Unwanted People: Illegal Immigration in Assam and State Laws
Unwanted People: Illegal Immigration in Assam and State Laws
Immigration in Assam:
Migration in undivided Assam has happened in a number of waves. It can be traced back to 13th century when the Ahoms came from Northern Thailand. This has been followed by successive waves of migration.
Scholars have viewed British also as outsiders, followed by Tribals from Bihar and Jharkhand who settled as Tea Plantation workers and the phenomenon is going on with East Bengal peasants, and traders from other parts of the country.
The northeastern states of Assam became a part of the British India under the Treaty of Yandaboo of 1826. These states were very sparsely populated. The expansive fallowland showed potential revenue.
This led to the Britishers encouraging the peasants from East Pakistan to settle in Assam. The pull factors that worked in favour of the large scale immigration is that while East Pakistan was under Permanent Settlement system, the Northeastern states were under Ryotwari system. This was also aggravated by the fact that the density in East Bengal was very high. Hence there was a steady movement of people from East Bengal to Assam. The Scheduled Districts Act of 1874 marked certain hilly areas as backward tracts and hence not available to migrants for settling down. This concentrated the settlers in the Brahmaputra and Barak Valley.
The Assamese speakers gradually felt pushed against the wall because of the fear psychosis of being turned into a minority in their own state. Their fear was not unfounded for it goes back to Assam being treated as an extension of Bengal and Bengali being made the official language.
For the first time Assam was incorporated in Bengal in 1838 and separated in 1874. The second time was when Bengal was partitioned in 1905, Assam was clubbed with East Bengal. This initiated a number of educated Bengalis from Sylhet settling in Assam. That fear of being outnumbered by Bengalis and being robbed of their jobs by educated Bengalis have always been there at the back of the mind of Assamese people. This fear manifested itself often in violent outbursts like the Nellie Massacre of 1983 when local tribals bludgeoned to death around 3000 Muslims. The victims were mainly women and children.
The specific issue of immigration in northeast need to be contextualised. Because of its geographical contiguity, migration to this part is nothing new.
The Britishers encouraged East Bengal peasants to settle down on the fallow lands. This policy was continued till 1939-1940 under Sir Saadullah's policy of "Grow More Food". These people were mostly poor Muslims. During the communal riots of partition, Muslims on both eastern and western frontier fled to East and West Pakistan. As a result their names were not registered in the National Register of Citizens which was formed in 1951. It was only after Nehru-Liaqat Pact of 1952 that these people started coming back in a trickle. Some of their names got registered in 1961 Voters' List while others in the 1966 Voters' List. This increased the percentage of Muslim Voters as most who fled were Muslims. This sudden increase further fed into the fear of a silent invasion by outsiders.
Immigration to Invasion:
There was a gradual change in how a normal phenomenon of movement of people over a geographically contiguous and landlocked area came to be perceived over a period of time. Till the late 1960s when there was a fight for Assamese being made the state language, the migrant Bengalis sided with the Assamese speaking population against the Bengali speakers of Barak Valley who migrated from Sylhet and Mymensingh district of East Bengal. The Migrant population who settled on low lying valley areas because of the introduction of the Line System in 1820s accepted Assamese language and culture. They called themselves Na Asamiya or Neo Assamese. These people recorded Assamese as their mother tongue during Census. This brought up the percentage of Assamese speakers to greater than 60% and tilted the balance in favour of Assamese speakers. At this juncture the polarisation was between Assamese Speakers and Bengali speakers on the question of language and also the question of jobs.
However over a period of time the alliance changed. The polarisation slowly took place between Assamese and Muslim immigrants. And the question of identity of who is truly an Assamese or "Khati Axomiya" took the centre stage.
This new development in the 1970s went back time and again to the controversial report of C S Mullan, a Census official in 1931. His report pointed to the changing demography of Assam. Amalendu Guha sees him as being the initiator of hate campaign by using the word 'invasion' in place of 'migration'. This was further worsened when the Assam Movement demanded expulsion of illegal immigrants. Although it initially did not have communal underpinnings, over a period the targeted people seemed to be the Muslims. This culminated in the Nellie Massacre of 1983 against the backdrop of elections.
