Chasing a mirage

Print edition : July 04, 2003

The issue of the repeal of the Illegal Migrants (Determination by Tribunals) Act, 1983, relating to the expulsion of illegal Bangladeshi migrants from Assam, has surfaced once again, with the introduction of a Bill on the matter in Parliament.

in Guwahati

Members of the All Kamrup District Students Union, under the banner of AASU, at a rally in Guwahati on May 17 demanding the immediate annulment of the IM(DT) Act.-RITU RAJ KOWAR

LIKE the corpse in the old grim farce that refused to stay buried, the issue of illegal migration into Assam, in particular the controversy over the demand for the annulment of the Illegal Migrants (Determination by Tribunals) Act, 1983, simply refuses to disappear from the polemics of Assam.

There was a most curious exception, however, which has a bearing on the present. During the decade of the 1960s, at the beginning of which this correspondent started living in Guwahati, the newspapers used to carry almost every day reports about the detection and deportation of illegal migrants from what was then the eastern wing of Pakistan (then, as now, axiomatically enemy territory), under the provisions of the Foreigners Act, 1946, and the Immigrants (Expulsion from Assam) Act, 1950. Came the liberation of Bangladesh in 1971, or more accurately the dismemberment of Pakistan, almost as if a tap had been turned off all such reports and indeed the very issue of illegal migration into Assam virtually disappeared from the newspapers.

With the assassination of Bangladesh's founding father Sheikh Mujibur Rahman in 1975, however, the problem came to be resurrected (if only in newspapers, for the issue had never died) in the form of the illegal migrants from Bangladesh. What happened to the lakhs and lakhs of illegal foreigners during those three years and more, those malevolent Pakistani infiltrators whose expulsion even if in single or double digits used to be highlighted in the newspaper reports day after day for over a decade, and how did the issue come alive only after Mujib was killed, now as one involving illegal Bangladeshi infiltrators, one may well ask. Thereby hangs a tale, but that is not the subject of this essay.

Nearly two decades after the Act was legislated, a Bill was introduced in the Lok Sabha on May 9, the last day of the Budget session, for the repeal of the Act, in the teeth of opposition from the Congress party and most other opposition parties. The process of annulment is likely to be a prolonged one; and even if the Bill were to be adopted by the Lok Sabha, its passage in the Rajya Sabha is bound to be problematic. However, though the battle lines appear to be clearly drawn, it is not at all certain that these divides are permanent, or even clearly set, considering that general elections are due in a little over a year's time. One has only to consider the strange mazes along which the Congress(I) and other so-called anti-Hindutva forces are chasing and appropriating the Hindutva ideology in recent times to realise that any principled stand on such issues is strictly for the birds.

Closer home, one notes that while the Vishwa Hindu Parishad (VHP) was permitted by the State government, headed by the Congress(I), to hold an openly provocative Virat Hindu Sammelan with a public rally in Guwahati on June 8, the United Minorities Front, a recognised regional political party claiming to represent the interests of the religious and linguistic minorities with origins going back to the Assam agitation and the Assam Accord and once a close ally of the Congress(I), was prevented from holding its open session scheduled to be held in Guwahati on the same day.

THE introduction of the Bill to annul the Act, predictably, has been both welcomed and opposed: welcomed on the grounds that the annulment of this invidious measure applicable only in Assam (and not even in the rest of the northeast region, let alone in the rest of the country) removes the biggest hindrance to the expeditious and effective detection and deportation of illegal migrants, whose estimated numbers vary from a few lakhs to several millions, from the State; and opposed on the grounds that the move has the potential for further polarisation of a society and polity whose religious, linguistic and ethnic divides are already under great strain.

