Price of inaction

Border Security Force personnel keep vigil at the Masalabari outpost along the India-Bangladesh border in Assam's Dhubri district. A file photograph.-RITU RAJ KONWAR

Governments at the Centre and in the State need to stop playing politics and face the ground realities in the region.

AS peace and harmony is sought to be restored and rehabilitation of the displaced is given priority in Kokrajhar and its neighbouring areas in the Bodoland Territorial Areas District, we realise that time has again chosen an ugly way to remind us about the disastrous cascading effects of a few short-sighted and politically motivated acts and omissions.

A Brief Background

An amendment to the Constitution, by way of the Sixth Schedule to the Constitution (Amendment) Act, 2003, gave Bodoland Territorial Areas District the status of an autonomous district as a Sixth Schedule area under the Constitution. Thereafter, in accordance with Article 244(2), Bodoland came to be administered in accordance with the provisions of the Sixth Schedule.

The amendment contemplated the formation of the Bodoland Territorial Council (BTC), comprising elected and nominated members and entrusted with the task of administration of the district. Before the amendment, the Bodo Liberation Tigers (BLT), an organisation once banned by the Union government as a terrorist outfit and now disbanded, as the representative of Bodo aspirations for a Bodo Homeland through its then chairman, Hagrama Mahilary, signed a Memorandum of Settlement on February 10, 2003, with the Government of Assam and the Union of India, bringing to an end years of insurgency.

Insofar as the recent ethnic violence is concerned, Mahilary, who has headed the BTC since its inception, has questioned the role of immigrant Muslims in instigating people to demand the dissolution of the BTC. He has asked the Prime Minister to institute an inquiry into the recent clashes. At the same time, there have been allegations of corruption and administrative inefficiencies against the BTC. As in the past, the governments in the State and at the Centre have almost maintained a firm silence on the possible causes of the violence. The failure to address the root causes of the crisis can only mean that peace will not last and wounds will not heal. A recurrence of such incidents will only affirm the states failure to read the losses in human terms.

On July 12, 2005, a three-judge Bench of the Supreme Court allowed Writ Petition No.131 of 2000, Sarbananda Sonawal vs Union of India, a public interest petition, and struck down the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act). A special piece of legislation, the IMDT Act, according to its Statement of Objects, was enacted purportedly to deal with the detection of foreigners who illegally migrated into India across the borders of the sensitive eastern and north-eastern regions of the country and remained in the country, posing a threat to the integrity and security of the said regions. The Statement of Objects of the Act further reads:

The continuance of these persons in India has given rise to serious problems. The clandestine manner in which these persons have been trying to pass off as citizens of India has rendered their detection difficult.

The Act failed to serve the purpose for which it was enacted. Its very stringent provisions inter alia expected the prosecution to discharge an extremely heavy burden of proving that an individual was an illegal immigrant, contrary to the requirement in most laws, including the Foreigners Act, 1946 (then applicable in other parts of the country and now even in Assam), where the onus to prove that an individual suspected to be foreigner is not a foreigner lies on the individual and not on the prosecution. The Supreme Court observed:

It is far more easier to secure conviction of a person in a criminal trial where he may be awarded a capital punishment or imprisonment for life than to establish that a person is an illegal migrant. 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 25-3-1971 rather than to identify and deport them.

(The Pakistani Army cracked down on Dhaka on March 25, 1971, which increased the flow of refugees fleeing the violence, into Assam and other places, for nine months until East Pakistan was liberated. The erstwhile IMDT Act and the Assam Accord envisaged the detection and deportation of foreigners who came to Assam on or after March 25, 1971.)

The court held that the tribunals and appellate tribunals constituted under the IMDT Act should cease to function and cases pending in these tribunals should be transferred to tribunals constituted under the Foreigners (Tribunals) Order, 1964, and decided in the manner provided in the Foreigners Act, the Rules made thereunder and procedure prescribed under the Foreigners (Tribunals) Order, 1964.

Holding that Assam was facing external aggression and internal disturbance on account of large-scale illegal immigration of Bangladeshi nationals, the court observed that it was 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.

Article 355, which appears in Part XVIII of the Constitution which deals with Emergency Provisions, reads: Duty of the Union to protect States against external aggression and internal disturbance It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution.

