NEW DELHI, 6 December 2006 — The Supreme Court stumped yesterday the attempt made by the Congress-led federal government to present itself as a protector of minorities, particularly Muslims.
Strongly criticizing the government for bringing in the controversial amendment, the Supreme Court held the Foreigners (Tribunals for Assam) Order, 2006 as illegal and unconstitutional.
The decision was taken by a bench of Justices S.P. Sinha and P.K. Balasubramanian on a petition filed by Sarbananda Sonowal and Charan Chandra Deko challenging the 2006 order. The bench also imposed an exemplary cost of Rs. 25,000 to be paid to the petitioners.
Illegal Migrants (Determination by Tribunal) Act, 1983 had been earlier struck down by the Supreme Court in July 2005. The bench pointed out yesterday that while striking down the IMDT Act, the court had given necessary directions for constitution of adequate tribunals to determine illegal migrants.
Despite this, the federal government had not set up the tribunal and had instead amended the Foreigners’ Act, the bench said.
The government had on Feb. 10 this year, through the Foreigners (Tribunal) Amendment Order and the Foreigners (Tribunals for Assam) order, tried replacing the IMDT. Challenging the validity of the 2006 order, the petitioners argued that it contained the same provisions, which had been earlier struck down under the IMDT Act. These provisions had been incorporated in the 2006 order to give protection to illegal migrants, the petitioners said. The order aimed to overrule the Supreme Court ruling, the petitioners said.
They also argued that the 2006 order was arbitrary and violated article 14 of the constitution as it suffered from complete nonapplication of mind.
The court agreed with these points and struck down the controversial amendment. The bench also directed the federal government to set up tribunals within four months for determination of illegal migrants and for their deportation. The center is to constitute sufficient number of tribunals to detect alleged infiltration of thousands of Bangladeshis into Assam.
IMDT Act 1983 was applicable only in Assam with detection of foreigners in the rest of the country being done under the Foreigners Act, 1946. While under the IMDT Act, onus of proving one’s nationality or otherwise lies on the complainant, under the Foreigners’ Act, the onus is on the accused.
While the Congress has tried presenting itself as a protector of minorities’ (Muslims) interests in Assam through IMDT Act and subsequently Foreigners (Tribunal) Amendment Order, Bharatiya Janata Party has not refrained from questioning the same. According to BJP leaders, large-scale influx of “foreigners” into Assam from Bangladesh will change the demographic pattern of the state. Senior BJP leader L.K. Advani had thus described the Foreigners Amendment Order as “another legal protection for Bangladeshi infiltrators.” Left leaders have, however, questioned the claims made by BJP about large-scale influx of Bangladeshi Muslims into Assam. As pointed out by party, “The apprehension expressed so far about the size of Muslim infiltration from Bangladesh to Assam is purely speculative because there is no proof or evidence to suggest that the majority of those who have entered Assam surreptitiously from Bangladesh belong to the Muslim community.”
