बुधवार, 6 अप्रैल 2016

शनिवार, 26 मार्च 2016

Hazarika Reports on Cattle Smuggling



(Final Report on India-Bangladesh International Boundry in terms of order dated 13.05.2015 by this Hon’ble Court)
Submitted by:        Upamanyu Hazarika   Senior Advocate
                                   IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No. 562 of 2012
(Under Article 32 of the Constitution of India)
IN THE MATTER OF:
Assam Sanmilita Mahasangha & Ors. Etc.         ….Petitioners
                                          Versus
Union of India & Ors.                                              ….Respondents
Final Report on India-Bangladesh International Boundry  in terms of order dated 13.05.2015 by this Hon’ble Court
MOST RESPECTFULLY SHOWETH:
On 03 June 2015 a detailed report has been filed in terms of the directions given by this Hon’ble Court by order dated 13 May 2015.  It has already been in paragraph 3 of the said report that most of the issues have been covered in detail and if any issue / fact arises thereafter will be included in the final report.  There are no new facts or issues which have arisen in respect of the scope of the Commission, except for an audio visual covering the scope of the Commission, which is being filed.  However, the updating of the National Population Register/ National Register of Citizens (NRC) being undertaken for the first time in Assam has given rise to a large number of issues and large number of individuals and organisation had approached me in this regard. Though, it was pointed out to them that the scope of this Commission is limited to ascertaining the effectiveness of the border infrastructure status, however, some such organisations have given representations, which I am duty bound to handover to this Hon’ble Court.  The present report is divided into the following sections.
Audio Visual
The Commission’s work has been videographed   and there is more than twelve hours of footage in this regard as site inspections, meetings etc.  have been recorded on camera.  Out of such footage, an approximately seventeen minute audio visual has been made.  The accent of the audio visual is to enable this Hon’ble Court to get a firsthand experience and understanding of the major issues governing this Commission.  The audio visual therefore focuses on the major issues in so far as the border is concerned namely:
§   Riverine areas, Brahmaputra  and other rivers.
§  Cattle  smuggling and related aspects
§  Border roads.
§  Border fencing.
§  Border floodlights.
The audio visual has been made by taking assistance of professionals so that the major issues highlighted in the report can be better understood.
It is however submitted, that for any queries or clarifications that may be sought as regards the audio visual, the written report may please be referred to.
A copy of the DVD containing the audio visual is enclosed herewith and  marked as Annexure- I
Representation from Organisations
Representations have been received from Assam Tea Tribes Student’s Association, Assam Public Works etc.  These representations are concerned fundamentally with the modalities and the implementations involved in updating the National Register of Citizens (NRC).  These representations are enclosed herewith and marked collectively as Annexure- J (colly)  a brief synopsis of each representation is given herein below.
i)             Assam Public Works
The representation by Assam Public Works relates to issues arising out of the implementation of the National Register of Citizens (NRC) updating process and the lack/ difficulty in procuring documents by a large number of indigenous inhabitants, whether it be the landless/ homeless tea tribes and those having a poor socio-economic status.  This organisation has suggested a methodology to resolve these issues.
According to this organisation the problem with sourcing of documents/ identity proofs  has arisen as the process of identifying illegal Bangladeshi migrants (albeit indirectly by identifying citizens) and updating of the National Register of Citizens (NRC) have been clubbed together.
Updating of the National Register of Citizens (NRC) in terms of Rule 4 of The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 has to be carried out by house to house enumeration, which rule is applicable to the rest of the country and which will identify the citizens, as issue of foreign national in the rest of the country is not so prevalent.  The procedure prescribed under Rule 4A  a special procedure has been prescribed for Assam where applications have to be submitted by an inhabitant alongwith identity proofs prior to 24 March 1971. It is the lack of such documents on a large part of the population who have a low socio economic status like the tea tribes, landless labourers and also cases of women who did not go to school and got married without any official proof of parentage and the like.
Assam Public Works have suggested a modality to resolve this by classification of  the population into different categories on the basis of surnames, those who have distinct indigenous surnames need not apply and for those with surnames which overlap with those of Bangladeshi origin a separate procedure is prescribed.  The modality has been set out in paragraph 5 of their representation.  According to this organisation they have also consulted with concerned officials regarding the practicability of their proposal and according to them this additional process can be dovetailed with the existing process and documents.  The details are set out in paragraph 5 of their representation.
ii)            Assam Tea Tribes Student’s Association
Representation by the Assam Tea Tribes Student’s Association who have highlighted major issues governing the tea tribal population.  According to this representation, 80% of the tea tribes do not have their names included in the legacy data record of 1951 to 1971 owing to poor socio economic status, illiteracy and the historical reasons.  Owing to such reasons a large number of this community do not have the prescribed documents.
iii)           Asom Jatiyatabadi Yuba-Chatra Parishad – Jorhat District Committee
Another representation has been received from the Asom Jatiyatabadi Yuba-Chatra Parishad which representation says that the large part of Kaziranga National Park new settlers have come, enrolled themselves in the voter  list and not there in 1971 or prior thereto, furthermore even in Jorhat there has been a large settlement of persons has sprung up in an open space in Raja Maibam which has now been named as Latif Colony and also persons of doubtful nationality. 
Observations and Suggestions
Though the scope of the Commission entrusted by this Hon’ble Court has been to survey and submit a report of status of infrastructure etc on the border, however during the course of executing this Commission certain issues have been highlighted, which in my humble submission may be of assistance to this Hon’ble Court:
(1)  It is a fact and so admitted by the State Government as well as by the BSF that the border is porous and open and there is very little or no regulation of those coming in from either across the border or from the  border areas into the heartland.
(2)  It is also a fact that a large number of infiltrators have been continuously coming over the last several decades, comprising fifty lakhs in 2001, according to response to a Parliament question as extracted by this Hon’ble Court judgment of 17 December 2014.
(3)  It is also a fact that such infiltrators have settled entrenched themselves in various parts of the State, including settlement in forest lands, Government lands, grazing reserves and the like.
(4)  It is therefore important to independently undertake exercise  of inquiry / investigation as to the manner in which such illegal migrants entrench themselves, the areas, they settle, the procurement of identity proofs and the various nexuses in this regard.
(5)  Updating of the National Register of Citizens (NRC) will identify the citizens, the issue of verification of identify proofs, whether procured legitimately or otherwise can only be ascertained by unraveling different processes in which such infiltrators procure documents.   This inquiry / investigation will also enable quicker identification of foreigners.
Expenses
This Hon’ble Court by order dated 13 May 2015 had directed the Central Government to furnish a sum of Rs. 5 lakhs towards execution of the Commission.  Most of the logistics towards travel by car, overnight stay and border visit have been undertaken by Central Government and the expenses incurred have been in respect of air travel, cost of producing the audio visual, secretarial expenses and the like, after accounting for which there is a surplus which remains to the extent of Rs.2,81,380/-  and the same has been returned to the Central Government by communication dated 29 June 2015  enclosed hereto and marked as Annexure - K.
It has been a privilege to undertake this Commission, and the final report is submitted accordingly.
29 June 2015    Upamanyu Hazarika     
Senior Advocate




IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No. 562 of 2012
(Under Article 32 of the Constitution of India)

IN THE MATTER OF:
Assam Sanmilita Mahasangha & Ors. Etc.                     Petitioners
Versus
Union of India & Ors.                                                          Respondents
SUPPLEMENTARY REPORT IN TERMS OF ORDER
DATED 14.07.2015 BY THIS HON’BLE COURT
terms of order dated 13.05.2015 by this Hon’ble Court 
MOST RESPECTFULLY SHEWETH:
1.    This Hon’ble Court by Order dated 13th May 2015 appointed me as the Commissioner to visit and survey the Indo–Bangla Border running through length of the State of Assam and to report to this Hon’ble Court, the findings on issues and aspects outlined in the order after co-relating the same with the statements made on affidavit by the Union of India and the State of Assam. The relevant extract of the said order is as follows:
“We have read and considered the affidavits filed on behalf of the Union of India as well as the State of Assam. Without dilating, all that we would like to say and observe at this stage is that the Court is left with the impression that the Union Government and the State Government of Assam have been dragging their feet in the matter of implementation of this Court’s order particularly with regard to border fencing, construction of border roads,night patrolling , flood-lights, etc. We are, therefore, of the view that the Court should appoint a Commission to visit the Indo-Bangla Border running through the length of the State of Assam and report to this Court his finding as to what he finds on the ground after correlating the same with the statement made in the affidavit filed by the Union of India and the state of Assam. Accordingly we appoint Shri Upamanyu Hazarika, a learned Senior Advocate of this Court as the Commissioner and request him to do the needful. We direct the Union Government (Ministry of Home Affairs) to make available a fund of Rs. 5,00,000/- (Rupees Five lakh) to the Court appointed Commissioner to enable him to perform his task. We would expect an interim report of the Commissioner within three weeks from today and a final report on or before 30th June, 2015”.
Interim report
2.    Pursuant to the direction of this Hon’ble Court, to file an interim report within three weeks, the present report is being filed. The entire border stretch has been covered, barring a few small patches, either on by boat or by car until 29.05.2015, detailed meetings have been held with Ministry of Home Affairs officials, BSF Officials, State Government and District Administration Officials, including interaction with field commanders and ground personnel. Most of the meetings and relevant parts of inspection have been videographed, there is around twelve hours of footage.
3.    As far as, the present report is concerned it covers most of the issues in detail and other aspects and issues which may arise, they will form part of the final report. Furthermore, given the extensive videography, an audio visual supplementing/ complementing the report will also be filed along with the final report which will enable this Hon’ble Court to gain a firsthand understanding of the issues and the contents of this report.
4.    The present report covers a large factual canvas and for the sake of convenience this report has been divided into various sections, under the following heads:
·         SCOPE OF THE COMMISSION
Pg. 4
·         EXECUTION OF COMMISSION
Pg. 4
·         DISTRIBUTION OF POWERS AND RESPONSIBILITIES ON THE BORDER
Pg. 8
·         DHUBRI AND SILCHAR SECTORS
Pg. 9
·         HEADS OF INSPECTION

          I.      RIVERINE BORDER          
Pg. 13
        II.      BORDER FENCING
Pg.27
       III.      BORDER ROADS
Pg.33
      IV.      FLOOD LIGHTS
Pg. 34
       V.      INTENSIVE 24 X  7 PATROLLING:
Pg. 34
      VI.      IDENTIFICATION OF VULNERABLE PATCHES:

Pg. 41
     VII.        ILLEGAL INFILTRATORS WILL BE INTERROGATED BY THE STATE POLICE IN THE PRESENCE OF BSF PERSONNEL.





