01.1966 to 24.03.1971 (both dates inclusive) that were also to be detected as per the provisions of the aforesaid Act and order. Such persons are not to be deported, and the only consequence of the said foreigners within the stream of 01.01.1966 to 24.03.1971 is that their names are to be deleted from the voter lists with consequential debarment from exercising the voting rights for 10 (ten) years, upon expiry of which their names would again get restored to the voter lists. Thus, practically, detection, deletion of names from the voter lists, and deportation of the declared foreigners, that too upon a declaration by the Foreigners Tribunal as per the provisions of the aforesaid Act of 1946 and Order of 1964, became effective from 25.03.1971.

Prior to the signing of the Assam Accord, the procedure to be followed for the detection of illegal migrants was as per the provisions of Illegal Migrants (Determination) by Tribunals Act, 1983 (IMDT Act, 1983). As per the provisions of the said Act, burden of proving a person to be an illegal migrant was on the complainants with the provision of imposition of fine upon failure to do so. Provisions were so stringent that it was virtually impossible to identify a foreigner. On the other hand, Section 9 of the Foreigners Act, 1946, clearly provides for shifting the burden of proof upon the suspected foreigner once it is alleged that he/she is a foreigner. The Act was put to challenge, and the Supreme Court, by its judgment as reported in (2005) 5 SCC 665 (Sarbananda Sonowal vs. Union of India), struck down the Act as being unconstitutional. Defying the said judgment, when the then Government brought in two pieces of legislation virtually once again bringing back the IMDT Act, the Supreme Court heavily came down on the Government and struck down the said two pieces of legislation by its judgment as reported in (2007) 1 SCC 174 (Sarbananda Sonowal vs. Union of India). There are significant observations in the said two judgments relating to Assam in respect of illegal Bangladeshi migrants, which are quoted below:

Sarbananda-I Judgment:

“63. This being the situation there can be no manner of doubt that the State of Assam is facing ‘external aggression and internal disturbance’ on account of large-scale illegal migration of Bangladeshi nationals. It therefore, becomes the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose.

“70. As mentioned earlier, the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of North-Eastern region. Their presence has changed the demographic character of that region and the local people of Assam have been reduced to a status of minority in certain districts.”

Sarbananda-II Judgment:

“64 …The earlier decision in Sonowal I’ has referred to the relevant materials showing that such uncontrolled immigration into the North- Eastern States posed a threat to the integrity of the nation. What was therefore called for was a strict implementation of the directions of this Court earlier issued in Sonowal I’ so as to ensure that illegal immigrants are sent out of the country, while in spite of lapse of time, the Tribunals under the 1964 Order had not been strengthened as directed in Sonowal I…”

“65. It appears that the 2006 Order has been issued just as a coverup for non implementation of the directions of this Court issued in Sonowal I’. The Order of 2006, in our view, is clearly unnecessary in the light of the 1946 Act and the Orders made thereunder and the directions issued in Sonowal I’. It does not serve the purpose sought to be achieved by the 1946 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 of India highlighted in Sonowal I…”

In July 2004, in response to a question pertaining to the deportation of illegal Bangladeshi migrants, the Minister of State, Home Affairs, submitted a statement to the Parliament indicating therein that the estimated number of illegal Bangladeshi immigrants in India as of 31.12.2001 was 1.20 crores, out of which 50 lakhs were in Assam. Again, in the affidavit of the Government of India filed in W.P. (C) 562 of 2012; 274 of 2009 and 876 of 2014, relating to updating of NRC of 1951 on the basis of the Assam Accord, it was stated thus and quoted in the order of the Supreme Court dated 17.12.2014:

“11…in this context, it is submitted that detection of illegal migrants, who belong to the same ethnic stock as Indians is not an easy task. However, large scale illegal migrants from Bangladesh have not only threatened the demographic structure of the areas but have seriously impaired the security of the nation, particularly in the present circumstances. The need for expeditious identification of illegal migrants is more pressing now than ever. It is not a matter of dealing with a religious or linguistic group. It is question of identifying those who illegally crossed over the border and continue to live in India contrary to the Indian law and the Constitution.”

Census records categorically suggest that until the 1970s, such migration continued in many areas, resulting in radical demographic transformation of the state. In fact, the change in demography mapped by the census records suggests the increase in illegal immigrant majority districts/subdivisions from 2 (two), namely Dhubri and Hailakandi, in 1971, with the continued influx of illegal immigrants; presently, as per the 2011 census, there are 11 such districts where such immigrants are in the majority. As against their population of 24.6% in 1971, in 2011 the same stood at 34.22%. Further, as noted above, as against the original two illegal immigrant majority districts (Dhubri and Hailakandi), it became four in 1991, followed by six in 2001 and nine in 2011 (Barpeta, Bongaigaon, Darrang, Dhubri, Goalpara, Hailakandi, Karimganj, Nagaon, and Morigaon). Now it is said to be many more such districts with a majority of illegal migrants.

It may not be out of place to mention here that when some of the foreigners’ cases came up before the Hon’ble High Court in the year 2008, the court noticed that there were no well-defined policies and procedures for deleting the names of the declared foreigners from the voter lists to keep them in detention till such time they are deported to Bangladesh, etc. It was pursuant to some of the directions of the Hon’ble High Court that efforts were made to delete the names of the foreigners from the voter lists and to keep them in the detention camp. However, pursuant to a direction of the Hon’ble Supreme Court, such detainees are required to be released after their detention for two years. Thus, virtually the situation is, as it was before, because in the absence of any restriction, such released detainees can easily roam around, get married, and procure children in as many numbers as they wish. Eventually their names are enrolled in the voter lists. It is in this context that the High Court, in one of its judgments reported in 2008 in the Gauhati Law Times, had to remark that they are the kingmakers.

