IMDT (Assam) Judgement Violative of HumanRights Norms
Shanti Bhushan
[Here are excerpts from an article by Advocate Shanti Bhushan, who rightly exposes the mindset of some judges of the apex court which is insensitive to human rights norms. The judgment is based on a political ideology, which is spreading xenophobia and wants to develop a sense of siege among Indians not only of increasing Muslim demographic pressure but of ‘external aggression’ and secessionism – Ed.]
The problem of illegal migrants into India, particularly from Bangladesh, has been a longstanding and vexed political and legal one, especially since 1971 when there was a large-scale influx of Bangladeshi refugees into India. However, a large number of Bangladeshis continued to enter India even after 1971 in search of jobs, through a long and porous border.
Prior to 1983, the detection and eviction of those foreigners was done under the Foreigners Act 1940, which gave virtually unbridled powers to the authorities under the Act, mainly the police, to designate and deport him. Under the Foreigners Act, if you were alleged to be a foreigner by the authorities, the burden of proving that you were not a foreigner was on you. This was an impossible burden to discharge for most people in the country, who had no birth certificates and no land holdings.
Taking note of these problems, in 1983, Parliament enacted the Illegal Migrants (determination by Tribunals) Act (IMDT Act), which as the title suggests provided for judicial tribunals to determine disputes about Citizenship which might arise under the Foreigners Act.
Though the Act itself was for the entire country, it was initially made applicable only to Assam and was to be made applicable to other parts of the country whenever the government notified it for those parts. The government’s statistics showed that in the 20 years of the operation of the IMDT Act, about 80 per cent of the complaints were rejected by the screening committee, itself. Out of the remaining 76,228 cases referred to the Tribunals during these years, only 21,169 were disposal off by the Tribunal till 2003. Out of these, 11,636 persons were 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 felt that the IMDT Act was coming in the way of expelling the foreigners that they wanted to expel. They began demanding that the Centre repeal the Act and thus give a free hand to the government and the police to expel anyone that they wanted under the Foreigners Act without any judicial determination of the rights of those that were sought to be expelled.
Soon after the BJP government came to power at the Centre in 1998, it began to resonate the demand of the AGP and the AASU. As part of this campaign, the BJP-appointed Governor of Assam, Gen S.K. Sinha, sent a shrill report to the government in November 1998, which ended thus, “The silent and invidious demographic invasion of Assam may result in the loss of the geo-strategically vital districts of lower Assam. The influx of these illegal migrants is turning these districts into a Muslim majority region. It will then only be a matter of time when a demand for their merger with Bangladesh may be made. The rapid growth of international Islamic terrorism may provide the driving force of this demand.”
In 2002, a former president of the AASU, Sarbananda Sonowal filed a writ petition in the Supreme Court seeking a declaration that the IMDT Act was unconstitutional. Meanwhile during the pendency of this case, the police in Delhi, using their powers under the Foreigners Act were engaged in a regular racket of extorting money from poor Bengali Muslims living in slums. An investigative report produced by a very eminent group of citizens calling themselves the “Citizen’s campaign for preserving democracy”, indicated how the local
Police arbitrarily picked up poor Bengali Muslims living in slums under the Foreigners Act, who were then detained in inhuman conditions at a Municipal Corporation detention centre till there is a train bogie-load of them. They are then taken to the Bangladesh border, dispossessed of whatever possessions they have, and asked to run across. In the words of the report, “When the people are forced across the border, all their possessions are taken away, along with any signs that may point to their Indian origin. They are warned that if they turn back, they will be shot as infiltrators. As parting advice, they are also cautioned to tell the Bangladeshi Rifles, if they are caught across the border, that they are returning from some work or wedding from a particular village. Thus poor people, deliberately bereft of identity and citizenship, have no option but to again take the path of illegality merely in order to survive.”
Meanwhile, in 2001, Abu Hanif, a poor Bengali Muslim who was detained by the police by branding him a Bangladeshi who had returned from Bangladesh six months previously, filed a petition in the Supreme Court, seeking the application of the IMDT Act to Delhi. He pointed out that he had an Indian passport for the last 15 years and had been registered as a voter in Delhi for the last 15 years. He had all the other documents to prove his citizenship, including ration cards, jhuggi cards etc. Yet, the police claimed that he had come from Bashirhat in Bangladesh only 6 months ago. And to top it all Bashirhat was in West Bengal, not in Bangladesh! He therefore asked for the IMDT Act to determine his claim and not be left at the mercy of police officers who had even earlier tried to extort money from him. Though Abu Hanif’s petition was ordered to be heard along with Sonowal’s petition, when the time came for them to be heard, the court decided to first hear arguments only on Sonowal’s petition, saying that the other petitions would be heard only after Sonowal’s petition was decided. However on a persistent plea by Abu Hanif’s lawyer, Mr. Shanti Bhushan, that the decision in Sonowal’s case would affect his case, the court gave a brief hearing to him.