The Assamese and the plain tribes like Lalung boycotted the elections in the line of Assam Movement. But the Bengali Hindus, Bengali Muslims and Bodos supported it. Congress under Hiteshwar Saikia won an overwhelming majority.
But the Nellie Massacre where intoxicated Lalungs were incited to kill around 3000 settlers from East Bengal brought to surface the gravity of the situation. The Central govt cancelled the elections and paved way for negotiating a solution. Keeping aside the fact that nobody was brought to book for the Nellie Massacre, the Assam Movement ended with the signing of the Assam Accord in 1985. The Accord had clause that was supposed to look into the problems of Illegal Migration (Determination by Tribunals) Act, 1983. I will look into the legal contours of the Act in the later part of the paper.
The Nellie massacre gave a communal undertone to the illegal immigration question. This alienated the Assamese Muslims who sided with the Assamese Hindus initially. This was worsened when the BJP post 1991 took up the issue. The immigrants in the Right Wing party's vocabulary were nothing else but Infiltrators. Their portrayal was made within the paradigm of national security rather than the Push and Pull factors of Developmentalism. The insider-outsider dichotomy was strengthened and the movement was rendered an aggressive invasionist connotation. T
he BJP took up this "infiltrators" issue post 1991 and made it a central issue. They gave it a further communal tone by demanding that while Hindu Bangladeshis who started migrating owing to islamisation of the country, should be given the status of political refugees, the Muslims should be deported. This was further manifested in the use of the term 'Miyan' to imply to the immigrants.
This communalisation also happened at the backdrop of the failure of Asom Gana Parishad which spearheaded the Assam Movement. Over a long period they failed to implement the provisions of the Accord. The scenario of gross developmental deficit did not change for the better. This disillusioned a lot of people who moved towards BJP who sounded staunch when it came to 'othering' the Muslims. Post 1998 elections BJP riding on this wave of infiltration managed to penetrate the Barak Valley which already had a prepared ground for communal tension going back to the days of Sylhet being made a part of India. BJP also had to capitalise this issue because the Ayodhya issue of Ram Janambhoomi could not have much fertile ground in Northeast.
Foreigners' Act, 1946:
To tackle the problem of foreigners the newly independent Indian state took recourse to the colonial act of 1946. This Act confers certain powers on the central govt with reference to foreigners. In great details it mentions that people who are not citizens of the country should not enter the country, and if they do what recourse the state should take. This act originally did not provide for the convicted to be heard in a court. So to address this, after the country got independence a Foreigners' Tribunal Order,1964 was passed which provided that if the central govt feels then they can constitute a bench of judges to hear the case of a person convicted to being a foreigner. But such benches were rarely formed.
This act provides a lot of power to the state machinery and has often been used arbitrarily. Its misuse have been in cases like Operation Pushback which was initiated by the P V Narasimha Rao led Congress Govt in 1992. This aimed at the Bengali Muslims Settlers in Delhi. Under the same Act West Bengal have been able to deport half a million migrants within a span of few years. This act puts the onus on the convicted to prove otherwise failing which he is deported. The punitive measures and fines are stringent in this case.
Illegal Migration (Determination by Tribunals) Act, 1983:
To address the misuse of Foreigners' Act which often harassed Indians, the Congress Govt under Indira Gandhi introduced the Illegal Migration (Determination by Tribunals) Act, henceforth IM (DT), in 1983. This act was aimed to curtail frivolous complaints made to harass Indians on the basis of mere suspicion. This act was different from the Foreigners' Act in a significant way: this act placed the onus on the complainant to prove that a person was a foreigner. The complainant has to file a complaint by paying a nominal fee. He should be from the same place as the convicted (residing within 3 kms) and there was to be a limit to ten complaints that he can file. Although this Act was formulated for the whole country to eventually replace the Foreigners' Act, it was notified only in Assam where it was functional till 2005.
