Hitherto, this issue had always been given a political hue of minority (read foreigners) protection but now with an authoritative finding on facts and a severe castigation of the Government effort or rather the lack of it, in removing foreigners, this judgment now requires the Government both at the Centre and those in the Northeastern states to provide answers and to act.

There are three significant aspects to this judgment, which will impact on the political process in the Northeast. First, the court has equated the large scale influx of Bangladeshis as akin to a situation of external aggression, leading to internal disturbance under the Emergency provisions of the Constitution. Second, it has severely castigated successive Central and State Governments for providing protection to foreigners, to the peril of the indigenous people. Third, the response this judgment has evoked from political parties.

By equating the influx with external aggression, the Supreme Court has found that the impact of such large scale influx is the root cause of insurgency as well as economic deprivation of the Northeast.

The court has made a telling observation: "The report of the Governor, the affidavits and other material on record show that millions of Bangladeshi nationals have illegally crossed the international border and have occupied vast tracts of barren or cultivable land, forest area and have taken possession of the same in Assam as well. Their willingness to work at low wages has deprived Indian citizens and specially people in Assam of employment opportunities.

This, as stated in the Governor's report, has led to insurgency in Assam. Insurgency is undoubtedly a serious form of internal disturbance which causes grave threat to the life of the people, creates panic and also hampers the growth and economic prosperity of the State - though it possesses vast natural resources. This being the situation, there can be no doubt that Assam is facing "external aggression and internal disturbance" on account of large scale illegal migration of Bangladeshi nationals.

It, therefore, becomes the duty of the Government to take all measures for protection of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. The court having found that this is the situation requiring the Centre to act under its emergency power, the Government is free to declare Emergency under Article 352 of the Constitution to tackle this issue.

The court has also rendered a finding that existing statutes like the Foreigners Act and special enactment as early as of 1950 relating to immigrants in Assam, that is, the Immigrants (Expulsion from Assam) Act, whose provisions provided for summary expulsion of foreigners were not only not followed but in response to the mass movement in Assam in 1979 for their expulsion, the Central Government enacted the IMDT Act in 1983.

This Act erected a huge super structure of screening committees by the Government coupled with judicial tribunals and an appellate tribunal making it impossible to either detect or remove any foreigner.

The procedure for filing a complaint by a citizen against a foreigner, the process of screening by a Government committee coupled with judicial scrutiny by the tribunal followed by an appellate tribunal made the whole process of removing of a foreigner impossible as opposed to the prevailing Acts which required no judicial scrutiny, easier procedure with summary powers being vested in the Government.

The court observed that the procedure under the IMDT Act was so $@!& that "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 on account of extremely difficult, $@!& and time consuming procedure laid down in the IMDT Act and the Rules made thereunder".

Summing up the effect of the Central and State Government on this issue, the court found that the IMDT Act has 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 March 25, 1971 rather then to identify and to deport them".

Immigrants have always been politically beneficial to successive Congress Governments in Assam, shoring up the electoral rolls with committed voters, in the first few decades after independence and subsequently by virtue of being Muslim have acquired protection under the label of minorities.

The immediate response of the Central and the State Governments was to dilute the impact of the judgment on their committed foreigner vote-bank, by constituting a Group of Ministers and assuring that minorities would not be harassed. For petty political gains, foreigners have been given the protective label of minority which helps in consolidating minority votes in the rest of the country.

It is an admitted fact recorded in judgment that six districts in Assam have turned into immigrant-dominated ones and over the last 32 years only a little above 1,500 immigrants have been expelled. This practice of minority communalism in a pan-Indian context has paradoxically resulted in Indians in Assam and the Northeast being turned into second class citizens in their country.

The Supreme Court, as it was dealing with only the validity of an Act, has not issued any direction in respect of the manner in which the Government ought to act, as under the separation of powers that is also not within its province. However, by rendering a finding that such large scale influx is akin to external aggression enabling the Government to invoke its emergency powers, it has shown the way.

To arrest the economic decline as well as the growth of insurgency in the Northeast, the Centre can issue a proclamation under Article 352 of the Constitution declaring Emergency in Assam and in a time-bound manner implement the provision of Assam Accord of August 15, 1985, by detecting and deporting the illegal immigrants after March 1971.

The Assam Accord of 1985, between the Government of India, the AASU and the AAGSP fixed a cut off date of March 25, 1971, after which all immigrants would be deported. Prior to this accord all illegal immigrants in India were declared aliens, liable to deportation.

The result of the Assam Accord was that for aliens in Assam, a cut off date for being declared as one was fixed. Even in such a situation the Centre failed to fulfil its obligations by detecting and deporting a measly 1,518 aliens until 2003 and which is a figure furnished by the Government to the Supreme Court.

It is also a requirement of the accord, that all migrants after March 1971 are required to be deleted from the electoral rolls. In this situation, it is all the more incumbent upon the Government to detect and remove all foreigners after March 1971, as the people of Assam relinquished a valuable right by agreeing to Bangladeshi (erstwhile East Pakistan) migrants prior to 1971 being given citizenship.

The Supreme Court has restored the faith of the indigenous inhabitants of Assam and if the political executive does not act, then it will only further deepen the alienation of the people of Northeast

by - Upamanyu Hazarika on The Pioneer.
(The writer is a leading advocate)