[For an examination of the deportation power, read Extradition and Deportation in India]

Preliminary

Bangladeshi migration in to India has curiously, and cynically, captivated politicians and judges and commentators alike. Politically exploited by both of India’s national political parties, and even the subject of a major Supreme Court judgement in 2005 – which, in my opinion, was decided per incuriam, Bangladeshi migrants have caused the only major changes to India’s citizenship and foreigners’ laws since Independence. In recent years and months, ethnic and identity-based conflict in eastern and north-eastern India has refocused national attention on these issues. There is now talk of amending India’s laws to (i) create new procedures under the Foreigners Act, 1946 to deport non-Hindu Bangladeshis, (ii) create mechanisms to protect Bangladeshi-origin Hindus, and (iii) interfere with the scheme of the Assam Accord.

Proposals to amend the foreigners’ laws for political expediency are not new. The last time there was movement in this field was in 2006, when the UPA government issued subordinate law to countermand the Supreme Court’s judgment in Sarbananda Sonowal (2005) 5 SCC 665 which struck down the Illegal Migrants (Determination by Tribunals) Act, 1983 (“IMDT Act”). The government’s attempted cleverness was put down, the Supreme Court re-entered the field in Sarbananda Sonowal (II) (2007) 1 SCC 174, censured the administration, and quashed the subordinate law in question. Now, however, Mr. Sarbananda Sonowal – the petitioner/appellant in the previous cases as a member of the Asom Gana Parishad, which he dumped in 2011 to join the Bharatiya Janata Party – is in power at the new Central Government (he is the Union Minister for Youth Affairs and Sports). Legal change seems a realistic prospect.

At the root of the matter are two issues: (a) the phenomenon of migration from Bangladesh and the consequent “demographic invasion” of many parts of India’s north east causing, in turn, competing claims upon natural resources; and, (b) the arbitrary application of the stringent Foreigners Act, 1946, that has been criticised for its subversion of the due process regime. It was to counteract the harshness of the Foreigners Act that the Government enacted the IMDT Act through Parliament but implemented it only in the State of Assam. The Act prescribed a procedural framework to determine the status of a person alleged to be foreigner in a manner fairer than that prescribed by the Foreigners Act and more consistent with the norms of due process of law. The Supreme Court’s striking down of the IMDT Act due to its failure to detect and deport illegal foreigners is but the last in a series of attempts to respond to the presence of Bangladeshi migrants in India. The migration itself, however, is a much older reality.

Background

(a) Migration from Bangladesh

Border crossings in Bengal are not rare. First partitioned into two units in 1906 in furtherance of a colonial policy of ‘divide and rule’, Bengal’s shared ethnicity and language ensured that its division did not hamper the constant flow of people both ways across this administrative border. However, with the advent of Pakistan in 1947, East Bengal joined the Pakistani federation as a Muslim-majority province. Ethnic and linguistic tensions between the two far flung units of Pakistan fuelled an increasing sense of alienation and a secessionist movement which, in 1971, culminated in an open war fought primarily between Pakistan and India, which actively supported Bengali nationalism. The subsequent creation of Bangladesh, and the political and religious violence that accompanied it, caused a massive influx of millions of Bengali refugees into India, who were received by the Indian Government in camps and settlements across the five States that bound Bangladesh. While the majority of these refugees voluntarily returned to Bangladesh at the cessation of hostilities, many remained in India.

The remaining refugee population has been joined, in the last three decades of Bangladesh’s independent existence, by millions of impoverished Bangladeshis escaping poverty, natural disasters and growing pressure on natural resources who have crossed the Indian border in search of land and economic opportunity. These migrant settlers have complemented a floating population of seasonal and frontier migrants. Ethnic proximity and kinship ties, together with a porous international border and an allegedly complicit Bangladeshi administration, contributes to the undocumented presence in India of millions Bangladeshi migrants. The majority of these migrants allegedly live or temporarily work in West Bengal. While the states of Meghalaya, Tripura, Manipur, Mizoram, Bihar and even Delhi have received large numbers of illegal migrants, it is in Assam that the controversy first turned violent and captured national attention.