Under the IM (DT) Act the illegal immigrants were to be deported. In the Assam Accord it was decided that 25th March, 1971 should be the cut off date. People who came after 1971 under IM(DT) should be deported. But people who came after 1966 and before 1971 should be under the Foreigners' Act disenfranchised for a period of 10 years. After that period they can apply to get re enfranchised. But the Indira-Mujib Pact of 1972 mentioned that the newly formed country of Bangladesh is not responsible for people who migrated to India before 1971. This was a matter of contention for the Assamese people who felt that the changed demographic composition is disadvantageous to them. The politics of numbers went haywire. Due to absence of documents of immigrants there was no exact numerical data regarding the number of immigrants.
It is interesting to note how the numbers game was played out. While on the one hand L K Advani would quote figures like there are 1.5 crore Bangladeshis of which 50 lakhs are in Assam, others would say the growth rate of Assam was always higher than the average India and post independence it was mainly Bengali Hindus and not Bengali Muslims who came to India. More reasonable estimates were, out of the total migrants in Assam only 40% were Bengali Muslims from East Bengal and others were Hindi and Nepali speaking people.
But under IM (DT), 423,021 cases were registered, 65000 cases were dealt with, 23420 cases were disposed and till Jan, 2005 12424 people were declared illegal immigrants and only 1538 people were actually deported acquiring huge costs. This was interpreted differently in different camps. While for Congress it meant that it saved a huge number of genuine Indians from possible harassment, for AGP the meagre number of actual deportees point to the gross ineffectiveness of the Act. So in 2000, Sarbananda Sonowal, an ex-President of AASU and an AGP MP filed a PIL in the Supreme Court to scrap the law. Now AGP govt in power also filed an affidavit demanding the same by stating that the act was discriminatory as it was only implemented in Assam but not in states like Meghalaya, Tripura facing similar problems. West Bengal could deport a bigger number of people because of foreigners' act. But when Congress came to power in 2001, they submitted a new affidavit which said that the act was completely constitutional. Now a closer look at the judgement shows some kind of acceptance of the fear psychosis of the Assamese community, as it quotes a contentious report filed by BJP appointed Governor of Assam Lt. Gen S. K. Sinha who stated that in a few years the Assamese will feel at home only in the Sibsagar dist and termed migration as 'a silent and invidious demographic invasion'. It was also interesting that Sonowal who headed AASU and was associated with Assam Movement which stood for sub nationalism and questioned the pan Indian identity, sidelined such concerns and took up the issue as an Indian citizen and appealed on the lines of centre's duty towards the state.
The adversary for the Assamese (the Indian state) became an ally. Arguing within the paradigm of national security, Assamese sub nationalism took a backseat. The citizenship of Assam was undermined in front of the citizenship of India. And the appeal was to save an integral part of India from external aggression. Similar fears were quoted by an ex editor of The Sentinel, Dhiren Bezbaruah who said that because of the demographic change in the lower Assam districts they would demand to merge with Bangladesh and form greater Bangladesh hence pointing to the presence of a possible Conspiracy Theory. But a parliament Act cannot be declared void on the basis of ineffectivity. But it can be scrapped only when it violates a constitutional provision. So the judgement quoted article 355 which concerns the centre's duty to saveguard the country from external aggression. It is interesting the way article 355 was interpreted. It was said that because this act makes it difficult to expel foreigners, so it indirectly encourages infiltration which amounts to external aggression and hence violation of article 355. And on this issue the act was termed unconstitutional.
Looking at the 114 pages judgement given by the Bench comprising of R.C Lahoti, G. P. Mathur and P. K. Balasubramaniam, one gets a feeling that the judgement seemed like accepting the fear psychosis of the Assamese Community. It mentioned illegal immigration is an 'aggression' on Assam and hence causing internal disturbance. This also caused fear psychosis among the people which hampered the growth of the state which is otherwise rich in mineral resources. The judgement cited a number of reasons for preferring to resort back to the Foreigners' Act and scrap the IM(DT) Act which are as follows:
- The burden of proof should be on the individual unlike the IM (DT) Act. This is because while proving one's citizenship, one need to provide intimate details like the date of birth, place of birth, parents' date and place of birth and the individual is the best person to provide them.
- Only a district judge or an additional district judge can be a member of the tribunals.
- There is a limit to the number of complaints that one person can file.
- The kind of details that the form needs to be filled by the complainant like the route and date of entry of illegal immigrants is unlikely to be furnished by the complainant.
