INDIAN SUPREME COURT DEFENDS ASSAM AGAINST

C O N F I D E N T I A L NEW DELHI 005913

SIPDIS


E.O. 12958: DECL: 07/29/2015
TAGS: PGOV PBTS PINS SMIG PREL BD IN
SUBJECT: INDIAN SUPREME COURT DEFENDS ASSAM AGAINST
"BANGLADESHI AGGRESSION"

REF: A. NEW DELHI 4330


B. NEW DELHI 5318

Classified By: PolCouns Geoffrey Pyatt, for Reasons 1.4 (B, D)


1. (C) Summary: Amidst continuing anguish over the growing
number of illegal Bangladeshi immigrants in India, the
Supreme Court on July 13 repealed the Illegal Migrants
(Determination by Tribunals) (IMDT) Act in Assam, marking a
victory for the BJP and Asom Gana Parishad (AGP) and paving
the way for more liberal deportation procedures. Many
Indians have grown weary of continued Bangladeshi migration
to the Northeast region, and attribute migrants to changing
demographics, a rise in crime, a drop in wages, and possible
connections to terrorists. Assam has borne the brunt of this
migration. The Congress government, which passed the IMDT
Act in 1983, has been accused of catering to mostly-Muslim
Bangladeshi migrants in order to use them as a vote bank, and
of allowing "demographic aggression" in Assam. The total
lack of political will by the Congress-led government, as
well as logistical obstacles to implementation will likely
blunt any surge in deportations, but the repeal will
nonetheless intensify communal politics in Assam and hurt the
Congress party's electoral prospects ahead of spring 2006
elections there. FM Natwar Singh's August 6 trip to Dhaka
will provide an opportunity to discuss migration issues and
temper any negative effects of the repeal on Indo-Bangla
relations. End Summary.

IMDT: A Clever Sham to Build a Voting Block
--------------


2. (U) A Congress Party government passed the IMDT Act in
1983 at the height of an anti-foreigner (read: Bangladeshi)
uprising spearheaded by the All Assam Student's Union (AASU)
in response to the growing number of Bangladeshi refugees in
Assam. The new law supplanted the Foreigner's Act, which
still governs the rest of the country, and was intended to
assuage the anti-immigrant groups by setting up a judicial
mechanism in the form of tribunals to determine the
nationality of a suspect. In practice, it made deportations
more difficult by moving the burden of proof of nationality
from the suspect (as under the Foreigner's Act) to the
accuser, i.e., in most cases, the government, but also
private citizens and entities. The Congress government used
the act to pay lip service to expulsions for electoral gain
while allowing illegal immigration to continue unabated.


3. (SBU) As a result, the IMDT Act became widely viewed by
ethnic Assamese, their parties, and the national BJP party as
a hurdle to identifying and deporting illegal Bangladeshi
migrants in Assam. Largely-Hindu opposition parties such as
the AGP and the BJP deemed the law "migrant friendly" and
accused the Congress of shoring up its vote base by giving
Muslim Bangladeshis the right to vote. As the AGP, All-Assam
Students' Union (AASU) and BJP began to agitate against the
ineffective and duplicitously-named law, Congress defended it
on the ground that it helped prevent genuine citizens from
being harassed. After former ASSU President and AGP MP
Sarbananda Sonowal registered a Public Interest Litigation
(PIL) against the bill in 2000 and the NDA government
introduced a bill in Parliament to repeal the act in May
2003, the Supreme Court struck it down on July 12, 2005.

Court: IMDT was Ineffective and Unconstitutional
-------------- --------------


4. (U) In its 114 page judgment, the Supreme Court ruled


that the IMDT's lengthy and complicated deportation policies
were not adequate to protect the state and its residents from
illegal immigrants. Accusing the GOI of failing in its "duty
to take all measures for (Assam's) protection as enjoined in
Article 355 (of the Indian Constitution)," the court said
that "Assam is facing external aggression and internal
disturbance on account of large-scale illegal immigration of
Bangladeshi nationals." As a result, life in Assam is
"wholly insecure and the panic generated thereby created a
fear of psychosis." The verdict blamed the IMDT Act for
"coming to the advantage of illegal migrants, as any
proceedings initiated against them ends in their favor and
enables them to have a document having official sanctity to
the effect that they are not illegal migrants."