Pg. 42
       VIII.    INCREASE IN NUMBER OF BORDER OUTPOSTS.

Pg. 44
          IX.    SPEED BOATS
Pg. 44
           X.    VILLAGE COORDINATION MEETINGS 

Pg. 45
          XI.    PREVENTION OF INFILTRATION SCHEME

Pg. 45
·         OBSERVATIONS AND SUGGESTIONS
Pg. 47
SCOPE OF THE COMMISSION
The direction of the Hon’ble Court with regard to border fencing, construction of border roads, night patrolling, flood light etc. have been enumerated in the judgment and order dated 17.09.2014, more particularly in paragraphs – 40, 41 and 42 of the said judgment. The contents of the affidavits and directions issued by this Hon’ble Court are extracted under the relevant heads, and in the context of which inspection is carried out.
Pursuant to the above direction, on 17.12.2014 the Union of India and the State of Assam have filed affidavits dated 09.04.2015 and 10/4/2015 respectively where steps have been taken in compliance with the directions.
In the light of the above, I have endeavored to examine / survey the ground situation in respect of the issues outlined in the said judgment/ order and affidavits.
EXECUTION OF COMMISSION
After receipt of the order of the Hon’ble Count, the Commission has been executed in the following manner:
16.05.2015:   Detailed conference and discussion with Mr. Ajai Kanojia, Ministry of Home Affairs and DIG, Border Mr. Dhiman for the inspection and work out  the schedule.It was decided that the entire length of the borders, about 272 kilometers will be traversed to the maximum extent possible and schedule for visit should be drawn up accordingly.
17.05.2015                Departure for Guwahati.
18.05.2015                Departure for Dhubri, from Guwahati and on arrival presentation by DIG, BSF, Dhubri segment Mr. Ajai Singh in the presence of the District administration of officials and thereafter proceeded for inspection of the Golakganj Sector. Started from Ramraitkutti, the beginning of Indo-Bangla border in Assam  upto Binachar on the bank of Gangadhar river.  A copy of the presentation dated 18.05.2015 given by DIG BSF, Dhubri sector is enclosed herewith and marked as Annexure ‘A’ [Pg….to….]
19.05.2015                Started at 6.30 AM, covering the entire segment of the riverine Brahmaputra boundary till the afternoon and thereafter the Mankachar sector which is where the Indo-Bangla border in Assam ends and that of Meghalaya begins. 
22.05.2015                Based on visit to Dhubri, 46 queries under different heads are raised upon the Union of India and 11 queries are raised upon by the State of Assam. The next visit to Dhubri is fixed for 25 & 26 May 2015.   The list of queries raised upon the Union of India and the State of Assam are collectively annexed hereto and marked as Annexure ‘B Colly’ [Pg…….to……].
25.05.2015                Leave for Dhubri from Guwahati and have conference and discussions with DIG BSF, Dhubri Sector Mr. Ajai Singh and other officials with reference to queries raised pursuant to the first visit. A response to queries raised, furnished by DIG BSF, Dhubri Sector along with maps of the Sector and other documents relating to BSF Dhubri, Sector  are collectively annexed hereto and marked as Annexure ‘C Colly’ [Pg…….to……].
26.05.2015                Meeting with the Deputy Commissioner and Superintendent of Police of Dhubri and Superintendent of Police South Salmara and return to Guwahati. The documents, including response to queries, details of Dhubri District, information by customs on cattle smuggling etc. are collectively annexed hereto and marked as Annexure ‘D Colly’ [Pg…….to……].
 27.05.2015               Left for Silchar by early morning by flight. Detailed conference and presentation by DIG, BSF Mr. O.P. Tripathy of the Silchar Sector and proceeded for inspection of the Patharia Hill and plains segment of Karimganj District. Stayed overnight at Karimganj. Copy of the presentation dated 27.05.2015 made by Mr. O.P. Tripathy, DIG, BSF, Silchar Sector along with documents are collectively annexed hereto and marked as Annexure ‘E Colly’ [Pg…….to……].
28.05.2015                In the morning presentation by the Deputy Commissioner and Superintendent of Police of Karimaganj District and thereafter proceeded for inspection of the river segment in Karimganj district and the land segment of Silchar district. Thereafter, in the evening a presentation was made by the Deputy Commissioner and Superintendent of Police Cachar District. In this manner entire 272 KM in the Indo-Bangla border of Assam was covered. Copy of the presentation dated 28.05.2015 made by Deputy Commissioner, Karimaganj District are collectively annexed hereto and marked as Annexure ‘F Colly’ [Pg…….to……].
                                    Copy of the presentation dated 28.05.2015 made by Deputy Commissioner, Silchar District are collectively annexed hereto and marked as Annexure ‘G Colly’ [Pg…….to……].
29.05.2015                Return to Guwahati and meeting with senior officials of Assam Government including Commissioner of Border Deptt., Commissioner Political Deptt. and Additional Director General of Police Border of Assam, Director Border and other officials including those of the Electricity Department. 
                                    A copy of the response to queries upon the State Government furnished in the said meeting is annexed hereto and marked as Annexure ‘H’  Colly [Pg…..to…..]
01.06.2015                Return to Delhi, preparation of report.
02/03/04 June 2015 Preparation of report and continuous interaction with officials, clarifying doubts and seeking additional information.       DISTRIBUTION OF POWERS AND RESPONSIBILITIES ON THE BORDER
                            The Border Security Force Act, 1968 confers jurisdiction on the BSF in terms of Section 4 to guard the Borders. Section 4(1) of the Act reads as follows:
“4(1) There shall be an armed force of the Union called the Border Security Force for ensuring the security of the borders of India.”
                  The control and direction of the Border Security Force in terms of Section 5(1)       
                  is vested in the Central Government, the said provision reads as follows:-
                        “5(1) The general superintendence, direction and control of the Force shall vest in, and be exercised by, the Central Government and subject thereto and to the provisions of this Act and the rules, the command and supervision of the Force shall vest in an officer to be appointed by the Central Government as the Director-General of the Force.
The BSF, according to officials has the primary responsibility of guarding the international boundary. The BSF upon apprehension of any infiltrator or smuggled goods hands them over to the State Police or the Custom Authorities, as the case may be.
In this context, for the purposes of the execution of the Commission the inspection and travel along with the international boundaries was carried out with the help and assistance of BSF Officials and personnel, in the presence of an official from the Ministry of Home Affairs, the administrative ministry for the BSF, as also the Director Border areas of the Assam Government.
DHUBRI AND SILCHAR SECTORS 
There are two distinct segments of the Indo-Bangla Border running through Assam namely Dhubri and the Cachar sectors. While it is only the Dhubri District of Assam which has an international border with Bangladesh in the Dhubri Sector, in the Silchar Sector two districts, Karimganj and Cachar share an international boundary with Bangladesh. The different aspects of the border are examined separately in respect of each of these sectors, the parameters of the three border districts, Dhubri, Karimganj and Cachar are set out below:
Dhubri
Length of international border                         –          144.08 km
Riverine border                                                  –          58.089 km
Land Border                                                        –          85.917 km
Fenced Border, which is only land     –          80.603 km
Map of Dhubri Sector- BSF deployment
 BSF deployment ; - Three battalions 71, 17 & 57 in equal
proportion of the length of the border, are deployed along the border, while 71 & 57 Battalions are primarily in the land segment, 17 battalion is entirely dedicated to guarding the riverine segment.
In the context of a border district, Dhubri has the following unique features.
Population density                          –                      1171 per sq. km (2011 census)
Population density of India            –                      382 per sq. km (2011 census)
Population density of Assam         –                      397 per sq. km (2011 census)
Population density of Bangladesh -                     1174 per sq. kms  (2011)   
Decadal population growth of Dhubri -
1991 – 2001                          -                       22.97%
2001 -2011                                        -           24.40%
Decadal population growth of Assam
1991 – 2001                          -                       18.90%
2001 -2011                                        -           16.93%
Decadal population growth of India
1991 – 2001                          -                       21.15%
2001 -2011                            -                     17.64%            
Silchar Sector
Length of international border –   128 km Riverine border–37.85 km Land border             -90.15    km
Fenced border -128.228 km 
Fenced area sanctioned, not yet started –          6.56 km
The fenced area is longer than the international border as the fencing due to hilly terrain and riverine belt takes a circuitous route. In this sector the riverine border is largely fenced as the river Kushiara constitutes the international boundary and the boundary is deemed to run through the middle of the river linearly. The fencing is on the bank on the Indian side maintaining a distance of 150 meters from the boundary.