The actual fact, which few want to acknowledge honestly and openly, is that irrespective of the annulment of the Act - assuming that the proposed Bill will go through - or its continuance, there has been such a thoroughgoing and irrevocable shift in the balance of forces in Assam that any measure in this regard will have little impact on the ground reality: the entrenched presence of the migrants in the State, legal or illegal, from Bangladesh or from other parts of India, and the increasingly decisive assertiveness of their economic and political clout. Put simply, no political formation can come to power in Assam without building an alliance with the very sections that have been now and for long routinely reviled as infiltrators. This has been a fact of Assam's political life for years, if not decades. The Asom Gana Parishad (AGP) learnt this lesson, the United Liberation Front of Asom (ULFA) has had to find shelter and support in Bangladesh in its quest for `Swadhin Asom', and even the Bharatiya Janata Party will have to build bridges with the very sections against which VHP leaders are proposing an `economic boycott' with a view to driving them out, if it wants to come to power in the State.

Indeed, one of the interesting shifts that have taken place in the state and the region as a whole during the last decade is the increasing legitimacy of the presence of the Bangladeshi migrants, be they seen as legal or illegal; and a willingness on the part of the political, cultural and commercial establishments, not to speak of the ordinary people in the State and the region, to acknowledge this reality and `do business' with Bangladesh.

A brief recalling of recent history will illustrate this point. Making a statement on the issue of illegal infiltration from Bangladesh into Assam (and several other parts of the country, including Delhi) on the floor of the Assam Assembly on April 10, 1992, the late Hiteswar Saikia, then serving his second term as Chief Minister, said that there were "between two and three million" such infiltrators in Assam. The nine-paragraph statement, distributed to the media, discussed the economic and political dimensions of such illegal migration and disclosed that "in ten out of the 13 districts" of the State (the State now as 23 districts), "the presence of Bangladeshi infiltrators had contributed to an increase in the population".

The statement caused some sensation, given the fact that Saikia had consistently denied or underplayed the issue. Political analysts also saw a link between such claims and the disclosure that senior leaders of the ULFA, whose very `reason for existence' at least at the time of its birth, was the perceived threat to the identity of the State and its people from the continued illegal influx from Bangladesh, had found sanctuary in Bangladesh. The State government took out a series of advertisements in newspapers highlighting this link, and asking the rhetorical question: "Who is the enemy of the people?", a description that the Assam agitation leaders had routinely applied to Saikia.

An immediate reaction to the claim that there were "between two and three million" Bangladeshis illegally staying in Assam was the founding on April 30, 1992 of an outfit calling itself the `Muslim Forum', by Abdul Muhib Mazumdar, a senior Congressman and a political rival of Hiteswar Saikia, who had been a Minister in Saikia's first government (1983-85). At the first and only general meeting of the Forum in Guwahati on May 24, 1992, Abdul Aziz, one of its conveners, did some plain-speaking; he reminded the Chief Minister of his party's dependence on what he called `Muslim votes', and added that it would take "just five minutes for the Muslims of Assam to throw Hiteswar Saikia out".

The message went home, and just two weeks later there was a `clarification' from the Chief Minister. Addressing a meeting of the All Assam Minority Students Co-ordination Committee at Juria near Nagaon on June 7, 1992, Saikia said that there was not a single illegal migrant in the State (Frontline, July 7, 1992).

THE IM(DT) Act, 1983 was conceived and was born in highly controversial circumstances. Its life over the last 20 years has been equally contentious. The origins of this legislation, as well as the political and other compulsions that dictated it, are deeply rooted in history going back to the annexation of this frontier land and its subsequent `settlement', as part of a process of integrating these peripheral areas and expanding them to serve the needs of the British and Indian capital. The process covering over a century and half of the history of this region had, and continues to have, a material bearing on the lives of the people touching them in every possible way. Migration from areas that later became East Pakistan (and Bangladesh), perfectly legal before Independence, as well from other parts of India, was part of this larger process. Its long-term consequences, outside the impetus it has given to the economic growth of the State and the region, are a matter of common knowledge and shared resentment, at least in Assam. Almost the same point can be made of the resentment about the Act as well as of the reactions, favourable and adverse, provoked by the move to repeal the legislation as well.

