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In July 2005, the Supreme Court struck down as unconstitutional the Illegal
Migrants (Determination by Tribunals) Act, which provided for identification and
deportation illegal Bangladeshi migrants. A three - judge Bench comprising of
Chief Justice R.C.Lahoti , Justice G.P.Mathur and Justice P.K.Balasubramanyam,
declared the controversial 1983 Act and the Rules framed thereunder in 1984, as
ultravires the constitution . Allowing a writ petition filed by Asom Gana
Parishad MP, Sarbananda Sonowal, challenging the validity of the Act, the Bench
directed that all tribunals constituted under the IMDT Act adjudicating the
cases for identification of illegal immigrants from Bangladesh, cease to
function with immediate effect. The cases pending before the tribunals under the
IMDT Act would stand transferred to tribunals under the Foreigners Act.
The IMDT Act came into existence in 1983 at the height of the anti-foreigners
agitation launched by the All- Assam Students' Union for detection of foreigners
and deletion of their names from the electoral rolls. The Assam Accord of August
14, 1985 (signed by the AASU, the Center and the State Government) contained the
provision that all the foreigners who came to the state after March 25, 1971
would be detected and deported under the Act. The relatively lenient IMDT Act
was made applicable solely to Assam while the more stringent Foreigners Act,
1946 applied to rest of the country.
The nub of the argument of the opponents of this legislation is that it unduly
favors those "foreign nationals" (meaning Bangladeshis) suspected to be
illegally staying in the state. The procedure for the three D's (detection,
deletion of names from the electoral rolls, and deportation) was seen to be
hamstrung by the provision that cast the onus of proving a suspected person to
be an illegal migrant on the state or individual who lodged the complaint .The
procedure under the Foreigners Act, 1946, is more direct with the onus being on
the person impugned to be an alien to establish her or his Indian nationality.
An analysis of the working of the IMDT Act in Assam showed that it had been
wholly ineffective and was indeed working to the advantage of illegal migrants
.The Supreme Court Bench noted that though enquiries were initiated in 3,10,759
cases under the IMDT Act, only 10,015 persons were declared illegal migrants and
only 1481 illegal migrants were physically expelled upto April 30,2000. On the
contrary in West Bengal , where Foreigners Act was applicable, 4,89,046 persons
were deported between 1983 and 1998, which was a shorter period.
The Bench in its 114-page judgment said that IMDT Act and the Rules clearly
negate the constitutional mandate contained in Article 355 of the Constitution,
which casts a duty upon the Union of India to protect every state against
external aggression and internal disturbance. The judges said that the impact of
such large-scale illegal migration not only affected Assam but also other
north-eastern States as the route to these places passed through Assam.
Large-scale immigration lead to problems of insurgency and social disturbances,
thereby affecting the local language and culture which in turn hampered the
state's growth.
The immediate impact of the Supreme Court's ruling is that, as directed in the
judgment, all existing tribunals under the IMDT Act will have to be
reconstituted under the provisions of the Foreigners Act. Finally, the judgment
clearly marks a set-back to the Congress which has unwisely made the retention
of the IMDT Act the central plank of its political programme in the state.
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