BSF deployment:- Three battalions, 131,133, 53 in equal proportion of the length of the boundary are deployed along the border, while 131 & 53 battalions are primarily in the land segment, 133 battalion is entirely dedicated to guarding the riverine segment.
In the context of a border district Karimganj and Cachar have the following unique features.
Karimganj
Population density                                –                      673 per sq. km 2011 census)
Population density of India      –                      382 per sq. km (2011 census)
Population density of Assam   –                      397 per sq. km (2011 census)
Population density of Bangladesh -                           1174 per sq. km  (2011)
Decadal population growth of Karimganj-
1991 – 2001                                -                       21.87% 
2001 -2011                                              -                       20.74%
Decadal population growth of Assam
1991 – 2001                                -                       18.90%
2001 -2011                                              -                       16.93%
Decadal population growth of India
1991 – 2001                                -                       21.15%
2001 -2011                                              -                       17.64%                      
Cachar
Population density                                –                      459 per sq. km (2011 census)
Population density of India      –                      382 per sq. km (2011 census)
Population density of Assam   –                      397 per sq. km (2011 census)
Population density of Bangladesh -                           1174 per sq. km(2011)
Decadal population growth of Cachar-
1991 – 2001                                -                       18.89% 
2001 -2011                                              -                       20.17%
Decadal population growth of Assam
1991 – 2001                                -                       18.90%
2001 -2011                                              -                       16.93%
Decadal population growth of India
1991 – 2001                                -                       21.15%
2001 -2011                                  -                       17.64%                      
Heads of inspection
This Hon’ble Court in its Judgment and Order dated 17.12.2014 from Paragraphs 40 to 43 have dealt with different aspects of the border in terms of porosity due to long riverine stretch and the measures undertaken as set out in government affidavits. It is in this context different aspects as set out in the said judgment and order are dealt with herein below:-
I.        RIVERINE BORDER
In paragraphs 40 & 41, of this Hon’ble Court judgment and order of 17.12.2014 this Hon’ble Court has been pleased to observe “that the Assam portion of the border with Bangladesh is 267 kms. Out of which 44 kms are riverine ………… The White Paper shows that large portions of the border with Assam are yet to be fenced with double coil wire fencing, making the border an easy place to cross………… We are at loss to understand why 67 years after independence the Eastern border is left porous”.

The riverine border inclusive of both the sectors in Assam is 95.94 kms (58.089 kms in Dhubri and 37.86 kms in Silchar sector), out of a total international boundary of 272 kms i.e., more than one third of the international boundary Assam shares with Bangladesh is riverine. The riverine segment in Dhubri and more particularly because of Brahamputra presents a tougher challenge with a 55 km border running across the width of the river and that too with various contortions, coupled with changing course of the river, presence of a large number of river islands, and habitation on these river islands on the international boundary for both Indian and Bangladesh villages. This has given rise to cross border infiltration and smuggling, particularly cattle smuggling from India and smuggling of Fake Indian Currency Notes (FICN) from Bangladesh.
Even as far as other rivers are concerned, Gangadhar in Dhubri and Kushiara, Barak and Surma in Silchar, these are smaller rivers than the Brahamaputra with a span of 150 to 200 meters. Though the international boundary runs through the middle of the river in a linear fashion, however, at times it crisscrosses the river with small patches of land on either side belonging to a India and Bangladesh, this opens up open spaces for infiltration and smuggling. All these aspects are set out in detail herein below:-
Riverine Area 
In Dhubri the Indo-Bangla border along the Brahmaputra river is around 55 KM although the distance between the two banks of the Brahmaputa as the crow flies will be 20-25 KM. The reason for the longer riverine boundary is because the international boundary is not in a straight line but takes a zigzag course with various contortions. Another distinctive feature of the Brahmaputra is that it has a large number of river islands or sandbars, locally known as ‘Chars’. The sandbars are formed by deposit of sediments and have also formed Majuli, the largest river island in the world in the upper reaches in Assam.
Most of the sandbars are transient in nature. The chars begin to move as the flow of water increases. But, when the water flows recede, sediment gets deposited and new sandbars take shape. The sandbars do not exist throughout the year. They are submerged during the monsoon and become visible in winter season.
Thus, destruction and creation of chars go on in an unending way. The Brahmaputra and its tributaries create hundreds and hundreds of ‘fields’ and rivulets every year and destroy them in the same way.
One effect is that the char areas are in a constant state of formation and erosion and some chars have acquired permanent status having been constant for the last few decades.
During the course of inspection, it could be noticed clearly that at least three border outposts of the BSF had to be shifted as changing course of the river had washed away the existing outposts only last year in 2014. Even the main river bank faces a continuous battle with the erosion owing to the river changing course and places could be seen where the border fencing have been washed away. 
International boundary running through the middle of the river
This feature is in both the Dhubri and Silchar Sectors where the international border runs along the middle of the river, in case of smaller rivers like Gangadhar in Dhubri and Kushiara in Karimganj District. However, in both cases it is not a strictly linear boundary running along the middle of the river but at times takes a zigzag route across the banks, resultantly some smaller patches of land on either bank falling in either India or in Bangladesh.
Habitation close to and on the international boundary.
In both segments there are inhabitants and a large number of villages running along side the border. In fact, both in Dhubri and in the Silchar segment, even in the fenced boundary, the inhabitants go across the fencing on a daily basis to cultivate their lands and there are large number of households on the other side of the fence along the international boundary. Apparently, between India and Bangladesh no permanent structure can be erected within 150 meters of the international boundary for which the fencing has to maintain a minimum distance of 150 meters from the boundary. This constant egress and ingress across the boundary is an important factor, as far as border management and security are concerned.
Dhubri
Char area: - As already observed hereinabove, 58 kms of the riverine stretch is unfenced and not capable of being fenced. Two border villages visited by me in the riverine areas Takamari and Abulchar share an open border with the neighboring villages. Those are two of many such villages. In Takamari there is a clearly discernible walking track between the two Indian and Bangladesh villages. In Takamari the BSF border outpost (BOP) had been washed away and shifted to a neighboring char. In Abulchar the BSF Border outpost (BOP) was present and in between the villages had fenced a part of the area using barbed wire fencing and concertina coil (concertina coil is barbed wire which is coiled and laid out on the ground to obstruct passage).Here the villagers have lands on the other side of the fence which requires them to go across. In any case, there are open areas and the water route, through which cross border peregrination can happen.
According to DIG BSF Ajai Singh, in Abulchar area recently there was an incident of a person coming from Bangladesh side and hiding in one of the houses in the village, on the house being surrounded by BSF personnel, the women of the household resisted the entry of the BSF personnel and in the meantime large numbers gathered from the village, threatening the BSF personnel as a result of which they have to retreat to their outpost. Thereafter, the outpost was strengthened with more personnel. Apparently using women as a shield is a common tactic.
Furthermore, the twist and turns of the international border in this stretch are such that these villages are surrounded on three sides by Bangladesh and while travelling by boat to Takamari we nearly berthed on Bangladesh territory by mistake. 
International border running through the middle of the river
The Gangadhar river has a 5-6 km stretch where the international boundary runs along the middle of the river or along side the banks. This area is unfenced and because of the river changing course and floods, the fencing upto the river bank has also been destroyed by 500 -600 mtrs. Apart from this river having a span of not more than 150 -200 mtrs has villages on either side which is a favoured route for smuggling cattle.
Floods and river changing course
During the monsoons all the rivers are in spate, all the char areas are flooded, including rivers overflowing their banks which apart from causing massive soil erosion, requires all the villagers to move to the main land. Furthermore floods and river changing course washed away three BOPs of the BSF in 2014 and according to the Assam police 14 of their 37 watch posts have been washed away and 6 damaged by storms, in the last few years. 
Identity proofs for border villagers
There are no separate identity proofs for border villagers in the char areas, reliance is placed on EPIC (Elector Photo Identity Card) for purposes of checking. Most of the inhabitants from the bordering char areas travel to Dhubri town, which is a district headquarter by steamers/ boat. Though, there are one or two outpost of BSF to verify identity of those travelling from the bordering char areas, but large number of travelers in contrast to the skeletal presence of BSF, coupled with “in absence of authentic identity document apprehension of illegal migrants very difficult” (presentation of BSF on 18 May, 2015) (Annexure A Colly). During the course of inspection by Speed Boat, we could see one large steamer and three boats berthing at the check post simultaneously, all loaded with passengers, as stated by BSF officials it is not possible to ascertain authenticity of nationality as authenticity of identity proofs cannot be ascertained.
Findings and suggestions

