The IMDT Act in Assam

H. Victor

In most parts of the world, including all but one state of India, the burden of proving whether one is an illegal migrant or not falls on the accused.  In Assam, the Illegal Migrants – Determination by Tribunals (IMDT) Act of 1984 requires the burden of proof to rest on the accuser who must reside within a 3-kilometre radius of the accused, fill out a complaint form (a maximum of ten per accuser is allowed) and pay a fee of ten Rupees.  If a suspected illegal migrant is thus successfully accused, he is required by the Act to simply produce a ration card to prove his Indian citizenship.  And if a case makes it past these requirements, a system of tribunals made up of retired judges will finally decide on deportation based on the facts. 

To put it mildly, in practice, the IMDT (Illegal Migrants-Determination by Tribunals) Act has been found to be highly impractical.  The overwhelming majority of illegal migrants are Bangladeshis who tend to settle in contiguous groups over large areas and when they reach a certain mass, nearby locals leave and those areas get “ethnically cleansed”.  It is therefore almost impossible to find any non-Bangladeshis living within a 3-kilometre radius and this also effectively prevents the police from being the detecting “accusers”.  Ration cards are easily acquired without any real proof of citizenship.  It would require tens of thousands of locals filing their ten allowed complaints each to bring actions against the hundreds of thousands of illegal migrants that have entered the state and only about a dozen or so named tribunals are expected to review all of these cases. 

In the two decades between 1962 and 1984 according to official records, over three hundred thousand illegal migrants were detected and deported from Assam [1].  In the next two decades, the number dropped to a mere fifteen hundred while the influx of illegal migrants from Bangladesh escalated.  It was almost as if the water tap had been shut off just as the fire was breaking out.  Most observers agree that the main reason for this dramatic reversal is the controversial IMDT Act of 1984, which replaced the Foreigners Act, 1946, in Assam and made it almost impossible to detect and deport illegal foreign migrants.

Following the bloody anti-foreigner agitation of the late 1970s and early 1980s led by the All Assam Students Union (AASU) which protested the presence of hundreds of thousands of illegal foreigners from Bangladesh in the electoral rolls, the people of Assam boycotted the 1983 elections.  In 1984, with no elected politicians from Assam to protest in Parliament, Indira Gandhi’s Congress-led government had little difficulty in pushing through the Act.  No leaders from other states objected and the IMDT Act was activated only in Assam.  The Act was pushed through mainly on the grounds that it provided special protections against undue harassment to the “minorities” that were affected by the unprecedented upheaval.  The net effect was that it protected the mainly Muslim settlers, who had swarmed into Assam from Bangladesh following the liberation of that country, from detection and deportation.  Not surprisingly, this same population made up the Congress Party’s most dependable vote bank. AASU eventually signed the Assam Accord with Rajiv Gandhi in 1984.  It split into a political party called the Asom Gana Parishad (AGP), which came into power in 1985 and an armed wing, ULFA, which went underground. 

The youthful and politically inexperienced AGP had come to power on the anti-foreigner platform but had maintained an excellent record in its AASU avatar in keeping communal issues out of the agitation and in maintaining a strictly legal, Constitutional line. Indeed, some of AASU’s senior leaders were Bengalis and Muslims.  Therefore, the Center’s concern for “minorities” rang hollow to the AGP and it objected to the obviously discriminatory nature of the IMDT Act.  However they were soon overwhelmed by the new experience of state governance and seemed to be placated when the Center undertook to “give due consideration to certain difficulties regarding implementation”.  The AGP went on to find out what every government in Assam has found since then—that it is not possible to form a functioning government in Assam without including the illegal but massive vote bank.

A unique aspect of the problem in Assam is the fact that almost all of the illegal Bangladeshi migrants in the state are Muslim whereas in the rest of the country, including West Bengal, they are a mix of Hindus and Muslims.  This has made any calls for the repeal of the IMDT Act take on a communal color, complicating the efforts of concerned politicians.  The Congress, Left Front and United Minorities Front recently met the tabling of the repeal in Parliament with a storm of protest.  Any action that is initiated against suspected illegal migrants in spite of the stringent requirements of the IMDT Act is usually met with protests from Muslim groups, both local and National, charging “harassment of minorities”.  In contrast, West Bengal which also has a massive illegal migrant problem from Bangladesh but in which The Foreigners Act holds sway instead of the IMDT Act, has detected and deported over half a million illegal migrants with barely a whimper from any quarter [2].  In the meantime, the influx of illegal migrants into Assam continues unabated.  The social and economic fabric of the state and the entire northeast has been affected and it is only a matter of time before the demographics of the state will change forever.  It is also no secret that militant forces like the ISI depend on these illegal migrants to carry out their hostile designs. Illegal settlers now heavily populate many of Assam’s districts, including the ones that separate the entire northeast from India in the tenuous Chicken’s Neck area.  It would be naïve to believe that these people will not demand to become part of their native Bangladesh in the foreseeable future, thereby cutting off the northeast and all its valuable resources from India.

There are issues regarding the constitutionality of the IMDT Act itself since it goes against an April, 2002 Supreme Court decision that foreigners cannot claim the right to Indian citizenship on the ground that they are enrolled in voter lists, have ration cards and that they have been living here for a long time.  There is also the issue of Article 14, which guarantees “equality under the law” uniformly throughout India.  However, simply repealing the Act alone may not be sufficient if it is not accompanied by other measures.  For example, amendments must be made to the Citizenship Act, 1955, specifically sections 3(1) concerning citizenship of those born in India of illegal immigrants and 6A concerning the special provisions as to citizenship of persons covered by the Assam Accord, 1985.  There are other legal issues that complicate the picture including Rajiv Gandhi's 1985 "pardon" of all Bangladeshis who had come in before 1985, which was extra-constitutional and inconsistent with Article 6, which allows the Government to register only those who came in by January 26, 1950.  The Constitution does not give the Government the power to gift Indian citizenship en masse to foreigners.  And without doubt, there is a danger that the rights of genuine Indian citizens, including minorities, may be jeopardized when detection is taken up in earnest. But the Constitution of India amply provides for the protection of these rights through institutions like the Human Rights Commission, the Minorities Commission, and the Supreme Court.

There will almost certainly be a humane and practical solution to this apparently intractable problem someday.  The stakes are too high for this not to be the case.  But even though we cannot see that solution yet, we should be determined in our belief that it lies within the ambit of the Indian Constitution and not in some convenient extra-constitutional remedies.  However, none of these difficulties should come in the way of implementing the law by detecting and disenfranchising illegal migrants as a first step.  It is clear that the IMDT Act has not been effective in doing this is Assam. 

Suggested reading:

The Foreigners Act, 1946: http://www.helplinelaw.com/bareact/index.php?dsp=foreigners

The IMDT Act, 1983: http://www.northeastvigil.com/facts/nedocs/docimdt.htm

The Citizenship Act, 1955: http://www.indialawinfo.com/bareacts/citi.html#_Toc501347983

The Assam Accord, 1983: http://www.northeastvigil.com/facts/nedocs/docasac.htm

“National Security is being seriously threatened”. A Rediff interview with Lt Gen (Retd.) S K Sinha:

http://ushome.rediff.com/news/2000/jul/26inter.htm

“A case for Bangladeshi immigrants in India”.  Utpal Saikia.

http://www.iussp.org/Bangkok2002/S15Saikia.pdf

References: