An Act undone

The Supreme Court judgment of July 13 that struck down the IMDT Act lays bare the opportunism and political expediency behind the Act as well as its constitutional untenability.

M.S. PRABHAKARA in Guwahati

PARLIAMENT passed the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) on October 15, 1983, on which day it was "deemed to have come into force in the State of Assam". It duly received the assent of the President on December 25, 1983. Almost 22 years later, it was struck down as unconstitutional by the Supreme Court in its judgment delivered on July 13, 2005, on a public interest petition filed about five years earlier by Sarbananda Sonowal, then president of the All Assam Students' Union (AASU) and at present an Asom Gana Parishad (AGP) member of the Lok Sabha.

Though the Act, by the process of a simple notification, could have been made applicable to any State of the Union, it remained applicable only to Assam, not even to its neighbouring States. In the rest of the country, the Foreigners Act, 1946, is the legislation dealing with matters relating to the entry of foreigners. The Foreigners Act also covered Assam before the IMDT Act came into being.

However, calculations more complex than these bare facts influenced the political necessity and the opportunism that led to the legislation covering only Assam. Some of these were genuine, some manufactured. To understand these one has to go to the beginnings of the Assam agitation on the issue of foreign nationals.

The central point of the agitation, which was just one phase of a long process of protest and resistance that had taken several other forms earlier, was that no elections could be held in the State without a satisfactory revision of the electoral rolls, with the names of "illegal foreigners" removed. This was to be part of a three-phased programme that the government had to carry out: "detection" of all such illegal aliens; "deletion" of their names from the electoral rolls; and their "deportation".

However, the second of the three Ds, deletion of names from electoral rolls, was to be the more immediate task, considering that the agitation began more or less at the time of the revision of electoral rolls in preparation for the byelection to the Mangaldoi (Scheduled Caste) Lok Sabha constituency in the second quarter of 1979. The process could not be completed because of objections from various political parties about the way this revision was being done. The State government, then headed by Golap Barbora of the Janata Party who assumed office in March 1978, was allegedly in cahoots with the agitation leaders who had been virtually entrusted with the task of revision of electoral rolls, resulting in the deletion of the names of many genuine voters. In the event, the byelection itself was not held because developments nationally (the collapse of the Janata Party government) meant that general elections had to be held.

In the intervening period of less than six months, other developments in the State that did little credit to any party concerned led to the fall of the Golap Barbora Ministry in September 1979 and the formation of another coalition government headed by Jogendranath Hazarika of the Assam Janata Dal (AJD). However, the contentious issue of the revision of electoral rolls remaining unresolved, the electoral process was successfully frustrated in all the 12 constituencies of the Brahmaputra Valley, in 10 of which nominations could not be filed. In the event, elections could be held only in Silchar and Karimganj (S.C.), both in the Bengali-dominated Barak Valley where the demand for the three Ds articulated by AASU had few takers then.

The regime of unstable coalitions in Assam continued for the rest of the life of the Assembly. However, the Assembly itself was not dissolved; the collapse of one unstable government was followed by a brief period of President's Rule, with the Assembly being kept in suspended animation. Between December 1979, when the AJD government resigned, and September 1982, when, after two unstable coalitions headed by Anowara Taimur and Keshub Gogoi collapsed in six months or less in succession, it was clear even to the Congress that the very success of the enlargement of its numerical strength from eight to a majority in the 124-member House had engendered its instability. The State came under five brief spells of President's Rule: in December 1979, June 1980, June 1981, March 1982 and September 1982. It was only then that the decision was taken to dissolve the House and go in for fresh Assembly elections. These were held in February 1983, along with byelections to the 12 Lok Sabha seats that had remained vacant over the previous three years.

The story since then is well known. The resistance to the holding of elections continued. However, the elections were forced through because of what was claimed repeatedly as "constitutional compulsions". The exercise was accompanied with much violence, both generalised and specific. Persons securing a few hundred votes, from constituencies whose average voting strength was of the order of sixty or seventy thousand, got elected. Even without AASU saying so, the Assembly thus elected lacked legitimacy.

The story in respect of the elections to the 12 vacant Lok Sabha seats was no different. Elections could not be held from seven of these constituencies. Here too, the victorious candidates had little to crow about. Tarun Gogoi, the present Chief Minister, for instance, got elected to the Lok Sabha from the Jorhat constituency securing 36,836 votes out of the 43,907 valid votes cast, while the strength of the electorate was 6,76,595. Put simply, he got elected on the strength of 5.44 per cent of the total votes of the seat.

The IMDT Act was passed by this Lok Sabha, whose representation from Assam, in particular from the Brahmaputra Valley, the "homeland" of the Assamese people where the Assam agitation had its widest spread and strongest support, lacked political legitimacy as well as the legitimacy of numbers having five members out of the 12 in the Brahmaputra Valley. The "elected" government that took office under Hiteswar Saikia had even less legitimacy.

This was soon acknowledged by the Union government as well. The death of Indira Gandhi (the mutual antipathy between Indira Gandhi and the Assam agitation leaders is a matter of historical record) in a way paved the way for a deal with the agitation leaders. The signing of the Assam Accord (August 15, 1985) also meant, axiomatically, the dissolution of the "illegal" State Assembly and the demise of the "illegal" Hiteswar Saikia government. Other events followed swiftly. Barely four months into the signing of the Accord, the Assam agitation leaders transformed themselves into the leaders of a new regional party, the AGP, fought and won the December 1985 Assembly elections, and formed the first regional party government in the State.

However, before signing the Assam Accord the Union government, in close consultation with the State government, enacted the IMDT Act, and indeed incorporated a reference to this Act in the Assam Accord (Clause 6). While the three Ds now took a back seat, to be revived as demanded by necessity at the time of elections, the annulment of the IMDT Act came to the forestage, especially for AASU which continued to play its highly activist "non-political" role.

However, the enactment of the IMDT Act was not dictated entirely by opportunistic considerations, now popularly referred to as "vote bank politics". In one way or the other such "vote bank politics" prevails throughout the country. But in matters of politics and public affairs, even the most opportunist choices are also dictated by political necessities.

The political necessity in this instance was dictated by the grim denouement of the enforced February 1983 elections that traumatised the people of the State cutting across all other divides, and most of all the Muslim minority. Since, despite all the normative claims that the Assam agitation was against all illegal aliens and made no distinction between an "infiltrant" (Muslim) and a "refugee" (Hindu) on the ground, the Muslim minority had felt the brunt of the animosities let loose. So legislation providing for greater protective measures against harassment than was available under the Foreigners Act, 1946, was considered. The Preamble to the IMDT Act resonates with all these elements: the hypocrisy, the opportunism and the political necessity.

The Supreme Court's judgment lays bare all these elements, most importantly the Act's constitutional untenability. After some initial demurring, the Union government appears to have reconciled itself to the Act's unlamented demise. Even minority opinion, so easily bestirred on the issue, has been relatively less exercised over the annulment. The situation on the ground has changed dramatically over the past two decades; to some extent this is also the case with the inveterate opponents of not merely the IMDT Act but all the other political shenanigans that are associated with it, briefly recapitulated above.

Only the Bharatiya Janata Party and the parties of the Hindutva mindset seem to be living irrevocably in the past. One can indeed ask whether the apparent consensus arrived at between AASU and representatives of 10 minority organisations, that all illegal migrants who arrived in Assam on or after March 25, 1971 (the day on which the systematic crackdown in East Pakistan began) should be deported, can at all be implemented considering that Bangladesh has consistently maintained, against all evidence to the contrary as well as common sense, that not a single Bangladeshi citizen stays illegally anywhere outside Bangladesh, least of all in Assam.