Tuesday, October 12, 2004

Assessment: Demography phobia - A Third "Islamic Republic" in the Sub Continent? - Part 3

[The executives can’t tackle the problem of illegal migrants. The legislatures won’t tackle it. And the example of the IMDT Act shows up the courts’ failings.Here is the shortest possible chronology of the ruinous Illegal Migrants (Determination by Tribunals) Act:]

How we deal with life and death matters

ARUN SHOURIE

Read - Assessment: Demography phobia - A Third "Islamic Republic" in the Sub Continent? - Part 2

The executives can’t tackle the problem of illegal migrants. The legislatures won’t tackle it. And the example of the IMDT Act shows up the courts’ failings

Arun Shourie Here is the shortest possible chronology of the ruinous Illegal Migrants (Determination by Tribunals) Act:

• November 23, 1946: The Foreigners Act 1946 was enacted. This gave to the Central Government certain powers in respect of the entry of foreigners into the territory of India, their presence therein and their departure from India.

• September 23, 1964: The Foreigners (Tribunals) Order 1964 was put out by the Central Government. This provided that any question as to whether a particular person is or is not a foreigner was to be referred to the Tribunals that were being constituted for the purpose.

• October 15, 1983: Despite the existence of the Act of 1946 and despite the fact that it applied to the whole of India, the Illegal Migrants (Determination by Tribunals) Act was enacted in 1983 by Parliament to provide for the determination of illegal migrants and their deportation. This Act was made applicable only to Assam, and more specifically only to those foreigners who had entered into India after March 25, 1971, and were not in possession of valid passports or travel documents or other legal authority to enter India.

• August 15, 1985: A Memorandum of Settlement was entered into between the All Assam Students’ Union (AASU), the State of Assam and the Union of India, commonly known as the ‘Assam Accord’. Among other things, the Accord provided:

‘‘The Government will give due consideration to certain difficulties expressed by AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983.’’

• December 7, 1985: In pursuance of the Accord, the Citizenship Act 1955 was amended in 1985 and a new Section 6A was inserted into the Act.

• January 27, 1990: A ‘‘time frame’’ for ‘‘clause-wise implementation’’ of the Assam Accord was prepared, and signed by the Union Home Ministry and the Chief Secretary of Assam. It stated that a decision on the repeal of the Act of 1983 would be taken by February 28, 1991.

• September 20, 1990: At a meeting between the Union Home Minister, Chief Minister of Assam and representatives of AASU, the Government ‘‘noted’’ the demand of the representatives of AASU that the Act of 1983 be repealed, and assured the representatives of AASU that it would initiate discussions with other political parties on the subject.

• August 11, 1997: At a meeting regarding the implementation of the Accord, the Central Government stated that although necessary administrative and organisational framework in the form of setting up tribunals and providing requisite staff to them had been set up, the results achieved had been extremely poor, and that there was a need to analyse carefully why the system had failed and what needed to be done to achieve the objective of detection and deportation of foreigners. On behalf of AASU, its president stated at the meeting that the former prime minister had visited Assam in October 1996 and had informed AASU that a decision had already been taken to repeal the IMDT Act.

• April 6, 1998: At a meeting between officials of the Ministry of Home Affairs, Government of India, officials of the government of Assam and representatives of AASU, it was decided that the proposal made by the officials of the government of Assam and the representatives of AASU seeking the repeal of the Act of 1983 would be put up to the new Government for a decision.

• September 23, 1998: Another meeting was held between the Government of India, government of Assam and representatives of AASU, the parties to the Assam Accord. The participants were informed that the repeal of the IMDT Act was ‘‘under the active consideration’’ of the Government.

• February 1999: In his address to Parliament, the President of India stated that the repeal of the IMDT Act was ‘‘under the active consideration’’ of the Government.

• March 18, 1999: At a meeting between representatives of the governments of India and Assam, and the representatives of AASU, the Government reiterated that the repeal of the IMDT Act was ‘‘under the active consideration’’ of the Government. Measures being taken to identify foreigners—for example, issue of photo identity cards—and the steps being taken to seal the border were also discussed.