5. (U) Since the IMDT was passed in 1983, deportations in
Assam have reportedly decreased considerably compared to
neighboring states. The "Economic Times" reported that
300,000 people were deported from Assam between 1962 and

1984. During the first twenty years of the IMDT Act, only
about 1500 illegal migrants were deported from Assam. By
comparison, under the Foreigner's Act in West Bengal, 489,046
people were deported from 1983 to 1998. A "Times of India"
story reported that the Muslim population of Assam witnessed
a 77 percent growth between 1971-1991, while Hindu growth
registered a 41 percent increase. (Note: Immigration numbers
are difficult to find and often exaggerated to support
opposition claims. An Institute of Peace and Conflict
Studies article claimed that the latest census figures
actually show that the overall growth rate in Assam between
1991 and 2001 was only 18 percent, which is three percent
less than the national average. End Note.)

Put the Blame on Vote-bank Politics
--------------


6. (C) Anti-immigration groups have accused Congress of
producing a demographic change in the Northeast by illegally
giving status and voting rights to minorities. In a recent
editorial, BJP MP Balbir Punj reports that the 2001 census
showed that Muslims have become or are near to a majority
population in ten out of 23 districts. An Institute for
Conflict Management study by Wasbir Hussain points out that
Muslim voters are a deciding factor in almost half of Assam's
126 State Assembly constituencies. Suhas Chakma of the Asian
Center for Human Rights explained that the perceived increase
in Muslim voters has led to communal discord, and as a
result, most Congress opposition groups run almost entirely
on anti-immigration platforms.


7. (C) Although Congress publicly supported the IMDT Act,
Kirip Chaliha, an MP of the party from Assam, told Poloff
that the repeal has been met with a "majority sense of
relief." Acknowledging that the act "put the government and
all of its apparatus in favor of the migrants," he said the
repeal was important to the people of Assam as a "signal that
the government will not legitimize the presence of
Bangladeshi migrants." Although Congress must publicly
oppose the repeal, Chaliha agreed privately that the act was
a detriment to security and that the government "can-not be
blind on infiltration." Despite the public pressure on
Congress to fight against the repeal and introduce further
legislation ahead of state elections in 2006, Chaliha told
Poloff that the party will privately not oppose the decision.
Congress Chief Minister of Assam Tarun Gogoi said that he
would create an alternative law, but Assam's UPA Cabinet has
settled for creating a Group of Ministers to review the
repeal and "come up with an appropriate response."


BJP Sees National Advantage in Backwoods Politics
-------------- --------------


8. (C) A perception among Muslims that Congress failed to
protect them may hurt the party's electoral chances and give
a boost to opposition BJP and AGP parties in Assam.
Political Counselor for the Bangladesh High Commission
Mashfee Binte Shams worried that an apparent split in the AGP
and a weak BJP base will cause opposition parties to increase
agitation against suspected migrants, most of whom are
Muslim. Suhas Chakma noted that the repeal would initially
help the opposition parties, but predicted this court victory
would take the steam out of their anti-immigrant campaigns
and actually hurt their support in the long run. Emboldened
by the court victory, the BJP brought the Congress's "abysmal
failure to protect the eastern borders against illegal
immigration" to the national spotlight by filing a motion in
Parliament on July 26 to discuss the issue on a national
stage. If the debate in Parliament resonates well, the
illegal immigration may play a larger role in BJP national
platforms.

Don't Expect the Assam Congress to Ramp Up Deportation
-------------- --------------


9. (C) The repeal of the IMDT Act has simplified the
process of removing illegal migrants, but the lack of
political will in Congress-led Assam and obstacles to
implementation will likely prevent a big rise in the number
of deportations. Assam MP Chaliha emphasized that Muslims
would not really suffer from the repeal as long as Congress
was in power because there is no political will under the
ruling government to mobilize the police, courts and
politicians to find and deport illegal migrants. Even if the
AGP or BJP come to power in the upcoming elections, Smruti
Pattanaik from the Institute of Defense Studies and Analyses
(IDSA) pointed out that proving that an Assamese resident is
illegally present is extremely difficult because Bangladeshis
can easily obtain ration cards and have their names added to
the voter's lists, which are two primary ways of proving
Indian citizenship. If the migrant is found guilty under the
Foreigner's Act, Shillong-based Hasina Kharbhih explained
that there is no effective system for deportation and guards
at the Bangladesh border usually refuse to re-admit the
"foreigner" without proof of citizenship. As a result, Asian
Center for Human Rights president Chakma predicted that most
deported immigrants disappear into another state in the
Northeast rather than returning to Bangladesh. He said that
migrants were only effectively deported when they were caught
along the border and could be immediately returned, which is
reflected in the higher numbers of Bangladeshis deported from
along the border of West Bengal.

Bangladeshi Reaction: Not our Problem, but India's
-------------- --------------


10. (C) Coming at a time of increased Indo-Bangla engagement
(Ref B),the repeal threatens to increase tension along the
border (Ref QhJU&>B6Ax