- The Screening Committee which comprises of Executives and has the discretionary power to decide whose case to be forwarded to a Tribunal does not comprise of Judges.
- Officers do not have the jurisdiction to check the houses of the suspected person.
- No penal measure is provided in case documents are not produced. Punishment and fine provided under the Foreigners' Act is more severe than the IM(DT) Act.
Quoting the above reasons the Bench decided that the Act should be scrapped. Once this act was scrapped the people who were doubted to be foreigners were to be prosecuted under the Foreigners' Act. To get a sense of the procedure I looked at a judgement on a case of illegal immigration, one Md Rustom Ali v/s State of Assam, SP of Morigaon, Union of India. He was from Mayong village in Marigaon. The place where he was from is called Khulabhuyan. The judge who delivered the judgement was Justice B. K Sharma. The judgement came out in 2009. The judgement pointed out that his parents' name appeared only in 1966 and 1970 voters' list, and he produced his name only in 1993 voters' list. There was some discrepancy with age and according to the verifying agent, he could not speak Assamese frequently although he claimed Assamese to be his mother tongue, and did not have papers like land holdings documents and he could not be present for court proceedings. His lawyer explained that being educated till 4th class, he was not aware of the legal repercussions. He also produced a land patta having his grandfather's name but the court found it ineligible and hence not reliable enough. Based on this he was to be arrested under the Foreigners Act, and Passport (entry into India) Act, 1920 where people suspected as aliens will be arrested if they don't possess passports.
It is interesting to see that on the basis of issues like not having passports, birth certificates, or land holding papers which is very common in countries of large scale poverty, he was claimed to be a Bangladeshi and hence to be deported. In terms of fluency of language, it was not taken into consideration that the Neo Assamese or the Na Asamiya accepted Assamese as their language but its only people who were educated were more well equipped to speak it fluently.
So there is a need to understand that laws are also embedded in socio political context.
Even when the issue was in a legal domain it was overdetermined by political concerns. While BJP communalised the issue, AGP failed to retain the support of Muslims who went to Congress. Also Assam Movement which initially did not have a communal tone, always worked on very slippery grounds, because it never moved away from the need of deciding who is an original Assamese. This alienated tribal communities like Bodos, Tiwas, which were concerned about preserving their own identities under the imposition of dominant Assamese culture. As pointed out by Udayon Misra although the polarisation was initially on the issue of land alienation, slowly tribals got sidelined. While Gopinath Bordoloi was more accommodating of tribals aspiration, Bishnuram Medhi failed to reach out to the tribals.
Another problem which rendered it impossible to solve this issue is the absence of any bilateral understanding between India and Bangladesh to sort the problem. Under the Khaleda Zia regime, they denied to even accept that these are Bangladeshi nationals. This had a bearing on the nature of deportation where in these so called illegal immigrants were taken to the border near 24 Parganas, stripped of their meagre belongings which were burnt including the small amount of money that they had and were asked to run across. Concerned about the humanitarian aspect many scholars came out with more creative solutions like providing people who come to India with work permits. In the absence of any feasible solution like stopping migration completely the second best option would be regulating it.
Entangled Citizenship:
What this simmering issue has done to the citizenship claims of these people caught in the crossfire needs to be closely looked into. Because of the contention citizenship came to be reduced to territorial and legalistic parameters and the cultural content is undermined. Their rights and claims are mediated by the basic question of belonging or unbelonging to the nation state. The state is present only as a policing agent but absent in terms of developmentalist agent. This issue has been reduced to a gimmick and comes to the forefront only during elections. Their citizenship claims on the state is reduced to the continued preservation of acts which will save them undue harassment but fall short of actually addressing more substantial issues like development deficit. Often living in the low lying river islands of a flood prone state, these people are displaced time and again. These Internally Displaced People who are often seen as burden is doubly disadvantaged because of their 'image' issue of being stigmatized as Bangladeshi immigrants.
The failure to address such gross violence should be looked into also as a conscious effort on the part of state as enabling a particular kind of politics. The state reproduces structure that ensures a substantial part of the citizenry is tangled in the question of identity and not step up to raise more uncomfortable issues for the state in terms of where it failed to deliver.
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Unwanted People: Illegal Immigration in Assam and State Laws