Significantly, and adding insult to the injury, it is only in the state of Assam that illegal migrants are required to be notified as such through a long-drawn process by way of legal proceedings in the Foreigners Tribunals for which the jurisdictional Superintendent of Police is required to make reference to the Tribunal. The opinion of the Foreigners Tribunal can be challenged invoking the writ jurisdiction of the High Court, firstly before the Single Judge and thereafter before the Division Bench and finally by way of appeal to the Supreme Court. Such a long-drawn procedure is based on the provisions of the Foreigners Act, 1946, and the Foreigners (Tribunals) Orders, 1964. On the other hand, in the rest of the country there is no Foreigners Tribunal, and the task of detection and deportation of foreigners is an executive function, and no long-drawn proceedings are involved like that of Foreigners Tribunals as in the case of Assam.

After the aforesaid Assam Accord, the Citizenship Act 1955 was amended, inserting section 6A specifically for Assam, fixing the cut-off date as 25-03-1971 for detection of foreigners, as against 1951 being the cutoff year for the rest of India. Such a provision was challenged before the Hon’ble Supreme Court with the plea that the same contravenes the constitutional provisions. However, the Constitution Bench of the Apex Court, by its majority judgment passed on 17th October, 2024, has upheld the said provision, bringing an end to the issue.

Having regard to the above burden of foreigners from 1951 to 1971 on Assam, Clause 6 of the Assam Accord provided for constitutional, legislative, and administrative safeguards to the Assamese people to protect, preserve, and promote the culture, social, linguistic identity, and heritage. For 35 long years, no effort was made to implement not only Clause 6 but practically the entire Assam Accord. It was only on 15th July 2019 that the Govt. of India in the Ministry of Home Affairs constituted a high-level committee under the chairmanship of the author with certain terms of reference towards the implementation of the said clause. As requested, the committee submitted its report dated 10-02-2020 to the then Chief Minister of Assam in the presence of the entire cabinet on 22-02-2020 for onward transmission to the Central Government.

It is trite to state that the non-implementation of the guarantees under the Assam Accord continues to facilitate an illegal immigration system that enables the movement of migrants and continues to have material bearing on the lives of the people of Assam.

Recently the Citizenship Act, 1955 has been amended with a view to granting citizenship to the minority communities such as Hindus, Sikhs, Buddhists, Christians, Jains, and Persis migrating from Pakistan, Afghanistan, and Bangladesh due to religious persecutions in those countries. As per the said amendment, those persons migrating to India up to 31-12-2014 will get Indian citizenship. It was in that kind of a situation that the anti-Citizenship Amendment Act (CAA) movement came into being, even to the extent of the death of some youths participating in the movement. However, irrespective of CAA, such a provision is already there in the Immigrants (Expulsion from Assam) Act 1950, which was promulgated when it was brought to the notice of the Central Government that there had been a large-scale influx of the then East Pakistanis to Assam. However, the proviso to section 2 of the said Act categorically provides that there shall be protection of those who have migrated to Assam because of civil disturbances. Thus, if anybody takes the plea that he has migrated to Assam after 1950 because of civil disturbance, he cannot be deported. Thus, irrespective of CAA, minority communities migrating to Assam because of civil disturbance, which can take into its fold religious persecutions, are well protected under the provisions of the Immigrants (Expulsion from Assam) Act 1950. This Act still holds the field and specifically finds mention in the Sarbananda Sonowal-I judgment and the aforesaid recent judgment upholding Section 6A of the Citizenship Act, 1955.

It is in the above contextual background that the right, dignity, privilege, and protection of the cultural heritage of the indigenous people of Assam will have to be found out. The Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations on 10-12-1948 towards ensuring human rights and freedom in all fields—political, social, cultural, civil, standard of living, education, etc.—life, liberty, security, etc. In September 2007, the General Assembly of the United Nations adopted a resolution on the Declaration on the Rights of Indigenous Peoples, saying in Article 1 as follows:

Indigenous people have the right to the full enjoyment, as a collective or as individuals, of all the human rights and fundamental freedoms as recognized in the charter of the United Nations.

We have already seen as to what extent the people of Assam have compromised in the sphere of its very existence by accepting 25-03-1971 as the cut-off date for Indian citizenship, contrary to the cut-off date of 31-12-1950 for the rest of the country. It was in that context that Clause 6 was incorporated in the Assam Accord towards preserving political, social, and cultural rights for the indigenous people of Assam by making adequate provisions. An effort was made to do so while undertaking the task entrusted to the High Level Committee on clause-6 of the Assam Accord under the chairmanship of the author. Though Clause 6 sought such protections for Assamese people, on a broader interpretation of the said term, such protections have been sought for all the indigenous people of Assam. Various measures have been suggested towards protecting and enforcing the said rights. It is now for the implementing agencies to adopt such measures as may be deemed fit and proper in the facts and circumstances discussed above.

Above are some of the significant aspects of the vexed foreigners’ issue in Assam, coupled with a different yardstick and parameter for determination of Indian citizenship in Assam vis-à-vis the rest of the country. The author, both as a judge and Chairman of the High-Level Committee on Clause 6 of the Assam Accord, was confronted with the issues discussed above and has tried to give vent to some of his thoughts generated during his tenure as such and afterwards. The dangerous consequences of large-scale illegal migration from Bangladesh both for the people of Assam and for the Nation as a whole, need to be emphatically stressed. No misconceived and mistaken notions of secularism and brotherhood should be allowed to come in the way of doing so.