(b) Effects of the migration

Various commentators, including the Supreme Court, have responded with alarm and intolerance to this influx. Between the late 1970s and early 1980s, disaffected Assamese youth, citing their displacement from land and economic opportunity as reasons, led a campaign of protest and agitation against the migrant influx and urged the government to take decisive measures to protect the interests of indigenous Assamese. Some commentators have claimed that Bangladesh’s inability to cater to its large population has fed its aggressive policy of encouraging migration into India’s north east.

In 1998, the Governor of Assam, Lt. Gen. S. K. Sinha (retd.), presented a report of illegal Bangladeshi migration wherein he warned of the continued demographic alteration of Assam:

“The unabated influx of illegal migrants from Bangladesh into Assam and the consequent perceptible change in the demographic pattern of the State has been a matter of grave concern. It threatens to reduce the Assamese people to a minority in their own State, as happened in Tripura and Sikkim.”

The Report claims that whereas the “Muslim population in Assam has shown a rise of 77.42 per cent in 1991 from what it was in 1971”, the “Hindu population has risen by nearly 41.89 per cent in this period”. Assam’s lower districts, the Report claims, have either become Muslim-majority districts or are fast approaching that position. The Report then rather menacingly adds that,

“[t]he silent and invidious demographic invasion of Assam may result in the loss of the geo-strategically vital districts of lower Assam. The influx of these illegal migrants is turning these districts into a Muslim-majority region. It will then only be a matter of time when a demand for their merger with Bangladesh may be made. The rapid growth of international Islamic fundamentalism may provide for driving force for this demand. In this context, it is pertinent that Bangladesh has long discarded secularism and has chosen to become an Islamic State. Loss of lower Assam will sever the entire land mass of the North East, from the rest of India and the rich natural resources of that region will be lost to the Nation.” (sic)

(c) The Assam Accord

Faced with increasing Assamese unrest, the Central Government of Prime Minister Rajiv Gandhi entered into talks with the protestors; and, on 15 August 1985, concluded a Memorandum of Settlement with the All Assam Students Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP), popularly known as the ‘Assam Accord’. The Accord classified foreigners from Bangladesh into three categories based on the date of their entry into India and created a scheme for their status and treatment:

Those who entered India prior to 1 January 1966 (the baseline date) were to be regularised as Indian citizens;
Those who entered between the baseline date and 24 March 1971 (the cut-off date) were to be detected and treated in accordance with the Foreigners Act and the Foreigners (Tribunals) Order, 1964. Their names were to be deleted from electoral rolls for a period of ten years and they were to immediately register themselves in compliance with the Registration of Foreigners Act, 1939, and Rules made thereunder.
Those who entered after the cut-off date were to be detected and treated in accordance with the IMDT Act.

(d) The ‘Assam Amendment’ to the citizenship regime

In pursuance of this political settlement, the Citizenship Act, 1955, was amended in 1985 to insert a new section 6A to give legal effect to the threefold classification. Firstly, sub-section (2) deems those persons who entered India before the baseline date to be citizens of India from 1 January 1966. Secondly, sub-sections (3) and (4) require those persons who entered India between the baseline date and the cut-off date, and who have been detected to be foreigners under the Foreigners Act and Foreigners (Tribunals) Order, to register themselves in compliance with the Registration of Foreigners Act and Registration of Foreigners Rules. All foreigners so detected are to have their names struck off all electoral lists but, upon registration, are entitled to the same rights and obligations as a citizen of India including the right to obtain a passport. Sub-section (5) then deems such registered persons to be citizens of India after a period of ten tears from the date of their detection as foreigners. Thirdly, the inserted section is silent on the status and treatment of foreign migrants in Assam after the cut-off date. Ordinarily, the Foreigners Act would continue to apply for their detection and deportation. However, it was because of the stringency of the Foreigners Act and the resultant deportation of genuine Indians that Parliament enacted the IMDT Act, section 3(c) of which restricts the Act’s application to only those illegal migrants who entered India after the cut-off date.

