Extension of BEFR 1873 to Plain Areas of Nagaland and Need for Foreigners Tribunals

There was a large scale influx of persons from the then East Pakistan, now Bangladesh into India before the commencement of December 1971 Indo-Pak war. Unabated influx of illegal migrants of Bangladesh into north-east India led to a perceptible change in the demographic pattern in all the north –eastern states and there is a genuine fear that the indigenous people shall be reduced to a minority in their homeland. The state of Tripura is a clear example where the indigenous people are minorities in their own state. In Nagaland, the plain areas, especially the Dimapur district, the indigenous inhabitants of Nagaland had been reduced to a minority. The willingness of the Bangladesh illegal migrants to work at low wages had deprived the Indian citizens of employment opportunities. It has been shown over the years that unabated influx of illegal migrants had caused much social tensions, internal disturbances which causes grave threat to the life of the people, creates panic situation and also hampers the growth and economic prosperity of Nagaland. In view of inter-marriage with the illegal migrants, giving shelter and protection by the local people for narrow economic reasons had added a new dimension to the problem. In view of the on-going verification of National Register of Citizens in the state of Assam, Nagaland had become the soft target for many of the illegal migrants. It, therefore, becomes the duty of the Central Government as well as the State Government to take all measures for protection of the State of Nagaland from such external aggression and internal disturbance.

Article 355 of the Constitution of India provides, it is the duty of the Union to protect the State against external aggression and internal disturbance. The Hon’ble Supreme Court in SarbanandaSonowalVs UOI (2005)5SCC 665, while defining the words “aggression” and “internal disturbance”, held that “aggression” is not confined only to war but that comprises many other acts which cannot be termed war. It being an all comprehensive word cannot be explained by a straitjacket formula but will depend on the fact situation of every case and its impact. Hence, there could be a unique type of bloodless aggression from a vast and incessant flow of millions of human beings illegally migrating from one country to another, as happening in State of Assam (all the north eastern states) from Bangladesh. Presence of such a large number of illegal migrants also contribute significantly in causing serious internal disturbance, making the life of the citizens wholly insecure and creating a fear psychosis. The foremost duty of the State is to defend the borders, prevent any trespass and make the life of the citizens safe and secure. The Government also has a duty to prevent any internal disturbance and maintain law and order.

The BEFR 1873, commonly referred to as Inner Line Regulation, one of the reasons for its enforcement is the protection of the interests of the Nagas from socio – political and economic exploitation of other. Regulation 2 provides the power to the State Government to prescribe and from time to time to alter by notification in the official Gazette, a line to be called,“ The Inner Line”. It shows that the State Government have the power to alter the inner line.

In the State of Nagaland, presently the inner line had excluded the plain areas. In view of the large scale influx of illegal migrants without any check, the State of Nagaland, the areas outside the purview of the inner line, it has become a safe haven for Bangladesh illegal migrants. The civil societies, student bodies and the general public at large are asking for extension of inner line to the plain areas, with special reference to Dimapur district.

It is important to state that the BEFR 1873, the issuance of Inner Line Pass is for the citizens of India and not for foreigners. The entry of foreigners to India as well as Nagaland is governed by The Foreigners Act, 1946. The Bangladesh illegal migrants are not citizens of India but foreigners who had illegally entered India. As such, issuance of ILP to Bangladesh illegal migrants, it is totally illegal and misplaced. The issuance of ILP by concerned authorities in Nagaland, blindly, without verifying whether he or she is an Indian citizen or Bangladesh illegal migrant, it is a matter of serious concern to check influx of illegal migrants to Nagaland. All the illegal migrants claim themselves to be permanent citizens of Assam and apply for ILP. An Inner Line Pass, residency certificates issued by the GBs, colony/ward authorities, village councils, ultimately it becomes the official documents for those illegal Bangladesh migrants to claim legitimacy of their residence in India. It is necessary for all concerned authorities to check proper antecedents of the applicants before ILP, residency certificates are issued.

The Foreigners Act, 1946 confers wide ranging power to deal with all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner for prohibiting, regulating or restricting their or his entry into India or their presence or continued presence including their arrest, detention and confinement. Section 9 of the Foreigners Act, 1946 it clearly stipulates that the burden of proving that he is not a foreigner or not, is upon such a person who is alleged to be a foreigner and not the authority concerned. The fundamental right of a foreigner is confined to Article 21 of the Constitution of India for life and liberty and does not include the right to reside and stay in India, as mentioned in Article 19(1)(e), which is applicable only to citizens of India. The persons who reside in the territories of countries of which they are not nationals, posses a special status under international law. However, states reserve the right to expel them from their territory and refuse to grant them certain rights which are enjoyed by their own nationals. Thus, the Bangladesh nationals who have illegally crossed the border and have trespassed into Nagaland have no legal right of any kind to remain in our land and they are liable to be deported. The power of the Government to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering its discretion and the executive government has unrestricted right to expel a foreigner. So far as right to be heard is concerned, there cannot be any hard-and–fast rule about the manner in which a person concerned has to be given an opportunity to place his or her case. In a criminal trial where a person is prosecuted and punished for commission of a crime and may thus be deprived of his life or liberty, it is not enough that he is prosecuted in accordance with the procedure prescribed by law but the procedure should be such which is just, fair and reasonable. This principle can have no application in matter of identification of a foreigner and his deportation, since he is not being deprived of his life and liberty. The deportation proceedings are not proceedings for prosecution where a man may be convicted or sentenced.

In exercise of powers conferred by Section 3 of the Foreigners Act, 1946, the Government of India had issued The Foreigners (Tribunals) Order, 1964, G.S.R.1401, dated 23-09-1964. The Central Government may, by order, refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946 (31 of 1946) to a tribunal to be constituted for the purpose, for its opinion. The tribunal after hearing shall submit its opinion to the Officer or authority specified in this behalf in the order of reference. The consequential actions follow thereafter.

In view of the direction of the Hon’ble Supreme Court, the Central Government in exercise of power under The Foreigners (Tribunals) Order, 1964, had constituted Tribunals in all the districts of Assam for identification of foreigners. In view of the serious problems faced due to influx of illegal migrants to Nagaland, the State Government besides altering the inner line and its effective implementation, it should approach the Government of India to establish sufficient Foreigners Tribunals in Nagaland. It is important to note that alteration of the inner line should not be at the cost of the indigenous inhabitants living in the plains and the enforcement agencies should be able to distinguish who is an Indian citizen and who is an illegal Bangladeshi migrant.

Taka Masa Ao
Senior Advocate and Ex.MLA