Repeal of the IMDT Act

Another judgment hailed by the BJP government and sections of the media but with its clear problems. I was amazed while reading some of the media reports on the Act and its problems. For instance, in a published article explaining the IMDT Act to the lay person, the author states "the most contentious provision of the act was the condition that the onus of proving the citizenship credentials of a person in question lies with the complainant and the police, not on the accused. Under the Foreigners Act prevailing in the rest of the country, the onus is understandably on the accused." (Vinayak, G., "What is the Illegal Migrants Act?", available at http://www.rediff.com/news/2005/jul/12act1.htm).

The burden of proof rule is that the onus/ burden of proving what is being alleged is on the one who alleges. Therefore, it is not for the migrant to prove that he did not migrate illegally. The Act is flawed, not because the burden of proof lay on the complainant, which is a basic tenet of law, which cannot be overturned under any circumstances but because of its weak implementation.

Clearly, the IMDT Act had its own problems. Only 5 of the 16 tribunals were functioning and very few migrants had actually been detected and deported during the 22 years that the Act operated. But, it is also true that the Act provided for some kind of due process through the setting up of migrant determination tribunals. The Act provided that if the complaint lodged under the Act is found to be false or vexatiuos, it shall not be accepted. Therefore, the Act could have done with amendments rather than repeal.

The repeal of this Act (applicable in the state of Assam) means that the tribunals will be dissolved and all the pending cases under the Act will be dealt with under the Foreigners Act 1946, a highly discriminatory piece of legislation. The law undermines the rule of burden of proof and requires that the accused prove his innocence. This provision can be subjected to wide misuse in the state of Assam as minority comunities can be subjected to harassment. The Act also does not require any such procedural requirements to be met on the basis of which an order of arrest or detention can be made. Clearly, the Act does not respect the need for following a just, fair and reasonable procedure in restricting or prohibiting the entry or departure of a foreigner from India. The wide discretionary powers granted to executive authorities under the Foreigners Act mirrors a wrongful bias against foreigners or immigrants and undermine the very principles of justice, fairness and equality that the Indian Constitution so proudly claims to uphold.

To read more about the judgment and the wide doors that it opens for minority oppression and other human rights violations, please read Prashant Bhushan's article on the same at http://www.outlookindia.com/full.asp?fodname=20050803&fname=prashant&sid=1.