Briefly speaking, the Act, a piece of Central legislation, was passed by Parliament in the wake of the controversial and bloodstained elections of February 1983, held in the teeth of violent opposition to the holding of the elections mobilised by the All Assam Students Union (AASU) and its allies on the ground that no elections to the State Assembly should be held until the issue of illegal migration into Assam was resolved. The political and legislative history of the state over the previous five years was marked by a series of crises, each of which was influenced by issues thrown up in the course of the AASU-led agitation on the issue of illegal migration into the State and, indeed, into the region.

The elections were not merely bloodstained; they were also a farce. However, a Congress(I) government under Hiteswar Saikia assumed office in Dispur. It was not an `illegal' government, though the Assam agitation leaders consistently characterised it so. But it certainly lacked any kind of legitimacy.

The quest for legitimacy could not even begin without a settlement with the agitation leaders. The assassination of Indira Gandhi, who had profoundly alienated the agitation leaders (the feelings were mutual), provided just the opportunity for the latter to resume negotiations with the Government of India. The agitation leaders as always insisted that the `illegal state government under Hiteswar Saikia' should be kept out of the talks. Thus, under the dispensation of Rajiv Gandhi, the Memorandum of Settlement on the Problem of Foreigners in Assam (Assam Accord) was signed on August 15, 1985. Just over four months later, the leaders of the Assam agitation, who in the meanwhile had transformed their movement into a political party, the Asom Gana Parishad, won the elections and formed the government.

Of the many conundrums and masterly misdirections that the Assam Accord comprises, the most curious is the reference to the IM(DT) Act. Passed in the context of the yet to be resolved Assam agitation, the Act was intended to be an assurance to the presumed `objects' of that agitation - that is, those residents of Assam who had reason to fear that the agitation had targeted them - that their interests would be protected, that they would no more be the `objects' of a process initiated under the provisions of a piece of legislation made before Independence (The Foreigners Act, 1946) or of an Act legislated immediately after Independence (The Immigrants (Expulsion from Assam) Act, 1950), both with a context quite remote from the realities and compulsions of a democratic state that had attained independence several decades earlier. Thus, the rationale.

Nevertheless, the Act was the most offensive bugbear for the Assam agitation leaders whose demand has, from the beginning, been for the strict and rigorous application of the provisions of the Acts of 1946 and 1950, applicable universally in the rest of the country and indeed in Assam as well until then. They deeply suspected the new legislation which by then had been sold to the `objects' of the anti-foreigner agitation as the one and only protective measure that they could not do without. Moreover, it was initiated by a government and a leader, which they continued to insist, was `illegal'. Quite simply, the Act and the Accord, so diametrically opposed to each other in their substance and intent, had also become the reverse and the obverse of one and the same phenomenon.

Para 5.9 of the Assam Accord tried to square this circle. "The government will give due consideration to certain difficulties expressed by the AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983."

From unqualified opposition to the IM(DT) Act to accepting the anodyne that the government would `give due consideration to certain difficulties' relating to the implementation of the Act was quite a climbdown, a price the agitation leaders paid without demur; for only thus could they begin a process which in a matter of weeks transformed them from `student' leaders to leaders of a political party deciding the destiny of the people of Assam.

Since the signing of the Accord, the political inheritors of the Assam agitation have twice formed the government in Dispur. Nevertheless, they have done little, or have been able to do little, in the matter of the removal of the `certain difficulties' experienced in respect of this Act. Indeed, there has been an ambivalence, especially in the AGP (though not so in the case of AASU) even on the issue of annulment of the Act, for strictly speaking the Act remains part of the Accord. Without the Act, as Chief Minister Tarun Gogoi says, the Accord itself would fall. Those leaders of the Assam agitation, like Nibaran Bora who opposed the Accord even at the height of the euphoria of its signing, recognised the binds and traps into which the signatories to the Accord were entangling themselves.