1.    Both the District Administration and BSF have very categorically staid that the riverine border is open. The Superintendent of Police Dhubri in his presentation on 26 May 2015 has categorically said “International Riverine Border is still open”. (Annexure C Colly).
The BSF in the representation on 18 May, 2015 have said that
Ø  “Difficult terrain and too many water channels restrict mobility.
Ø  Population/ villages right upto IB (International Border)”. (Annexure A Colly)
2.    The porosity of the border owing to the above factors, riverine area coupled with habitation close to the border, officials of both the State Government and the BSF were asked for solutions. Both sets officers proposed measures for improving infrastructure, increasing deployment, outpost etc.
3.    One suggestion which came from the BSF is to convert the bordering areas in the char / riverine areas into sterile zones, by relocating the villages which will be an effective check to infiltration and smuggling. In fact the villages Takimari and Patamari having an open border with Bangladesh had a combined population in excess of 1700 (179 + 1524, information from district administration) which given the area of the village, coupled with the fact of seasonal migration during the monsoons, makes it highly improbable that livelihood is derived from agriculture alone given the distance from the other neighboring Indian villages. The long distance from the neighbouring Indian villages and close proximity to the neighboring Bangladesh villages shows that the dependence on livelihood is more on Bangladesh than India.
4.    Furthermore, according to the BSF officials on the ground, owing to good relation with Bangladesh there is a non lethal policy required to be practiced by BSF personnel which restrains them from using extreme measures of falls, except in exceptional circumstances. For this purpose BSF personnel are equipped with pump action guns (non lethal at 300 meters, only lethal at short range), stun grenades, chilly grenades, etc. Apparently, smugglers under light are aware of this and provoke the BSF personnel on the ground, knowing fully well that they will come to little or no harm. Apparently, in the Cooch Behar sector in West Bengal Jawans have been injured by attacks from infiltrators/ smugglers.
5.    In the interaction with senior state government officials on 29 May 2015, a query was raised upon them as to whether there is a proposal to relocate villages in border areas, to which the response was in the negative.
6.    The Assam Police though have given a long list of watch post etc., however, they have no means to patrol riverine areas, as they have no boats. The entire riverine area close to the border and including all the chars which are there under Brahmaputra are not being policed in any manner. At village Takamari, the local villagers said that the nearest Assam Police Station was 15 to 20 kms away in Dhubri Town on the main land, whereas the Bangladesh police station was 4 kms away.
Smuggling 
Cattle and Fake Indian Currency Note(FICN)
There is large scale smuggling of cattle from India into Bangladesh through the riverine route. Bangladesh is a very large exporter of meat and cattle smuggling from India presents a lucrative prospect. Fencing on the land route makes it difficult to transport cattle, for which the water route is preferred. Cattle are transported from various parts of India into Dhubri and from there taken to the bordering villages in the char areas and from the char closest to the international boundary taken into the water and through expert handlers floated downstream to Bangladesh. BSF personnel in the BOPs by use of force multipliers like Hand Held Thermal Imagers (HHTI) and Night Vision Devices are able to detect moving cattle in the water which are done with the help of speed boats herded into cattle pounds located in the BOP itself.
On our visit to Mahamaya char BOP we could see cattle in the pound seized the night before and which were exotic breeds from Bhutan, Central and Northern India. The cattle transporters being expert swimmers under water are usually able to escape detection. The details of the cattle seized and sent to the Inland Customs office in Dhubri which on the basis of such details of the cattle are put up for auction the purchasers of such auction on the basis of certification from the Custom authorities collect the castles from the pound in the border outpost. On the basis of discussion, with BSF, State government, customs officials the following salient features can be noted:
I)             Cattle smuggling has been on the rise in the last few years, on a daily basis cattle worth lacs of rupees are seized. According to the information, provided by the BSF the total number of cattle seized over the last few years are as follows: -
SHQ
2012
2013
2014
2015
Total
Dhubri
1179
3353
2805
5137
12474

(ANNEXURE C COLLY)
According to the custom authorities and information provided by the Superintendent Customs, Dhubri the total value realized by auctioning of cattle in 2014 is Rs. 25,24,000/- and the total value realized  from auctioning cattle since January 2015 are as follows:-

Month

No.of cattle transported to Dhubri district from other states

No.of cattle seized

No. of seized cattle auctioned

Detailes of auction

Revenue earned from such auction


     (In Rs.)

Jan/15

-

170

170

--do--

11,11,150/-

Feb/15

-

257

257

--do--

18,43,050/-

Mar/15

-

862

862

--do--

65,20,258/-


(ANNEXURE D COLLY)
It was admitted by the Customs representative who attended the meeting that the value of the cattle auctioned is far less than the actual value as reserves prices are fixed by the superiors at a lower rate and need to be revised. In fact, this is borne out by the value ascribed to the cattle by the BSF which over 2013, 2014 and upto 23.03.2015 have ascribed a value of Rs. 6,29,94,075/- to the cattle seized. In fact, the cattle seized this year upto 31.03.2015, value realized from auction is Rs. 94,74,458/- by the customs authorities, on the other hand the value ascribed by the BSF to the cattle seized this year upto 23.03.2015 is Rs. 437.59 lacs  
Furthermore the cattle in any case are located in the border area of the Chars and it will require any prospective buyer to travel 20 kms from the river bank to first inspect the cattle, bid for it in the auction and thereafter again travel 20 kms to the border over water to collect the cattle and it is only persons interested and in the know who will bid for the cattle. 
II)            Cattle smuggling is linked to smuggling of Fake Indian Currency Notes. (FICN). Apparently, cattle smugglers are given incentive of being paid value of cattle smuggled in genuine Indian currency and two to three times such amount in FICN for circulation in India. Apart from a metallic line changing colour in the light on a genuine currency note as opposed to the metallic line not changing colour on a fake currency note, there is nothing to distinguish the two. FICN has been seized by the BSF, which has been through decoy operations by setting up traps through transactions and the value of  FICN seized by the BSF are as follows:


Dhubri
2012
2013
2014
2015
Upto 30 Apr
Total
3,62,200
5,50,500
2,47,500
-
11,60,200

