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]