The IMDT Act and its procedural safeguards

Aware of the stringency of the Foreigners Act, and its alleged misuse to arbitrarily deport genuine Indians and foreigners without any substantial form of due process, Parliament enacted the IMDT Act in 1983 to establish judicial tribunals to determine questions of illegality and deportation “in a fair manner”. Until 2000, the IMDT Act’s tribunals managed to secure the physical expulsion of only 1481 migrants from Assam – a meagre 0.03 per cent of their estimated total population in that state. It does appear that the Act failed its stated intention.

(a) Specialised legislation for illegal migrants

‘Illegal migrant’ was defined in section 3(1)(c) of the Act to mean a person who fit three conditions, namely:

(a) he has entered India on or after 25 March 1971;

(b) he is a foreigner; and,

(c) he has entered India without a valid passport or other travel document.

Furthermore, the Act’s application excludes:

(i) any person who was expelled from any State or India before the commencement of the IMDT Act;

(ii) any person who has been detected as a foreigner at the time of entering India; and,

(iii) any foreigner who has overstayed in India beyond the permissible limit endorsed upon his valid travel documents.

This is restrictive definition applied to only those persons who were not citizens of India and who had illegally entered India after the cut-off date and who had not been detected at the border. Since the Act did not apply to those detected at the border, the Supreme Court’s judgement describes an illegal migrant’s entry into India as “clandestine and surreptitious”. Therefore, foreigners who legally enter India with valid travel documents but subsequently overstay were not covered by the IMDT Act, but were left to be treated by the Foreigners Act. Similarly, the Act did not apply to illegal entrants before the cut-off date; and, did not apply to citizens of India.

It has been claimed that the IMDT Act violated the equality clause of the Constitution by arbitrarily classifying foreigners and treating them differently. However, there can be little doubt that foreigners can be treated as a special class, and illegal migrants a further sub-class within the class of foreigners, to sustain the validity of the special treatment of the IMDT Act consistent with the equality dispensation laid down in Article 14 of the Constitution. The fact that illegal migrants constitute a special class of foreigners is easily borne out by the special executive and legislative action undertaken by the government – the separate laws – to deal with the influx.

(b) Selective application in Assam

The IMDT Act was brought into force by the Central Government only in the State of Assam. Section 1(3) deems the Act to have come into force in Assam on 15 October 1983. However, the Act extends “to the whole of India” [section 1(2)] and may be brought into force in any other State by the Central Government’s notification of the same in the Official Gazette [section 1(3)]. Therefore, the claim that the Act violated the equality clause of the Constitution by restricting its application to illegal migrants in Assam alone is wrong. The solution to this problem was not to strike down the Act, which extends itself to the whole of India subject to executive notification, but to push the Central Government to implement the Act equally in all States facing illegal migration.

(c) Establishment of tribunals and procedural due process

Powers

To prevent arbitrariness in the determination and deportation of foreigners as experienced under the Foreigners Act, the IMDT Act established judicial tribunals to determine whether a person is or is not an illegal migrant. Appointments to these tribunals must have been made from among sitting or retired District Judges or Additional District Judges [section 5]. The tribunals were vested with certain powers of a civil court to conduct their determination of the status of a person [section 9]. Originally, the Act provided two ways in which tribunals were called upon to determine the status of a person:

(a) on a reference made by the Central Government [section 8(1)]; and,

(b) on an application made by any concerned person, subject to certain conditions [section 8(2)].

In 1988, the Act was amended to, inter alia, prescribe a third means of invoking the determination of the tribunal:

(c) on a reference made by the Central Government from an application made by a concerned person to the Central Government [section 8A(1)].