On 12th July, a 3-judge bench of the court allowed Sonowal’s petition and declared the IMDT Act and the Rules framed under it unconstitutional and void. The judgement written by Justice G.P. Mathur opines that the Act violates Art 355 of the Constitution which mandates the Central government to protect the States against external aggression and internal disturbance! It goes on to say that the onerous provisions of the Act and Rules makes it virtually impossible to expel foreigners and therefore the Act encourages infiltration of illegal migrants from Bangladesh, which amounts to external aggression against India! Certainly an inspired, original and breathtakingly audacious interpretation of Article 355 of the Constitution. While giving this interpretation of Article 355 of the Constitution, I wonder whether the honorable judges were aware of the implications of what they were saying. For example, India has a treaty with Nepal which permits Nepali citizens to come and freely stay in India, without visa and vice versa. Will this treaty not be similarly unconstitutional on the principle that it encourages Nepali migration to India and thus promotes external aggression by Nepal?
The Court also ruled that the applicability of the IMDT Act only to Assam made it discriminatory and violative of Article 14, since other states did not have to adhere to the more stringent provisions of the IMDT Act before pushing out persons designated as foreigners. In saying so, the court completely overlooked 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 notified it for other parts of the country other than Assam. But that was an executive lapse and the other pending petitions sought precisely that direction from the court- that the government be directed to notify the IMDT Act for other parts of the country. If the Tribunals under the Act were not acting expeditiously (which no court in India ever does), the judgement could have directed the government to take whatever steps were required to remedy those.
In fact the Act itself merely provides a judicial remedy to a person who is being thrown out of the country by the police on a mere allegation that he is a foreigner. This is not merely unexceptionable, but something the court would itself be expected to require the State to do even otherwise. In fact one would have expected the Supreme Court, which is constitutionally mandated, to protect the fundamental rights of citizens, to have declared the Foreigners Act unconstitutional, insofar as it allows the authorities to throw out citizens alleged to be foreigners, without a judicial determination. Instead, the court says that, “ A deep analysis of the IMDT Act and the Rules made thereunder would reveal that they have been purposely so enacted or made so as to give shelter or protection to illegal migrants who came to Assam from Bangladesh on or after 25 March 1971 rather than to identify and deport them. “Mr. Shanti Bhushan had submitted that a citizen cannot be thrown out of the country without a judicial determination of his rights and therefore the provision under the Foreigners Act which allow the authorities to do this would be unreasonable and thus violate his fundamental rights to liberty. To this the Court replies that no rights of an illegal migrant are violated when he is expelled from the country. But that is begging the question. How can you presume that he is an illegal migrant without a judicial determination of this question?
A serious flaw found by the Court in the IMDT Act was that it did not place the burden of proving his Indian citizenship on the person accused of being a foreigner, unlike in the Foreigner’s Act. This, the court said was completely unreasonable, since the person accused has the best means of knowing and proving whether he is an Indian or Foreigner. But that can be said for an accused in a criminal offence as well. After all, he has the best means of knowing whether he has committed the crime or not. So he should be required to prove his innocence. Yet it is well established in our jurisprudence that as accused is presumed to be innocent unless proved guilty. The question of burden of proof is relevant only in a situation where there is no evidence of a criminal offence, but the court says that if there is no evidence either way about a person alleged to be a foreigner, he will be presumed to be a foreigner. Consider how this will translate in practice in India. Most people in India do not have any document which could ‘prove’ their Indian citizenship. Abu Hanif had a passport, a voter identification card, ration card etc. Yet he was declared by the police to be a Bangladeshi. But most people in the country do not have any of these documents or any ‘official document’ which would establish their Indian Citizenship. Should they be thrown out of India in these circumstances? This would indeed be the import of this judgement.
In all 30 years that I have observed the Supreme Court, I have yet to come across a judgement that is so illiberal, authoritarian, indeed fascist and communal in its mindset, uses such a fantastic interpretation of the Constitution, betrays such ignorance of basic legal principles and showed such a lack of sensitivity of human rights and basic human values. The ball is now in the court of the government and people of this country. Will they tolerate such a slur on the Constitution?g
[Courtesy: Quarterly Human Rights Today, July-September 2005]