            The total amount of FICN smuggled cannot be estimated.
III)           Cattle smuggling takes place through an organized network as most of the cattle seized have distinctive marks, the same mark on different cattle obviously means that cattle belongs to a particular smuggler and this could be seen on the cattle in the pound we visited.
IV)          The BSF personnel have noticed that they have caught the same cattle being attempted to be smuggled several times over. Apparently this is because the cattle are not physically taken to the site of auction, but auctioned on the basis of seizure memo received from BSF of the cattle in the pound and the auction purchasers collects the cattle from the pound in the border outpost, near where it has been seized and it is easier to smuggle such cattle across the international boundary.
V)           A query was raised upon the district administration as to the steps being taken by them to stop import of cattle from the rest of India. According to the state government and the district administration they have no power to stop import from rest of the country. According to them this will require a legislation. However they make use of three statutory / subordinate legislations namely
a)    Transportation of Animal Rules, 1978
b)    Prevention of Cruelty to Animal Act, 1960
c)    Assam M.V. Rules, 2003 (Rule – 78 (3)).
to regulate transport of cattle and each of these legislation require and prescribe conditions for transport of cattle in terms of prescribing dimensions of transport vehicle, hygienic / health conditions, transportation etc. In other words enforcing strict conditions of the above statutes indirectly regulates / prohibits the transport of cattle. However, given the increasing number of cattle being seized obviously these measures have not had any effect i.e. if they are being enforced.
vi)        According to the BSF the following measures if taken will help contain cattle smuggling. 
Ø  Cattle haats should be beyond 20 kms from international border to discourage Cattle smuggling
Ø  Customs authorities should ensure that seized cattle should not be auctioned to smuggler once again. 
(ANNEXURE A COLLY)
Silchar
In Silchar the riverine area is not as porous as the Dhubri sector. This is for the reason that there are no char areas and the rivers are quite narrow and because they do not change course unlike the Dhubri sector, the banks are stable and there is fencing along side the banks from most of the parts. There is one patch of river where the Kushiara bifurcates into the Surma and Barak, in which segment there is a 1750 meter stretch of the international boundary which takes a zig zag course going into one river bank and then crossing on to the other, with small patches of land on either bank belonging to India and Bangladesh which presents a challenge. This is at BOP Tukurgram, which has four gaps in the segment and because of the boundary running back and forth across the Kushiara, Barak and Surma rivers at their junction presents a porous site which I was informed by the BSF is being sought to be remedied with proposal for fencing and other measures.
(Refer Annexure E Colly)
II.        BORDER FENCING
In Para 42 (vi), of the judgement and order dated 17.12.2014, extracted from the Affidavit of 05.12.2014, the relevant extract reads as follows:
“Border Fencing:
…………… Due to boundary issues which are yet to be resolved between India and Bangladesh in 18 KM, construction of fencing could not be completed……… Fencing work cannot be started in 188 km due to delay in land acquisition by the concerned State Governments in Tripura (11 km.), West Bengal (86 km) and Assam (3.5 km)………. The matter has been taken up with the State Governments of Meghalaya, Tripura, West Bengal and Assam for early acquisition of land for construction of fencing at various levels. Matter is being followed up with them regularly……”
In the affidavit of 10.04.2015 filed by the Union of India, Para 6 sets out  the details regarding fencing work in Assam. There are a few factual errors in the said paragraph, firstly, the length of the International Border in Assam is not 263 kms as stated, but 272 kms. Secondly, there seems to be a variation in the figure for sanctioned length of fencing in the Affidavit and as provided by the BSF, Dhubri and Silchar Sectors. In the Affidavit it has been stated that border fencing has been sanctioned for 229.03 kms, whereas adding up the figures provided by the Dhubri and Silchar BSF Sector, the figure for sanctioned fencing comes to 225.83 kms. This variation needs to be resolved. Thirdly, it has also been said that apart from 3.5 kms stretch in Karimganj Town, the balance has been completed. This does not appear to have taken into account the additional 3 kms stretch of the un-demarcated portion in the Silchar Sector (Lathitila- Dumabari), where 94 acres of land is part of the Land Border Agreement with Bangladesh. Rest of the contents of the Paragraph relating to the construction of fencing in Karimganj Town appears to be in consonance with the ground situation.
General features
There is double coil wire fencing which has fences running parallel width of 3.4 meters between the two fences and height of 2.45 meters. During the three phases of fencing, dimensions of the fence have been changed for every phase, none the less all of them appearing to be effective deterrents. Owing to habitation very close to the border, the requirement under the agreement with Bangladesh to keep 150 meters distance from the international boundary for any permanent construction has led to large number of villagers, either living outside of the fencing towards the international boundary or villagers inside the fencing having cultivable land outside the fencing. This has entailed installation of a large number of gates in the fencing to enable egress and ingress for the villagers.
Dhubri
In Dhubri, it is the land border which has been fenced and not the riverine border, the latter incapable of being fenced.  Out of 144 kms of total boundary, sanction has been granted for 89.3 kms, of which 81.3 kms has been fenced. The balance area has not been fenced as either not been feasible due to riverine area, including 2.4 kms washed away, gaps due to possibilities of soil erosion, changing course of river. Break up battalionwise being given in the presentation enclosed and filed.                                     (ANNEXURE E COLLY)
Gates in the fencing: There are 110 gates in the fencing in the entire Dhubri sector, out of which 91 are functioning. Functionality is in the context of the gates used for passage by the villagers and which require to be manned by BSF personnel.
Bridges and culverts : In the Dhubri sector there 123 culverts and bridges which are spread over the entire fenced sector. These bridges and culverts are due to large number of rivers / rivulets / streams / irrigation channels running through the international border boundary, mostly in the fenced area. These are gaps which are sought to be  plugged by patrolling , coupled with laying of concertina coil across the water body alongwith barbed wire . While this may prevent cattle smuggling the possibility of FICN smuggling / infiltration can not be ruled out. Construction of any permanent structure will impede the flow of water, and in any event will be swept away by water.          (ANNEXURE C COLLY)
Identity proofs To facilitate the villagers those not having any ID cards, usually election identity card is accepted, local BSF commanders have issued identity cards to villagers going ahead of fencing on the recommendation of the gram panchyat / Pradhan . During course of inspection we came across villagers having identity cards at the check gate. In the Dhubri sector around 500 – 600 villagers are estimated to cultivate their land outside of the fencing.                                                      (ANNEXURE C COLLY)
Silchar
In Silchar the international border is 128 kms of which sanction for fencing is for 136.53 kms. The variation is due to ground reality where the fencing has to traverse greater length  due to natural barriers like hills and rivers. Out of the sanctioned fencing 128.22 kms has been completed and 6.56 km has to be started. Out of 4 sections comprising the area where the work is yet to begin, two major portions are in Karimganj town (3.5 kms) where the international boundary runs through the middle of the river and if the 150 mtrs distance has to be maintained, large parts of Karimganj town will have to be demolished. After deliberations it has been decided to install the fencing 5 meters from the river bank to minimize this location and the area for fencing is to be handed over by 30 May 2015 for fencing to the National Buildings Construction Corporation (NBCC).
The other major part where fencing is yet to start is in the un-demarcated border with Bangladesh (Lathitila – Dumabari) where 94 acres of land has to be handed over to Bangladesh as per Land Border Agreement and presently these areas are unfenced for 3 km.                                                           (ANNEXURE E COLLY)
Gates in the fencing: There are 124 gates in the fencing in the entire Silchar sector, out of which 44 are functioning. Functionality is in the context of the gates used for passage by the villagers and which require to be manned by BSF personnel.   (ANNEXURE E COLLY)
Bridges and culverts : In the Silchar sector there 66 culverts and bridges which are spread over the entire sector. This bridges and culverts are due to large number of rivers / rivulets / streams / irrigation channels running through the international border boundary, mostly in the fenced area. These are gaps which are sought to be  plugged by patrolling , coupled with laying of concertina coil across the water body alongwith barbed wire . While this may prevent cattle smuggling the possibility of FICN smuggling / infiltration can not be ruled out. Construction of any permanent structure will impede the flow of water, and in any event will be swept away by water.                                          (ANNEXURE E COLLY)
Identity proofs : To facilitate the villagers those not having any ID cards, usually election identity card is accepted, local BSF commanders have issued identity cards to villagers going ahead of fencing on the recommendation of the gram panchyat / Pradhan . During course of inspection we came across villagers having identity cards at the check gate. In the Silchar sector around 1165 villagers are estimated to cultivate their land outside of the fencing and there are 14 villages comprising 212 houses which are located outside the fencing.                                                                                         (ANNEXURE E COLLY)
Observations
1.     Fencing in the areas installed , which is largely in consonance with the area stated in the presentation has been installed and appears to be an effective deterrent to any cross border movement, this is for both the Dhubri and the Silchar sectors.
2.    Gaps in the fencing owing to bridges and culverts are an area of concern, though they have been sought to be plugged using barbed wire, concertina coil, patrolling, lighting etc. Further measures for effective plugging need to be examined. In parts of Silchar sector sluice gates used for irrigation appear to be an effective measure, according to Mr. Raja Paul, Commander of 57 battalion, this is also being examined for the Dhubri sector.

