Speaking a foreign tongue
The Centre discarded constitutional propriety while passing laws related to disputes over citizenship in Assam, writes Sanjib Baruah.
The Centre discarded all constitutional propriety while passing laws related to disputes over citizenship in Assam. It must listen to the Supreme Court and end this political skulduggery
To anyone following the UPA government’s clever, but ill-considered reaction to the Supreme Court’s 2005 verdict on the Illegal Migrants (Determination by Tribunals) Act, the court’s ruling on the Foreigners (Tribunals for Assam) Order, 2006, will come as no surprise. Whether the court should have waxed eloquent on illegal immigration and the threat to the nation’s security is a moot question. But it is hard to fault its finding that the amendment to the 1964 Foreigners Order is an attempt to circumvent the court’s earlier ruling.
Neither the IMDT law, nor the notification amending the Foreigners Order, meet the test of a good law — in the sense of conformity with basic jurisprudential norms, procedures and principles. Both make Assam an exception when it comes to the enforcement of the country’s citizenship laws. Laws that apply to the country as a whole put the burden of proving citizenship status on the person concerned. The Assam-specific IMDT law and the Assam exception inserted into the Foreigners Order reverse that burden. The IMDT law provided for special tribunals to determine the citizenship status of suspected foreigners in the state.
The apex court, in its 2005 ruling, gave statistical evidence of the "insurmountable difficulties” that the IMDT law had created in deciding cases of disputed citizenship status in Assam. It directed that tribunals, governed by standard pan-Indian rules, take up the cases pending in Assam and told the government to set up enough such tribunals to deal with those cases. But instead of following the court’s order and constituting such tribunals, the government, says the court, chose “to make the 1964 order itself inapplicable to Assam”.
In a constitutional democracy, legislatures cannot just pass laws to suit their whims or to serve narrow political interests. There has to be attention paid to whether laws are consistent with fundamental constitutional principles. There lies the difference between the ‘rule of law’ and ‘rule by law’. But political considerations — and an utter lack of concern with constitutional proprieties — have shaped the Congress party’s approach to this issue. It was hardly a coincidence that the notification amending the Foreigners Order was announced on the eve of the elections to the Assam assembly. Reacting to last week’s verdict, Chief Minister Tarun Gogoi said that his government is firmly committed to saving minorities from harassment “in the name of” identification of foreigners. One cannot fault an elected chief minister for wanting to do this. But he has to find a way of doing it that can pass judicial scrutiny.
Neither Gogoi, nor anyone else, disputes that there is a large number of illegal immigrants from Bangladesh in Assam. But a large section of Assam’s population being of East Bengali origin, efforts to identify illegal immigrants carry the risk of profiling ethnically-marked individuals. Despite that, the implication of the court’s two rulings is that the government cannot resort to methods deliberately aimed at sabotaging the process of determining the citizenship status of suspected foreigners.
Apparently, apprehensions that Indian citizens would suffer led the government to make an Assam-specific amendment to the Foreigners Order. But “adequate facts, nay, no fact,” said the court, were presented to “justify such apprehension”. The court thus found the amendment to be no more than “a cover-up for non-implementation of the directions of this court”. The indifference to constitutional proprieties has had costs in terms of the legitimacy of pan-Indian institutions. Assam’s unending political turmoil, arguably, is symptomatic of this crisis of legitimacy. The circumstances under which the IMDT law was passed by Parliament in 1983 are worth remembering.
The 1980 election that elected the seventh Lok Sabha is known in the rest of India for sweeping Indira Gandhi back to power. But in Assam, the memory of that election is more somber. The Assam movement had just begun and because of a call for a poll boycott, elections could be held in only two of Assam’s 14 constituencies. Assam’s representation in Parliament improved with the by-elections that took place along with the state assembly elections. But those were the blood-soaked elections of February 1983. Elections could not be held in many polling stations, some candidates were elected to the state assembly unopposed and others were elected from constituencies where the turnout was sometimes less than 1 per cent of registered voters. Thus a Parliament where Assam was grossly under-represented had passed the IMDT law.
The goal of this piece of stealth legislation was to preempt any action on the key demand of the Assam movement on the question of foreigners. On this particular issue, the Assam Accord of 1985 was, therefore, meaningless so long as the IMDT law was in force.
The Supreme Court’s rulings seek to end such political skulduggery and remind our politicians that laws must conform to constitutional proprieties. A de facto institutional dialogue between the court and Parliament can produce a course of action that can pass judicial scrutiny. But for that to happen, the government must pay attention to what the court is trying to say about laws and constitutional principles. Were we to follow such a course, our democratic institutions might gain in legitimacy in North-eastern eyes, and we may soon find that we have to turn less to counter-insurgency in our approach to the region.
Sanjib Baruah is in the Indian Institute of Technology, Guwahati, and the Centre for Policy Research, New Delhi.