• July 1, 1999: At a further meeting, the representatives of AASU urged that an ordinance be issued to repeal the IMDT Act. They were again assured that the matter was ‘‘under the active consideration’’ of the Government of India.

As nothing but nothing was happening, an erstwhile president of AASU, Sarbananda Sonowal, thought it would be a good idea to take the matter to the Supreme Court—after all, here was an institution that had been seizing the initiative on so many matters in which the Executive had not acted, or not been able to act. Here was an institution that had done so on so many matters that spelled much less peril to the country’s security.

Accordingly, he filed a petition in the Supreme Court. He argued that the Act ought to be struck down as it so patently flew against the Constitution, and as it was patently discriminatory—laws applicable in the rest of the country made it so much easier to detect and deport foreigners than this law that had been imposed on the region of the country that was most afflicted by their invasion.

He had the greatest difficulty in finding a lawyer who would argue the case in the public interest. I had to request Mr Ashok Desai to take up the case. He did so willingly. That was in March 2000. Since then the case has come up a score of times. Several Chief Justices have come and gone. The AGP government in Assam, which had filed an affidavit supporting the petition, has been replaced by a Congress government. This new government has filed an ‘‘additional affidavit’’—reversing the stand of the government of Assam as stated in its original affidavit! The Government at the Centre too has changed. Successive orders of the Supreme Court tell the tale. Here they are:

• April 17, 2000: Let a copy of the Writ Petition be served on the learned amicus in Writ Petition (c) No 125/98. To be heard along with that Petition.

• May 1, 2000: Learned Additional Solicitor General prays for six weeks’ further time to furnish the status report. We grant the prayer.

• July 17, 2000: The delay in filing the status report is condoned. Copy of the status report has been furnished to learned counsel for the parties. Responses, if any, to the status report may also be filed within four weeks.

• August 28, 2000: Mr Ashok H Desai, learned senior counsel appearing for the writ petitioner in Writ Petition(c) 131/2000, has drawn our attention to an affidavit filed on behalf of the Union of India and, in particular, to the position detailed at page 214 of the ‘‘updated status position’’ attached to that affidavit, wherein it is stated that:

‘‘The Government is of the view that the Illegal Migrants (Determination by Tribunals) Act 1983, in its application to the State of Assam alone, is discriminatory. The proposal to repeal this Act is under active consideration of the Government.’’

Mr Desai has also drawn our attention to an affidavit filed on behalf of the State of Assam, respondent No 2, wherein it is stated on the affidavit of Shri D J Hazarika, Officer-on-Special Duty to the Government of Assam, that: ‘‘The State Government has thus been insisting upon the Central Government for repeal of the IMDT Act. Now, in the Counter Affidavit filed by the Central Government, it has been admitted that the Act is ‘discriminatory’ in nature and on such admission, the Act is liable to be struck down as unconstitutional.’’

Mr R N Trivedi, learned Additional Solicitor General, submits that he stands by the affidavit filed on behalf of the Union of India, but would like to seek further instructions in that behalf and prays for the matter to be adjourned and taken up in January 2001. We grant his prayer.

In the meanwhile, ‘updated status reports’ may be filed by the Union of India and the concerned State Governments.

List the matter in January 2001 for directions.

• January 8, 2001: WP(c) 125/1998 & 131/2000

Heard Rule

Learned counsel for the parties submit that they have already filed counter/rejoinder. The additional document is still to be filed, let the same be filed within six weeks.

The petitions shall be posted for final hearing before a three-judge Bench. List after six weeks for directions.

W P (c) 7/2001

Mr R K Jain, learned Senior Counsel appearing for the petitioners, submits that prayer (a) from the Prayer Clause may be deleted. We grant the prayer.

Issue notice.

Tag with W P (c) 125 of 1998.

• February 26, 2001: Issue notice in the impleadment applications. Let the parties complete pleadings in all these petitions within six weeks.

Learned counsel for the parties shall also, within two weeks from the date of completion of the pleadings, file brief written submissions, not exceeding five pages each. They shall be at liberty to exchange written submissions between themselves. Learned counsel for the interveners are also permitted to file their response to the writ petitions as well as written submissions.