3.    The large number of check gates and the constant inflow and outflow of villagers to and fro presents difficulties in both Dhubri and Silchar firstly, potential for smuggling and infiltration exist when such a large number of persons go back and forth. As related by a senior BSF officer, it is possible for a villager to go across with two large cattle when one set of BSF personnel are on duty and return with two smaller cattle when another set of personnel are on duty, in this manner while the records will show two cattle going out and coming back, actual smuggling has also happened.
Secondly, this also puts pressure on the BSF as more personnel have to be deployed to man the gates , presence  of a lady constable is also essential to frisk women. However very few lady constables are available And therefore women go across unfenced.
4.    During the course of interaction with state government officials, a query was raised whether there is any proposal to acquire the land belonging to such villagers across the fencing and / relocate such villagers living outside. The response is in the negative.
5.    Even though the fencing is secure and effective, but the large number of people effecting passage back and forth on a daily basis undermines the effectiveness of the fencing.
6.    Government should explore the possibility of acquiring the land of such villagers, relocating those who live outside so as to permanently close the gates. 
III.        BORDER ROADS
Dhubri
Border road runs along the land segment, along side the fencing. Ideally border roads should be along with the fencing at all times, but in certain places in Dhubri the road diverges by few hundreds meters from the fencing with habitation in between. The roads are metalled  and in fairly good condition. Wherever there is fencing there are roads.
Silchar
In the Silchar sector the border roads run along side the fencing. However the quality of the roads in the plain segment are not very good and even the roads in the hill segment (Patharia) are not in a good condition. I was informed by DIG, BSF that request has been sent to the CPWD for repair of the roads.
Observations
1.    In a few stretches in Dhubri the road diverges from the fencing by a few hundred meters, with habitation in between. This is apparently for the reason that the Panchyat road is being used as the border road and alignment is therefore not perfect, there is no proposal for alignment in the few places of divergence.
2.    The border roads in Silchar sector need to be repaired. In Silchar however the general state of roads is pathetic, the national highway is filled with pot holes and small ditches and the border roads are in a better condition than the national highway.
IV.        FLOOD LIGHTS
 In the judgment dated 17 December, 2014 this Hon’ble Court has extracted from the affidavit, the relevant extract of the judgment at paragraph 42 read as follows:
“Installation of Flood lights along Indo – Bangladesh border : Further, a project worth Rs. 1327 crore for installation of flood lights along the border to keep close vigil at night has been started in 2840 km along Indo-Bangladesh border areas. Work has been completed in 1874 Kms”.
The above affidavit does not make any distinction between the portion in Assam and otherwise. Even in the affidavit dated 10.04.2005 filed by the Union of India there is no separate reference to the Assam sector excepting for stating that 107 kms of flood lights have been installed (Para 4 of the affidavit).
Dhubri and Silchar
In both the sectors, flood lights, border roads and fencing are coextensive and wherever fencing has been installed flood lights have also been installed. In Silchar 127.70 kms of flood lights have been installed out of sanctioned road of 132.7 kms. In the presentation made by the BSF Silchar Sector of the three sectors, in one flood lights are functional (133 Bn), though in one sector (53 Bn) have not been handed over by CPWD, trial run is continuing, during the entire stretch traversed at night the flood lights had been switched on and appeared to be quite effective. It is in another sector (131 Bn) that the flood lights have not been functional since 01.12.2004 and CPWD has not yet handed over this sector after repairs. 
In Dhubri out of sanctioned flood lights 80.9 kms of entire stretch have been installed. But a 9.99 kms stretch, though complete has not yet been taken out from CPWD. The balance in both these areas have not been installed owing to fencing being incomplete as both fencing and flood light are installed in tandem.
Finding
1.    One small but significant fact which both the governments have omitted to mention is that the flood lights have not been operationalised and functioning as electricity connection has not been provided by the Assam Government and in certain sectors handing over by CPWD is not complete. According to the BSF, in areas where flood lights have been handed over to the BSF by the CPWD, they are operated for two hours by generator, however, there has been a shortage of fuel supply for generators which has also impeded the daily two hour lighting.
2.    Pursuant to the first inspection in Dhubri a query was raised upon both the Central and the State Government seeking details as to when the application for providing electricity connection was made and when the state government provides the electricity connection. (The Central Govt. had deposited the following sums towards electricity connections. 
Dhubri - 1.     For 57 battalion an amount of Rs. 3.13 crores   was deposited with APDCL, the state electricity distribution company on 20 January 2011
         2.            For 71 battalion an amount of Rs. 10.89 crores deposited with APDCL, the state electricity distribution company on 28 December 2012.
Silchar 1.       For Silchar segment a sum of Rs. 32 crores was deposited with APDCL, the State Electricity Distribution Company in January and March 2014.
3.         A query had been raised upon the BSF as to whether installation of flood lights would reduce the load on patrolling, both of whom replied in the negative. However, it was pointed out by DIG Ajai Singh of the BSF, Dhubri Sector that flood lights are an effective deterrent to infiltration and smuggling. Apparently, Fake Indian Currency Notes (FICN) are smuggled using innovative methods like tying the notes to the top of a bamboo pole, which taking advantage of the flexibility of bamboo would be flung over the fence. Flood lighting would reduce these kinds of activities.
Response of the State Government
Two queries were raised upon the State Government as to when the application for electricity connection to the flood lights have been made and when the State Government proposed to provide electricity connection. The response of the State Government is as follows:
Dhubri:
i.              At one place, Jordanga the construction of the sub station is complete but could not be charged due to low voltage problem, for which an additional 33 KV line is under construction and is likely to be completed by October 2015.
ii.            At another place, Rustam, though sub station is complete but construction of 33 and 11 KV lines is affected in certain locations due to right of way issues. According to the response “civil administration as well as BSF is pursuing the matter”.
(ANNEXURE H COLLY)
No timeline has been provided by the State Government as to when it will provide electricity and make the connection live.
Silchar:
In Silchar Sector, the works are carried out under two circles Badarpur and Cachar, the progress of works is as follows:
i.              Badarpur electrical circle, work has been awarded on 19.01.2015, with a completion period of one year.
ii.            Cachar electrical circle, tender awarded has been set aside by the Gauhati High Court on 23.03.2015. Re-tendering has taken place, Techno Commercial Bids opened on 16.05.2015, contract is expected to be awarded shortly and completion time will be 18 months from date of LOA (Letter of Award).
(ANNEXURE H COLLY)
During the meeting with electricity department officials on 28.05.2015 at Silchar, it was said that works will take two years to complete as invariably there is an extension as works are delayed. Again, no timeline has been provided by the State Government as to when the connection will be made live.
Uninterrupted power supply
An important issue is that of uninterrupted power supply, which is an important factor in Assam as power cuts are the norm, rather than the exception. This query was raised upon the electricity officials in Silchar, as well as in Gauhati where the heads of the concerned departments were present, but no response was forthcoming as to what is being done to ensure uninterrupted power supply. There cannot be an issue of greater national priority than flood lights in the border area, but this aspect of uninterrupted power supply does not appear to have been considered. In fact, one of the Commanders of a battalion in the Silchar sector, which had just been transferred from the Rann of Kutch in Gujarat said that it was news over there if electricity was disconnected for more than 2 minutes and electricity connection at times was disconnected to test the generators.
V.        INTENSIVE 24 X  7 PATROLLING:
VI.        It has been stated by the Union of India in its affidavit of 05.12.2014, extracted at Paragraph 42 of the Judgment and order of 17.12.2014 that there will be “intensive 24 x 7 patrolling by the Border Security Force (BSF) along the Indo-Bangladesh border”. There has been no further elaboration on this aspect in the affidavit of 09.04.2015 by the Union of India.
Findings
Effective strength: Each sector has three battalions of BSF personnel and though a battalion is at least a thousand man strong, however, after accounting for those on leave, undergoing training, assigned to domestic law and order duty etc. the effective ground strength per battalion in the Dhubri sector is 540 and in Silchar sector is 450 approximately (response to queries). (Annexure C & E Colly) Each jawan does two shifts of 6 hours each every day, so effectively half the effective strength of the battalion is available on a 24 x 7 basis.
This would mean that in Dhubri 270 persons per battalion are manning the border on a 24 x 7 basis and in Silchar 225 persons per battalion manning the border on a 24 x 7 basis.
If the above figure are extrapolated to each sector, then Dhubri border running into 144 kms is manned by 810 personnel (270 x 3 being the number of battalions) and 128 kms segment in the Silchar sector is manned by 675 personnel (225 x 3 being the number of battalions).
Of course, there are force multipliers like Night Vision Devices (NVDs), Hand Held Thermal Imagers (HHTI), Battle Field Surveillance Radars (BFSR) which are effective aids. In fact, HHTIs which are effective on moonlit nights, are able to detect movements 3 to 6 kms away and is the mode through which cattle smuggling is detected at night.
Pressure on ground personnel: However, the fact that ground personnel work seven days a week, with no weekly off (response to query), shows that there is a shortage of personnel. In the Affidavit of 05.12.2014, extracted at Para 42, it has been said that one additional battalion for the Assam sector is being raised.   
Though duty along the border is difficult and tough, however, certain segments like the riverine Char areas segment in Dhubri and the Patharia hills segment in Silchar appears to be extremely difficult. Apparently, during the monsoons all the border outposts in the Char / riverine areas are flooded and the ground personnel have to live on steamers.
VII.        IDENTIFICATION OF VULNERABLE PATCHES:
In the affidavit of 05.12.2014, extracted in Para 42 (ii) of the judgment of 17.12.2014 it has been stated that “(ii) Identification of vulnerable patches/ routes by 15th January 2015 from where Bangladeshi nationals are managing to enter into the country illegally. After identification of these vulberable patches/ routes, security and vigilance will be strengthened at these points along the identified routes used for illegal infiltration.
Findings
In this regard, as already set out herein above, under the heads the gaps and vulnerable patches are known, fundamental the open areas which are either incapable of being fenced or not fenced for multiple reasons, the latter forming of small part. In this regard, queries were raised upon the Union of India and separate responses received for both the Dhubri and the Silchar Sector. Both the sectors identified the vulnerable patches (part of questionnaire and response, enclosed as Annexure C & E Colly). For Dhubri the entire riverine segment has been identified as vulnerable, “is open being riverine”, apart from few other outposts. For both the sectors the number of infiltrators apprehended have shown a decline from 49 in 2012, 45 in 2012, 20 in 2014 to 07 in 2015 upto 30 April 2015. Likewise of or Silchar the number of infiltrators apprehended has shown a decline from 20 in 2012 to 13 in 2013, increasing 19 in 2014 to 2 in 2015.
VIII.        ILLEGAL INFILTRATORS WILL BE INTERROGATED BY THE STATE POLICE IN THE PRESENCE OF BSF PERSONNEL.
In Para 42 (iv), extract of affidavit dated 06.12.2014 it has been stated that “Illegal infiltrators will be interrogated by the State Police in the presence of BSF personnel who have managed to enter into the territory of the country for identification of routes they had taken for entering into the country. Security will be further strengthened on such routes/ areas. BSF Personnel, if any, found to be involved in helping illegal infiltrators for crossing international border will be punished as per law. BSF will keep close vigil on the international border through its intelligence branch with immediate effect.”
Findings
i.              In this regard, all infiltrators intercepted are handed over to the State Police, a specific query was raised as to whether any pattern of infiltration regarding routes etc. was forthcoming on this aspect. According to the response from the BSF, interception is largely in respect of crimes and “the trans-border crimes in this area generally take place randomly wherein trans-border criminals endeavour to exploit porous. However, there is no definite pattern to these crimes”. (Annexure C Colly)
ii.            However, one important information received from the Superintendent of Police, Cachar District is that infiltrators intercepted in Silchar on questioning have revealed that they have crossed over at Belonia on the Tripura border. He also cited an instance of a person kidnapped from Karimganj, where he was posted earlier, the kidnapped person’s body was recovered from Bangladesh. Obviously, if a person could be kidnapped from India into Bangladesh there is a definite route(s).
iii.           It is a bit surprising that after having admitted that the border is porous in large parts in Dhubri sector and in smaller parts in the Silchar sector, both the State Government and the BSF have no definite determined intelligence/ information regarding routes and pattern of infiltration.
iv.           It was informally informed by a Senior Police officer that the pattern of infiltration is highly organized, there being organized networks on either sides and it is possible for a person in Bangladesh to get enrolled in the voters list in India and get a photo identity card, which on arrival gives such infiltrator a legitimate status.
    IX.        INCREASE IN NUMBER OF BORDER OUTPOSTS
In Para 42(ix) of the judgment and order dated 17.12.2014, extract of counter affidavit of 05.12.2014 it has been stated that the number of border outposts is proposed to be increased and requests have been made to the State Government of acquisition of land for construction of the border outposts.
Findings
This aspect of the matter has not yet been raised with either of the governments as yet, will be done soon in the near future and will form part of the final report.
     X.        SPEED BOATS
In Para 42(x) of the judgment and order dated 17.12.2014, extract of counter affidavit of 05.12.2014 it has been stated that the “BSF has deployed 28 numbers of speed boats (single engine), 40 numbers of rigid inflatable speed boats, 48 numbers of aluminium country boats, 2 double engine speed boats, 58 engine fitted country boats along Indo-Bangladesh border (Assam sector) for guarding of riverine areas. In order to make effective guarding of riverine international border additional 10 double engine speed boats and five 20 meters medium vessels will be procured within six to 12 months. Effective guarding of riverine areas in other sectors are also being done by the BSF.”
Findings
This is an operational issue and it is for the BSF to determine capability and requirement and no issue in this regard was raised by the sector Commanders of the BSF.
XI.        VILLAGE COORDINATION MEETINGS 
In Para 42(xi) of the judgment and order dated 17.12.2014, extract of counter affidavit of 05.12.2014 it has been stated that the “It may be mentioned that the timelines indicated above, for the border infrastructure works, are tentative in nature and targets are subject to the condition that the “in-progress” works are not stalled due to the unforeseen situations like floods, landslides, public protests, litigations, etc. Further, it is stated that the sanctioned and completed status of the border infrastructure mentioned in Paras (vi) to (ix) are dynamic in nature due to the difficult terrain along the border areas coupled with floods, land-slide, breach in fence, etc.”
Findings
In the Dhubri Sector a meeting was organized with a team of Village Defence Party (VDP) leaders who identified themselves along with identity cards as being VDP members / leaders. They said that they were given Rs. 1500/- per month for every VDP team towards expenses. No opinion can be ventured on the basis of one meeting on the effectiveness of this initiative.
XII.        PREVENTION OF INFILTRATION SCHEME
In Para 42(xiii) of the judgment and order dated 17.12.2014, extract of counter affidavit of 05.12.2014 it has been stated that the “3153 Security personnel provided to the State of Assam under Prevention of Infiltration of Foreigners (PIF) Scheme to act as second line of defence and assist the BSF to check the illegal infiltration from Bangladesh. The State of Assam will be advised to use and deploy the PIF personnel to act effectively with immediate effect.”
      A query was raised upon the State Government as to what is the second line of
      defence under the PIF scheme. The response received is as follows:
     “Under the Addl. PIF Scheme, the nature of 2nd line of defence is to check the fresh infiltrators/ re-infiltrators from Bangladesh who might sneak past BSF at International Border.
            The Police Officers and men under PIF Scheme have been deployed at PSs/ Ops/ WPs and their main tasks are to detect suspected Bangladeshi national through village surveys as well as to stop infiltration of foreigners.”
Findings
It appears from the response received that the personnel deployed under the Scheme are undertaking patrolling duties and as stated village service, but the result of the scheme in terms of effectiveness is not clear.
Identity proofs
A query was raised upon both the BSF and the State Government as to whether separate identity proofs are being provided for those in border villages, furthermore, have any survey of border villages been carried out. In the meetings with the District Administration and Police Officials in Dhubri, Karimganj and Cachar it was informed that no separate surveys was carried out of border villages and that no separate identity cards were issued to border villagers, apart from the Voters Identity Card issued by the election commission. It is only the BSF which issues identity cards to those villagers who have land beyond the fencing on the side of the international boundary.