This addition was made because it was felt that the power given to concerned persons by section 8(1) to refer the cases of suspected illegal migrants was being abused. The new section 8A(1) provided that only a total of ten applications were to made by the same concerned person each accompanied by declarations of another person living within the same jurisdiction; and, only ten such declarations were to be made by such other persons.

Procedure

Unlike the Foreigners Act, the IMDT Act went into considerable detail on the procedure for the disposal of such references and applications by the tribunal:

(a) on a reference by the Central Government under sections 8(1) or 8A(1), the tribunal shall serve notice on the person alleged to be a migrant, along with a copy of the reference, to make submissions in his defence within thirty days, the time period being extendable if the person alleged to be a migrant was prevented by sufficient cause from representing himself [section 10];

(b) on an application by a concerned person under section 8(2), the tribunal shall call upon the Superintendent of Police in that district to conduct an inquiry and submit a report on the basis of which the tribunal may,

(i) after giving the applicant opportunity to be heard, find that the alleged person is not an illegal migrant and reject the application [section 11(1)], or

(ii) call upon the alleged migrant to make submissions in his defence within thirty days, the time period being extendable by sufficient cause, if there are reasonable grounds to believe that the person is indeed an illegal migrant [section 11(2)].

In exercise of powers conferred on the Central Government by section 28 of the Act, the Illegal Migrants (Determination by Tribunals) Rules, 1984 [the “IMDT Rules”] were made. Rule 2(ii) recognised and defined a ‘competent authority’ to be the Central Government, or any State Government or any officer subordinate to either government who is so empowered. Normally, the Superintendent of Police was recognised as the Competent Authority and vested with crucial powers. Before a reference under either sections 8(1) or 8A(1) could be made, the Competent Authority was required to conduct a preliminary inquiry [Rule 3]. To conduct the preliminary inquiry, the Competent Authority could direct an Inquiry Officer, not below the rank of Sub-Inspector of Police, to elicit information, maintain a detailed diary and submit a report [Rules 4 – 7]. The Report was referred to a Screening Committee, set up in each sub-divisional level and comprising the Sub-Divisional Magistrate and police officer not below the rank of Deputy Superintendent of Police, and the Screening Committee would solemnise the information and make its recommendations on the status of the alleged migrant to the Superintendent of Police [Rule 8]. Finally, on the recommendations of the Screening Committee, the Competent Authority, if it appeared to it that there arose a question as to the status of the alleged migrant, could refer the matter to the tribunal.

After receiving references or applications, the tribunal would, after taking adduced evidence and making inquiries and hearing appropriate persons, decide by order whether the person is or is not an illegal migrant [section 12(1)]. However, where there were differences in opinion between the Tribunal’s members, the Chairman of the Tribunal could state the differences by reference to the President of the Appellate Tribunal for another decision by members of another tribunal [section 12(2)].

Appeal

All such orders by the tribunals were subject to the decision of the Appellate Tribunal, but were final and not to be called into question in any other court [section 12(4)]. All parties to the matter before the tribunal – the alleged migrant named in a reference under sections 8(1) or 8A(1) or in an application under section 8(2), the applicant and the Central Government – had the power to appeal the decision of the tribunal to the Appellate Tribunal [section 14], appointments to which could only be made from sitting or retired Judges of the High Courts. The Appellate Tribunals were also vested with the powers of a civil court and could pass orders only after giving the parties a reasonable opportunity of being heard.

(d) Burden of proof on the deporting power

As a general rule, the burden of proving a fact rests on the party making the affirmative allegation with regard to that fact and not on the party denying it [See, sections 101 – 103 of the Indian Evidence Act, 1872]. However, there are exceptions to general this rule. One such exception is that where any fact to be proved is peculiarly within the knowledge of a party, it is for him to prove it [See, section 106 of the Indian Evidence Act, 1872]. Therefore, traditionally the party making an allegation has the burden of proving it. However, the Foreigners Act places the burden of proving that a person is not a foreigner on the person alleged to be a foreigner and not on the government party alleging him to be a foreigner [section 9 of the Foreigners Act].