Going by its preamble, the Act appears unexceptionable in its analysis of the problem of illegal migration into Assam, and the need to solve the problem:

"Whereas a good number of foreigners who migrated into India across the borders of the eastern and north-eastern regions of the country on and after the 25th day of March 1971, have, by taking advantage of the circumstances of such migration and their ethnic similarities and other connections with the people of India and without having in their possession any lawful authority to do so, illegally remained in India; and whereas the continuance of such foreigners in India is detrimental to the interests of the public of India; and whereas on account of the number of such foreigners and the manner in which such foreigners have clandestinely been trying to pass off as citizens of India and all other relevant circumstances, it is necessary for the protection of the citizens of India to make special provisons for the detection of such foreigners in Assam and also in any other part of India in which such foreigners may be found to have remained illegally... "

However, if one is allowed to mix metaphors, the nuts and bolts of the legislation provide loopholes rather than tightening and sealing the escape vents. This is especially so in respect of the functioning of the Tribunals, the key component of the Act. The most charitable way to describe their functioning is to say that they are `non-functioning'. According to a report on the issue of illegal migration into the State submitted by the State Governor to the President of India in November 1998, only five of the 16 Tribunals are functioning. "The remaining eleven have only one person each on the bench [the Act originally required each Tribunal to have three members, and in its amended form requires two members] and as such are non-functional. Salaries and TA bills of the staff are not paid in time. Essential facilities like transport and telephone are lacking and funds are often not available to buy even postage stamps."

More eloquent are the numbers, even though these vary considerably, especially insofar as estimates of the number of illegal migrants.

As is well known, the issue of illegal migration from Bangladesh affects not merely Assam and other States bordering Bangladesh but the region as a whole. Indeed it is an issue even in cities such as Delhi and Mumbai and areas even more remote. However, while in the years before the promulgation of the Act, according to official admission, over three lakh illegal migrants were deported from Assam alone between 1962 and 1984 (1,74,349 between 1962-66, 69,174 between 1967-73 and 58,148 between 1974-84, all under the provisions of the Foreigners Act, 1946), in the 18 years since then, that is, since the coming into force of the Act, the number of such deportees has fallen sharply, with just 1,501 being deported in the last 18 years. According to a statement made by the Minister for Assam Accord Implementation in the State Assembly on March 11, this year, the State government had so far spent nearly Rs.13 crores (Rs.12,89,28,385, to be exact) on the Tribunals set up under the Act for purposes of `determination' of the illegal nationality of persons impugned to be so, a process which has till now resulted in 1,501 such persons being `determined' and `deported'.

One obvious reason for the steep fall is the more elaborate process (including the hearing before Tribunals) laid down in the Act which has to be followed before a `suspected illegal migrant' is established to be really one, and ordered to be deported. Complicating the process further is the Assam Accord which distinguishes three streams of such migrants: those who came to Assam before January 1, 1966, whose presence is to be `regularised'; those who came after January 1, 1966 but before March 25, 1971, in respect of whom the Foreigners Act, 1946, will apply; but only to the extent that they would be `detected' and their names would be `deleted' from the electoral rolls for a period of 10 years - a proviso which is now only of academic interest; and those who came after March 25, 1971, in respect of whom the provisions of the IM(DT) Act, 1983, will apply.

In contrast, in West Bengal, which too has a large number of illegal migrants from Bangladesh, but where there has been neither an organised anti-foreigner agitation by `student' leaders aspiring to political office, nor an Accord with the Centre, and where the IM(DT) Act, theoretically applicable to the whole country, has not been notified, nearly half a million illegal migrants have been deported under the provisions of the Foreigners Act, 1946, with hardly a whimper of protest. Addressing the media in Guwahati on April 28 this year, Tripura Chief Minister Manik Sarkar said that his government, a Left Front government as in West Bengal and where too only the provisions of the Foreigners Act, 1946, are applicable, had pushed back over a lakh of illegal migrants from Bangladesh during the last one decade.

There may be few lessons in this for the leaders of the Assam agitation (who are anyway beyond learning anything) but, more relevantly, would there be any for those trying to replicate the history of the last three decades?

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