However, in the meeting with the senior State Government Officials in Gowahati, response to queries was furnished, whereunder it was said that for watch posts in border areas 16 registers were maintained, including registers of persons prosecuted under the Foreigners Act, re-infiltrators register etc.
Findings
While on paper the measures appear impressive, however, the effectiveness of each measure in controlling infiltration and smuggling cannot be assessed as there is no benchmark for the same. 
Having come to the end of the report, the observation and suggestions made herein above under various heads, including additional issues that arise are summarized herein below:
OBSERVATIONS AND SUGGESTIONS
I.              Riverine area
a.    The porosity of the riverine area is an acknowledged fact and reality, complicated by existence of habitation close to and on the international boundary. It is important to address this fact and seal the border by converting a particular defined stretch from the international boundary into a sterile area i.e. where no habitation is permitted by relocating the existing villages. According to personnel on the ground, this will be an effective step in this direction, which appears to be logical. 
Furthermore, even in the unfenced border villages, if  separate identity cards are provided, like the BSF does for the fenced area, this will easily form a separate identity proof for those in these areas, regulating their entry into the main land from the Char areas.
b.    Prohibit and regulate transport of cattle and other items favoured by smugglers like phensedyl, close to border areas. Shift cattle haats, 20 kms away from the international border and also the cattle impounded by the BSF should be transported far away from the International boundary for auction, rather than being kept and released from the pound located at the international boundary. Also steps should be taken by the custom authorities to ensure the bona fides of a purchaser of cattle in the auction.
c.    In areas where the rivers like Gangadhar, Kushiara, Barak and Surma where the International boundary is deemed to run through the middle of the river and thereafter takes a zigzag route, crisscrossing both the banks, these vulnerable patches required to be addressed as there is also habitation close to the international boundary.
II.            Fenced areas:
a.    The large number of gates on the fencing in both the sectors are potentially, if not in actual fact avenues for smuggling and infiltration, apart from putting pressure on the ground personnel of BSF to man the gates, who in any case are under a lot of pressure. Between the two sectors there are not more than 1800 villagers and probably between 300 to 400 households who either live on the other side of the fencing or go through the fencing on a daily basis to access their land. Government should explore the possibility of acquiring the land of these villages and closing the gates permanently.
b.    The large number of bridges and culverts in the fenced area present, in places appear to be vulnerable and measures like installing sluice gates or other such devices can be explored. 
III.            Flood lights and roads   
a.    The concerned departments of the Central Government and the State Government ought to give priority to border roads and flood lights being a measure of national security, which they treat like any other normal project with extended and open deadlines.
b.    As far as flood lights are concerned, there are two aspects firstly, CPWD ought to ensure that works are completed and handed over without delays in the remaining segments and the State Government should also give priority to providing electricity connection, within stipulated time line.  Secondly, it is essential to ensure that there should be uninterrupted power supply to the flood lights and this issue requires to be addressed, though it is still not under consideration.
IV.          Strength of ground personnel.
a.     From the roster of duties of ground personnel of the BSF, two shifts of 6 hours each on a daily basis, with no weekly off in extremely hard conditions indicates that there is a shortage of ground personnel. Though it has been said in the affidavit of 05.12.2014, extracted also in the judgment and order of 17.12.2014 that an additional battalion will be raised, however, the sufficiency of the additional man power also needs to be assessed.
b.    As far as State Police is concerned it has been admitted that personnel deputed for border duties do so in addition to their other duties. Furthermore, in spite of a vast riverine stretch, there is no river police in Dhubri and no means of policing the riverine border areas. The Superintendent of Police Dhubri in his presentation has made out the case for a “Full fledged river police battalion along with river police station”. 
V.           Non Lethal Policy
          In the Dhubri Sector concerns were voiced by field commanders regarding the non lethal policy, as part of friendly relations with Bangladesh,  required to be followed by BSF personnel guarding the border, which restricts them in the use of force while dealing with infiltrators / smugglers and they are accordingly equipped with non lethal weapons like pump action guns, stun grenades, chilli grenades etc. Smugglers and infiltrators, apparently being in the know of this policy are aggressive with the jawans, putting the latter to risk. This aspect needs to be examined by the government. A specific query was raised regarding this issue and its implication upon the Ministry of Home Affairs, but no response has been received.
VI.          Homogeneity in culture and language of population on either side of the border.
a.    The District Administration of Dhubri in their presentation have said that:
The population in the Indo-Bangladesh Border has similar language culture way of living and religion resulting in great difficulty in identification and tracing of the migrants.”
b.    This is a realistic assessment of the entire situation. In fact, this Hon’ble Court in its judgment and order dated 17.12.2014 has noted the statement of Minister of State for Home Affairs in Parliament that as of 31.12.2001, there were 50.00 lakhs illegal immigrants in Assam. The relevant extract of the said judgment at Paragraph 16 reads as follows:
“16. On 14th July, 2004, in response to an unstarred question pertaining to deportation of illegal Bangladeshi migrants, the Minster of State, Home Affairs, submitted a statement to Parliament indicating therein that the estimated number of illegal Bangladshi immigrants into India as on 31st December, 2001 was 1.20 crores, out of which 50 lakhs were in Assam.”
The population of Assam in 2001 was 2.61 crores, illegal migrants therefore constitute nearly 20% of the population.