The Supreme Court in its judgment also took note of a speech delivered by Indias representative, Dr Nagendra Singh, while addressing the Sixth Committee of the General Assembly on the definition of aggression. The judgment quoted extracts from the speech that was delivered on November 3, 1971, a month before the commencement of the India-Pakistan war, when a large-scale influx of persons from East Pakistan had begun. The speech said: Aggression can be of several kinds such as direct or indirect, armed in nature or even without the use of any arms whatsoever. There can be even direct aggression without arms. For example, there could be a unique type of bloodless aggression from a vast and incessant flow of human beings forced to flee into another State. If this invasion of unarmed men in totally unmanageable proportion were to not only impair the economic and political well-being of the receiving victim State but to threaten its very existence, I am afraid, Mr. Chairman, it would have to be categorised as aggression.

Whether or not we look at the post-1971 influx as aggression, over the years, the government stand on the illegal immigrants who came in just before the 1971 war kept changing in tune with the changing political equations. The contradictory stands of two different governments in power on the question of illegal immigrants from Bangladesh in Assam, even during the course of the hearing of the writ petition, tell a tale by itself.

Flip-Flops

July 18, 2000: A status report annexed with the Union of Indias affidavit sworn by the Director, Ministry of Home Affairs, stated: The demographic composition in the districts bordering Bangladesh has altered with the illegal immigration from Bangladesh. The districts of Assam and West Bengal bordering Bangladesh have recorded growth of population higher than the national average.

August 28, 2000: An affidavit filed by the Assam government stated: There are three districts in Assam which have borders with Bangladesh, viz. Karimganj, Cachar and Dhubri. All India percentage of decadal increase in population during 1981-1991 is 23.85 per cent whereas the border districts of Assam, namely, Karimganj, shows decadal increase of 42.08 per cent, Cachar district 47.59 per cent, and Dhubri district 56.57 per cent. From the above it can be assumed that the infiltration of foreigners from Bangladesh contributed significantly to the sharp increase of population in Assam.

August 8, 2001: The government that came to power in Assam in May 2001 sought to withdraw the earlier affidavit of August 28, 2000, and file a new one stating, affidavit filed by the former AGP [Asom Gana Parishad]-led Government does not reflect the correct position of law. State Government is of the opinion that the IMDT Act is constitutional and there is no question of either repeal or striking down of the Act.

In response, the Union of India filed an affidavit sworn by the Director, Ministry of Home Affairs, stating inter alia that large-scale illegal migrants from Bangladesh have not only threatened the demographic structure of the area but have seriously impaired the security of the nation, particularly in the present circumstances. The need for expeditious identification of illegal immigration is more pressing now than ever.

November 24, 2004: The first United Progressive Alliance government at the Centre, which had come in earlier that year, filed another affidavit stating that on reconsideration the Central government had taken a decision to retain the IMDT Act in Assam and that allegations were made by organisations that a large number of genuine Indian citizens had been deported under the Foreigners Act, 1946.

Politics and human lives

When seen in the light of the stands taken by representatives of various governments who swore on oath and signed affidavits either acknowledging or remaining conspicuously silent on the serious issue of the questionable nationality of large numbers of people, the recent violence in Bodoland suggests that the political benefits that may accrue to a few from the large-scale influx clearly outweigh the losses (even of lives) that the region may suffer.

According to a report in an English-language newspaper from Assam, official records show that out of the total number of foreigners found to be illegally staying in Assam by the Foreigners Tribunal and the now defunct IMDT Tribunal, 39,287 foreigners are still absconding. The article does not go into how unsuccessful the state has been in detecting and deporting foreigners and implementing the directions of the Supreme Court in the aforesaid judgment as well as a subsequent judgment dated December 5, 2006, in Writ Petition Nos 117 and 119 of 2006 of the court giving four months time for the implementation of those directions.

However, if indeed 39,287 untraceable foreigners, with features indistinguishable from an average Indian, are at large in the State, is the government really in a position to comment on the charge that foreigners had a hand in the recent violence, which seems to be the thrust of most reports?