The IMDT Act made no such provision. In the absence of an express invocation of the exception, the general rule governing the burden of proof would prevail. Therefore, under the scheme of the IMDT Act, it was for the party alleging that a person is an illegal migrant – either the Central Government or an applicant – to prove the claim. While the reversal of the burden of proof in the Foreigners Act has resulted in many illegal migrants being deported from other States, this has often been achieved at the cost of procedural due process. At the same time, much of the criticism of the IMDT Act was directed at its return to the conventional rule of burden of proof. This created a peculiar situation where opponents of the IMDT Act criticised its use of an indisputably fairer procedure but ignored the imperative need for laws to conform to accepted norms of due process.

(e) Poor expulsion record

Once determined by the tribunals of the IMDT Act to be an illegal migrant, the Central Government was empowered to have that person removed from India [section 20]. In its judgement, the Supreme Court relied on statistics provided by the Government of Assam to illustrate the ineffectiveness of the IMDT Act:

Total number of enquiries initiated: 3,10,759
Total number of enquiries completed: 3,07,955
Total number of enquiries referred to Screening Committee: 3,01,986
Total number of enquiries made by the Screening Committee: 2,98,465
Total number of enquiries referred to IM(DT)s: 38,631
Total number of enquiries disposed of by IM(DT)s: 16,599
Total number of persons declared as illegal migrants: 10,015
Total number of illegal migrants physically expelled: 1,481
Total number of illegal migrants to whom expulsion order served: 5,733
Total number of enquiries pending with Screening Committee: 3,521
Total number of enquiries pending with the Tribunal: 22,072

At the same time, the Supreme Court noted that about 4.89 lakhs of illegal migrants were deported from West Bengal using the Foreigners Act between 1983 and 2001. However, this is not a realistic figure; a substantial number of migrants working in West Bengal are seasonal or frontier migrants – crossing the notoriously porous border with regularity and re-entering India to work irrespective of a previous deportation. Also hidden within this figure are an alarming number of Bengali Muslims – Indians, but victims to a cruel communalisation of border politics that opportunistically uses the stringent Foreigners Act to deny poor Indians of their citizenship.

The Foreigners Act and its scheme for deportation

(a) Wide powers of deportation

The Foreigners Act prescribes more stringent procedures for deporting foreigners. As its Statement of Objects and Reasons declares, the Act was born out the “needs of the war emergency”. Its continued application in independent India for more than sixty years after the end of the Second World War can only be seen as an indication of the government’s desire to retain almost absolute powers to deal with foreigners. Section 3 vests the Central Government with the power to issue orders to provide for all aspects of the entry, stay and exit of foreigners from India. There have been a number of Orders which have been framed under Section 3, including those placing restrictions on the movement, activity and residence of foreigners; and, requiring their proof of identity and regular appearance before the police. The extent of this executive power is extensive; it is only limited by the need to conform to the equality and life, liberty and due process provisions of the Constitution of India [Articles 14 and 21].

In addition, Section 5 of this Act forbids foreigners from changing their name while in India; Section 6 requires masters of ships and pilots of aircraft to maintain records of travelling foreigners; Section 7 obliges hotel-keepers to maintain records of the stay of foreigners; Section 9 places the burden of proving that a person is not a foreigner on that person; Section 12 provides for the delegation of these powers; and, Section 14 provides penalisation of foreigners found in contravention of the Act or any Order made thereunder. The Foreigners Act gives the executive untrammelled powers in relation to the power of deportation that has been generally exercised by the executive free from judicial review. This power is given to the Central Government by Section 3(2)(c) of the Foreigners Act, 1946 (This is in addition to the power to refuse entry for non-fulfilment of conditions inviting instant deportation). This power may be widely exercised (a) where a foreigner violates the conditions of his legal entry into, and stay, in India; (b) where a foreigner breaks the criminal law of the country; and, (c) where a minister certifies that the continued presence of a foreigner in India is not conducive to public interest. (This generally flows from Section 3(2)(c) of the Foreigners Act, 1946 and the practice followed under it).

