Himanta in Assembly: DCs can ‘push back’ into Bangladesh anyone they find is a foreigner

Speaking in the assembly, Sarma referred to the October 2024 judgement of the Supreme Court in which a majority of a five-member Constitutional Bench headed by then Chief Justice D Y Chandrachud had upheld the constitutional validity of Section 6A of the Citizenship Act, which makes March 24, 1971 the cut-off date for citizenship in Assam.

“Four judges said 1971 is the cut-off date. But one thing the Supreme Court said repeatedly was that the people brought after 1971 should not be spared in any way. They will have to be deported… In that judgement, the Supreme Court gave the Assam government a sweeping power… The Supreme Court in this judgement affirmed that the 1950 expulsion Act remains valid and operative. That means for expelling foreigners, the government does not have to go to tribunals. The 1950 Act says that if the DC says that prima facie this person is a foreigner, he can be evicted from the state of Assam,” Sarma said.

“By the order of the Supreme Court, every Deputy Commissioner is empowered to evict anybody whom he feels is a foreigner. This is the law of the land… This power has been given to the state of Assam by the Honourable Supreme Court… It says in the Act itself that it will not be applicable to those who came for reasons like religious persecution,” he said.

Sarma was speaking after multiple opposition MLAs, including Congress leader and Leader of the Opposition Debabrata Saikia and AIUDF MLA Ashraful Hussain, spoke at length in the assembly during Zero Hour and Special Mention raising concern over the manner in which these pushbacks have been taking place, alleging that in multiple instances, Indians are being “persecuted” in the name of a drive against foreigners.

“These pushbacks will be intensified. Because the way Pakistani elements have entered our state, Bangladesh fundamentalist elements have entered, to save itself, the state has to become more proactive than before. That’s why the state government has decided that we will bring the Illegal Expulsion Act into action, and whoever the DCs think are foreigners, we will push back without referring to tribunals… Deportation will now be a reality. Even if their names are in the NRC,” he said.

Sarma’s statements led to a furore in the assembly, with opposition MLAs questioning the validity of the actions. Congress MLA Zakir Hussain Sikdar asked on what basis the DCs would identify “foreigners” under this course of action, to which Sarma replied, “The DC has to be satisfied about it.” This drew more opposition, with Sikdar shouting, “That can’t be the system.”

Speaking in the assembly after Sarma, Leader of Opposition Saikia said the Act in question “does not mention anything about pushback.”

“We are a state of India and in the Parliament of India, Union Minister of External Affairs S Jaishankar had said it is the obligation of all countries to take back their nationals if they are found to be living illegally abroad. This is, however, subject to an unambiguous verification of their nationality. This is not a policy practised only in India; it is a generally accepted principle in international relations. Therefore, if Bangladeshis come to India, they have to go back, Bangladesh has to accept them and they have to be proved to be Bangladeshis,” he said.

He said that even when the Act had first been introduced in 1950, it did not remain in force for very long. “The Act they are talking about had been used for only a couple of days in Assam because at that time, it invited trouble for many Bengali Muslims and after an old resident was asked to leave his residence in Upper Assam town within a few days, Nehru was furious and wrote to Gopinath Bordoloi (the then Chief Minister) on April 10 to suspend the enforcement of the Act. It was in force for only a few days, and it was stopped,” he said.

The system at present and the 1950 Act

Under the existing system in the state, the identification and declaration of “foreigners” is done through Foreigners Tribunals (FTs).

FTs are quasi-judicial bodies that determine whether a person presented before them – usually referred by the border police or listed as ‘D-voters’ in electoral rolls – is a “foreigner” or an Indian citizen. Those declared foreigners by these tribunals have the option to appeal against the order by approaching the Gauahti High Court and the Supreme Court.

One of the 13 questions that had been framed for and deliberated by that Constitutional Bench had been: “Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order, 1964 made thereunder.”

In the judgement, after upholding the validity of Section 6A, the court had issued a set of six directions, of which one was: “The provisions of the Immigrants (Expulsion from Assam) Act, 1950 shall also be read into Section 6A and shall be effectively employed for the purpose of identification of illegal immigrants.”

The Immigrants (Expulsion from Assam) Act, 1950 had commenced from March 1, 1950 and stated that if any person had been an ordinary resident of a place outside India and entered Assam, and the Central government is “of opinion… that the the stay of such person or class of persons in Assam is detrimental to the interests of the general public of India or of any section thereof or of any Scheduled Tribe in Assam”, then the central government may “direct” them to “remove himself or themselves from India or Assam within such time and by such route as may be specified in the order.” It states that the Central government can delegate this power to any officer of the Central government or the Assam government.