The matter shall be listed for directions to fix time schedule for hearing after eight weeks.

• July 9, 2001: Learned counsel for the State of Assam prays for four weeks time to file a further affidavit. We grant his prayer. An advance copy shall be furnished to learned counsel opposite. Rejoinder, if any, within three weeks, thereafter.

Post for directions after seven weeks.

• October 15, 2001: W P (c) No. 125 of 1998

An application has been filed on behalf of the State of Assam seeking permission to file ‘‘a new counter affidavit’’. The application is supported by an affidavit of the Commissioner & Secretary, Home Department, Government of Assam. Mr Kapil Sibal, learned senior counsel appearing for the State, submits that he does not press prayer (a), and that the affidavit which has been filed along with this application may be treated as ‘‘an additional affidavit’’. Learned counsel appearing for other parties has no objection to that course being adopted. We, therefore, take on record the new affidavit as an additional affidavit filed on behalf of the State of Assam and reject prayer (a). The application is allowed in above terms.

Mr Ashok Desai, learned senior counsel, prays for and is granted four weeks’ time to file his response to the additional affidavit filed by the State. All other parties may also file their response, if any, within the same period, to the additional affidavit.

List the writ petitions after four weeks before a three-judge Bench for further proceedings.

I A No. 4 of 2001

The applicant through their learned counsel is permitted to assist the Court at the time of hearing of the case. The application for impleadment is, accordingly, disposed of.

January 9, 2002: Put up this matter along with WP(c) No. 131/2000 on January 18, 2002.

January 18, 2002: All these matters deal with one and the same question, namely, the validity of the Illegal Migrants (Determination By Tribunals) Act 1983. In view of the controversy, rule was issued in all these matters. All the respondents have entered appearance and have filed their respective show cause.

Put up for final disposal in the third week of April 2002.

April 15, 2002: On perusal of the prayers made in these petitions, it appears that in Writ Petition(c) No. 131/2000, the validity of Act 39/83 is under challenge and learned counsel for the parties pray that this matter may be heard and disposed of early. Mr Jain, learned senior counsel, also says that in Writ Petition(c) No. 7/2001, the same prayer has been made. In other matters, the question of implementation of the provisions of the Act and sealing of the border etc are under consideration.

We, therefore, direct that these two petitions may be delinked from this batch of cases and posted for hearing on 22nd April, 2002. The counsel are requested to file written submissions in these two matters, if not already filed, in the meantime.

Rest of the matter may be put up in July 2002.

• April 22, 2002: The petitioner has filed written submissions. Mr Sanghi appearing for the State of Assam is requested to file his written submissions.

All other parties who want to argue must file their written submissions and serve copy of the same on the respective counsel for 10th of May, 2002. After hearing Mr Desai for some time and the learned Solicitor General as well as Mr Sanghi, appearing for the State of Assam, it appears that the matter cannot be concluded today.

We, therefore, direct that these petitions be listed on 13th of August 2002, along with WP(C) No. 581/2001, as it is submitted that the validity of Section 6A of the Citizenship Act 1955 is also under challenge. Pleadings be completed in that matter, in the meantime.

• August 13, 2002: The matter is not listed.

• October 28, 2002: Put up on 20th November 2002.

• November 20, 2002: The matter did not reach.

• January 24, 2003: List the matter in the month of April 2003 for directions.

• April 7, 2003: List the matter for directions in July 2003.

• July 7, 2003: It is brought to our notice that a Bill has been introduced in Parliament for repeal of the Act which is impugned in the present petitions. In that view of the matter, we adjourn the hearing of these petitions. Let these petitions be listed in January 2004.

• January 2004: The matter is not listed.

• March 16, 2004: Call in the month of July 2004 as requested. By this time, the country was in the midst of the campaign for general election. The case was adjourned again. And that is where things remain. The executives can’t tackle the problem. The legislatures won’t tackle it. And this is how the courts tackle it.

Indian Express 11/10/2004