The power of the executive to deport foreigners from India is unrestricted. In Hans Muller of Nuremberg AIR 1955 SC 367 at pr. 36, the Supreme Court held,

“The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.”

This position has been upheld by the Supreme Court in many cases thereafter (See, Louis De Raedt (1991) 3 SCC 554 at pr. 13 and Sarbananda Sonowal (2005) 5 SCC 665 at prs. 74-79).

(b) Due process of the Foreigners (Tribunals) Order

In 1964, the Central Government issued the Foreigners (Tribunals) Order, which provides a fairer procedure for detecting foreigners. Paragraph 1 of Order empowers the Central Government to constitute tribunals to determine “the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946”. Paragraph 3 of the Order prescribes a nominal due process regime:

“The Tribunal shall serve on the person to whom the question relates, a copy of the main grounds on which he is alleged to be a foreigner and give him a reasonable opportunity of making a representation and producing evidence in support of his case and after considering such evidence as may be produced after hearing such persons as may deserve to be heard, the Tribunal shall submit its opinion to the officer or authority specified in this behalf in the order of reference.”

However, it is left to the discretion of the Central Government to refer an alleged foreigner to the Foreigners Tribunals constituted under the Order of 1964. This is a power that is rarely used; instead, the government exercises its powers under Section 3 of the Foreigners Act to deport or restrict alleged foreigners, without the due process of the Order of 1964. In Sarbananda Sonowal’s case in 2005, while striking down the IMDT Act, the Supreme Court ordered the executive to constitute Foreigners Tribunals to detect and treat foreigners in Assam. Therefore, while the protection of the procedurally cumbersome specialised migrants’ tribunals was taken away, the Supreme Court did not leave migrants in Assam up to the whims of the executive’s deportation powers.

Principles to Future Legal Changes

It is imperative that the government is empowered to deal with foreigners illegally on its territory. In most common law jurisdictions, the power to remove illegal aliens is reserved for the discretion of the executive with minimal judicial intervention. In India, this scheme is upheld by the Foreigners Act. However, it is equally important that laws permitting executive action against aliens contain at least minimal due process safeguards. The lack of such safeguards in the Foreigners Act goes to the root of its misuse. The Foreigners Act has been used in the past to remove Indian citizens from India on the pretext of their being illegal aliens. This abuse of the government’s deportation powers has taken place primarily because of (a) the lack of due process in the deportation process and, (b) the excessive delegation of the Act’s vast powers.

At the same time, it is also important that statutory due process is not dictated by political compulsions to render the deportation power ineffective. The IMDT Act’s effectiveness as a tool to detect and deport illegal migrants suffered heavily due to its reliance on extraordinarily cumbersome procedures in the guise of due process. Therefore, any new changes in the deportation powers under Foreigners Act to introduce tribunals for a due process regime are welcome, but must abide by the following minimum considerations:

• access to tribunals must be available to all foreigners or those alleged to be foreigners,
• the executive’s vast deportation power must be made subject to the tribunals across the board, instead of leaving it up to the government to refer matters to the tribunals,
• the tribunals must fulfil mandatory due process criteria, including:
  • the right of an alleged foreigner to be informed of the grounds of his proposed deportation,
  • the right of an alleged foreigner to make oral and written representations against the proposed deportation, and
  • the right of an alleged foreigner to present evidence in support of his case.
• the amendments must extend to the whole of India,
• the right and access to legal representation must be upheld; and, in the absence or inability to engage a lawyer, the State must extend its legal aid services,
• no deportation may be made against refugees irrespective of the illegal nature of their entry into or stay in India,
• the power given to Indian citizens by the IMDT Act to refer people to the tribunals for determination of their status must not be replicated,
• the proceedings of the tribunals must be conducted openly and its decisions must be published, and
• the appointment of members to the tribunals must be through a fair and transparent procedure and their tenure must be secured from detrimental government interference.