Article 244(2) of the Constitution provides that provisions of the Sixth Schedule will apply to the administration of the tribal areas in Assam, Meghalaya, Mizoram and Tripura. The tribal areas that are named in the table appended to paragraph 20 of the Sixth Schedule are governed not by the provisions of the Constitution which apply to other constituent States of Union of India but by provisions contained in the Sixth Schedule. ( Edwingson Bareh vs State of Assam, AIR 1966 Supreme Court 1220 (para 11).)

The history of the Sixth Schedule can be traced to the time when the British annexed Assam and discovered regions that they had no desire to govern but sought to keep away from other predators. They did not treat these regions as a source of revenue and they gave them the status of backward tracts and excluded and partially excluded areas.

The Bodos are one of the largest, if not the largest, among the plains tribe communities in Assam. The plains tribes (including the Bodos) and other backward groups were granted protection under the Assam Land and Revenue Regulation Act by placing areas predominantly occupied by them in the Tribal Belts and Blocks. The safeguards in the Tribal Belts and Blocks that were intended to benefit these communities did not serve much purpose, and soon there was large-scale alienation of land belonging to communities like the Bodos, primarily as a result of their inability to repay debts.

The practice in the past was to apply the provisions of the Sixth Schedule only to tribal people inhabiting hilly regions of the north-eastern region. However, Bodo agitations and demands for an independent homeland eventually saw the creation of the BTC and Bodo Territorial Areas District, which was given the status of a Sixth Schedule area.

At present, Part I of the Table at paragraph 20 of the Sixth Schedule comprises North Cachar Hills district, Karbi Anglong district and the Bodoland Territorial Areas District in Assam. Part II comprises Khasi Hills district, Jaintia Hills district and Garo Hills district in Meghalaya. Part II-A comprises Tripura Tribal Areas district in Tripura and Part III comprises Chakma district, Mara district and Lai district in Mizoram.

From the multiple intricate issues that have resurfaced time and again leading to violence and displacement of people, it appears that the objective of giving protection under the Sixth Schedule to the region is lost.

The significance of the word territorial (which is absent in any of the names of the other districts of the Sixth Schedule) in Bodoland Territorial Areas District cannot be lost on us because unlike the other Hills areas, the region in the past was not a compact area with definite and clear boundaries. There are also claims that without a majority population in the entire area, the Bodos have been given too many rights.

According to a notification dated October 31, 2003, issued by the Government of Assam, the BTC comprised four new contiguous districts, Kokrajhar, Baska, Udalguri and Chirang, which had been carved out of eight districts Dhubri, Kokrajhar, Bongaigaon, Barpeta, Nalbari, Kamrup, Darrang and Sonitpur. A mixed population of caste-Hindu Assamese, Nepalis, Adivasis and Muslims, and others resided in the districts that formed the BTC. As per the amendment to the Constitution, the BTC would comprise not more than 46 members, of whom 40 should be elected on the basis of adult suffrage. Thirty of the seats for elected members should be reserved for the Scheduled Tribes, and five for non-tribal communities, while five should be open for all communities. The other six members should be nominated by the Governor.

With a population comprised of several ethnic communities, a border shared with Bangladesh, allegations of encroachment by foreigners, questions whether the rights vested in different communities are disproportionate to their numbers, and past instances of violence between communities, the task of applying the provisions of the Sixth Schedule for the plains tribes was certainly a daunting one from the very beginning. By choosing to brush aside these and other practical difficulties and without any serious effort to address the issue of influx of foreigners, the experiment to administer the Bodoland Territorial Areas District under the Sixth Schedule was bound to have disastrous consequences.

As observed by M.S. Prabhakara, a former correspondent for the north-eastern region for The Hindu and Frontline in his book Looking Back into the Future, creation of the BTC as an autonomous and self-governing body is nothing but an illustration of the extreme ad-hocism that has again and again characterised the piecemeal social and political engineering that has been going on in this region in response to any and every kind of agitation.

It is another story that whenever new demands and agitations gain momentum and cracks become visible in the region, the government steps in to weaken the region further by creating more fragments and individual units with increasing dependence on New Delhi subsidies. While such steps may pay dividends in politics, the Kokrajhar incident highlights the reality that dividing the region can only multiply its problems.