When the border is porous and the entry is easy, the issue is how have these infiltrators gained identity proofs and where have they settled. 
c.    As informally gathered infiltration has taken on a much more sophisticated form, from mere crossing over physically.  As already stated herein above, Electors Photo Identity Cards (EPIC) are the only basis for proving identity and this has been so stated by the Assam Government in its response to queries where it has been said in response to the query “Have any separate identity cards been issued to villagers on the border?”, the response to which is :
“No such separate identity cards have been issued to villages on the international border. However, Voter Identity Cards have been issued to the villages on the border along with the villages of other places of the State.”
Apparently through organized networks it is possible to gain an entry into an electoral roll and get a Voter Identity Card while still being in Bangladesh, as informally informed by a Senior Police Official.
1.    Suggestion    Though written queries were raised but neither of the governments had discerned any pattern of infiltrators, also raised orally during meetings as to whether identity papers are forged or obtained under false pretences and if so the nexuses in this connection. While tackling border defences is one part, the manner in which illegal migrants entrench themselves in the State also needs to be inquired/ investigated independently.
2.    There appears to be one effective and easy solution which is by examining the trend of entries in electoral rolls for any place/ polling stations over the years and examining any out of the ordinary entry in terms of say a 40 years old entering the electoral roll for the first time as a son, a new family/ househeold earlier not there etc.. Electoral rolls over the last few decades have been revised and updated on an annual periodic basis, any entry in an electoral roll has a Serial Number, Name, Father’s Name, House Number, Age and Sex, with the village / area being shown at the top. Any fresh entry into an electoral roll will also have the same details, invariably a new entrant into an electoral roll will belong to an existing household or form part of a new household. If a new entrant into an electoral roll in an existing household is of an age far more than the minimum age required for enrolment, this will raise a suspicion as to the antecedents of such person in terms of being a foreign national. If a new household is entered into an electoral roll, then this will also raise suspicion about the antecedents of such persons/family.
In this manner, if polling stations are identified where there have been an unnatural increase in the number of voters, then a year by year analysis of the electors who have contributed to such increase in the above terms will disclose whether they are from the area or outsiders and if they are outsiders, then their antecedents need to be verified. 
5.    Conclusion
I have endeavoured to carry out the mandate given by this Hon’ble Court to the maximum extent possible and would like to place on record my appreciation and thanks to all the officers of the Central and State Government for their cooperation and help and particularly Mr. Sajjad Shah, Director Border Areas who accompanied me on all the tours, the Sector, Commanders of Dhubri, DIG Ajai Singh and Silchar DIG O.P. Tripathy who laid out a meticulous schedule of survey and of course, the Battalion Commanders and the ground personnel, who were unfailing in their courtesies.
Should this Hon’ble Court require any clarification or seek my services in any manner, I will only be too grateful to oblige and I would also like to express my gratitude to this Hon’ble Court for having granted me the privilege of undertaking this important task.
Report is submitted accordingly.
DATED 14.07.2015                                                                               Upamanyu Hazarika
(Senior Advocate)
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No. 562of 2012
(Under Article 32 of the Constitution of India)
IN THE MATTER OF:
Assam Sanmilita Mahasangha & Ors. Etc.                     ……Petitioners
Versus
Union of India & Ors.                                                          Respondents
REPORT ON INDIA-BANGLADESH INTERNATIONAL BOUNDARY IN TERMS OF ORDER DATED 14.07.2015 BY THIS HON’BLE COURT
MOST RESPECTFULLY SHEWETH:
Background
This Hon’ble Court by order dated 13.05.2015 had directed the appointment of a Commission, specifying the scope of the Commission therein, pursuant to which the said Commission was executed and two reports filed on 05.06.2015 and 29.06.2015 respectively. Upon consideration of the reports, this Hon’ble Court on 14.07.2015 was pleased to pass an order directing the Union of India and the State of Assam to take corrective measures as would be evident from a reading of the report.
“The Court directs the Union of India and the State of Assam to undertake all such corrective steps as would be warranted on a reading of the said report which includes intensive patrolling on the riverine borders in Dhubri and Cachar Section; improvement of border roads, electrification of flood lights, strengthening of BSF battalions and also the other para military forces that guard the international border. We would expect the Union of India and also the State of Assam to take all requisite steps forthwith and we request the Commissioner to spare his valuable time to visit the international border once again after two months to see the progress made in the meanwhile. The Commissioner has very fairly submitted that he would not require any additional funds. He is requested to submit a report of his findings on inspection”.
A copy of the order dated 14 July 2015 is annexed hereto and marked as Annexure “A”.
The suggestions/ recommendations in the reports are set out at pages 47 to 55 of the interim report, dated 03 June 2015 and pages 6 and 7 of the final report, dated 29 June 2015.
The salient recommendations, amongst others are as follows:
(i)            Demarcating/ identifying a particular stretch from the international boundary into a sterile zone in the riverine area, provision of identity cards to villagers in this area [I(a) pages 47, 48].
(ii)          Shifting of cattle haats 20 kms. away from international border [I(b) page -40].
(iii)         Addressing vulnerable patches in areas where international boundary runs through middle of the river/ or takes a zigzag route [I(c) pages 48, 49].
(iv)         Relocating villagers across fenced areas and closing the gates [II (a)page 49].
(v)          Plugging vulnerable patches of bridge and culvert areas [II(b) page 49].
(vi)         Providing regular electricity connection to floods lights and ensuring uninterrupted power supply. Giving priority to border roads and flood lights [III page 49 – 50].
(vii)        Increasing manpower strength of effective ground personnel [IV page 50].
(viii)      Implication of non lethal policy [V page 51].
(ix)         Setting up of an independent inquiry/ investigation into the manner in which illegal migrants entrench themselves in the State, including unearthing of nexuses in this connection. [VI page 53].
(x)          Examining electoral rolls for unnatural increase and growth in population, including entry of new house-holds/ individuals into the electoral roll suddenly [VI page 354].
(xi)         Necessity for independent inquiry and investigation into the manner in which foreigners illegally acquire citizenship and citizens rights is important as in the ongoing NRC process it will also enable and assist in the verification of the documents and citizenship of a large number of illegal migrants who are applying for citizenship”.
Accordingly, in terms of the timeline indicated by this Hon’ble Court schedule for inspection/ meeting was fixed for any period between 15.09.2015 and 26.09.2015 and both the Governments were informed by letter dated 11.08.2015. A copy of letter dated 11 August 2015 is annexed hereto and marked as Annexure “B”.
After discussion with the officials, schedule for inspection was fixed in the week of 20.09.2015 and after proceeding to Guwahati, inspection / meetings were held / conducted in the following order:-
        22.09.2015        Travel from Guwahati to Silchar
                                    Meeting with officials of District Administration in Silchar. Report filed by Additional S.P. Silchar disclosing number of infiltrators of this year and report of D.C. Cachar, copy of which are enclosed hereto and marked as Annexure “C”.
                                    Meeting with Deputy Commissioner, Karimganj, presentation made by Deputy Commissioner, copy of which is enclosed as Annexure “D”.
                                    Meeting with DIG Silchar Sector, report filed as Annexure “E”.
       23.09.2015         Departure from Karimganj to Silchar by road, Silchar to Guwahati by air and Guwahati to Dhubri by road.
      24.09.2015          Meeting with DIG BSF, Dhubri sector, who furnished comments on the issues raised in the letter and report filed as Annexure “F” and District Administration of Dhubri, including the Deputy Commissioner and Superintendent of Police. Documents handed over in the meeting with Dhubri District officials are marked as Annexure “G”.
                                    (Departure from Dhubri to Guwahati by road)
       25.09.2015         Guwahati meeting with State Government Officials, Commissioner, NRC, Additional Director General of Police, Secretary PWD, representatives from power distribution company and senior government officials.
Responses have been furnished by concerned Governments and agencies on the recommendations outlined above and the scheme of the present report is to set out the responses of various Governments/ agencies under the above said issues. Representations received from different organisations / individuals and information received disclose revealing facts as to the manner and mode in which such illegal migrants entrench themselves, with overt support from Government machinery. For the sake of convenience, the present report is divided into sections under separate heads, set out herein below:
(i)            Demarcating/ identifying a particular stretch from the international boundary into a sterile zone in the riverine area, provision of identity cards to villagers in this area [I(a) pages 47, 48].

·         Response of Assam Government
·         BSF Dhubri Sector
·         Observations and Suggestions
(ii)             Shifting of Assam Govt. cattle haats 20 kms. away from international border [I(b) page -40].
·         Smuggling on the rise
·         Fake Indian Currency Note (FICN)
·         Response of BSF Dhubri
·         Observations and Suggestions
·         Suggestion for proposed subordinate legislation
(iii)         Addressing vulnerable patches in areas where international boundary runs through middle of the river/ or takes a zigzag route [I(c) pages 48, 49].
·         Observations and Suggestions
(iv)         Relocating villagers across fenced areas and closing the gates [II (a)page 49].
·         Response of State Government
·         Observations and Suggestions
(v)          Plugging vulnerable patches of bridge and culvert areas [II(b) page 49].
·         Response of Dhubri sector
·         Observations and Suggestions
(vi)         Providing regular electricity connection to floods lights and ensuring uninterrupted power supply. Giving priority to border roads and flood lights [III page 49 – 50].
(vii)        Increase manpower strength of effective ground personnel (IV page 50]
·         Response of BSF
(viii)      Implication of non lethal policy [V page 51].
·         Observations and Suggestions
(ix)         Setting up of an independent inquiry/ investigation into the manner in which illegal migrants entrench themselves in the State, including unearthing of nexuses in this connection. [VI page 53].
(x)          Setting up of an independent inquiry/ investigation into the manner in which illegal migrants entrench themselves in the State, including unearthing of nexuses in this connection.
(xi)         Examining electoral rolls for un-natural increase and growth in population, including entry of new house-holds/ individuals into the electoral roll suddenly.
(xii)        Necessity for independent inquiry and investigation into the manner in which foreigners illegally acquire citizenship and citizens rights is important as in the ongoing NRC process it will also enable and assist in the verification of the documents and citizenship of a large number of illegal migrants who are applying for citizenship.
1.    Representation from Indrajit Barua:
2.    Representation from Sangrami Satirtha Sammelan:
3.    Representation from Jatia Nagarik Manch, Darrang:
4.    Case of Kamaluddin.
5.    Representation from Mr. Pradip Bhuyan:  
·         Observations and suggestions
The Bengal Eastern Frontier Regulation, 1873.
·         Line system in Assam:  
·         The Protection of Manipur People Bill, 2015: 
·         The Manipur Land Revenue and Land Reforms (Seventh Amendment) Bill, 2015:
·         The Manipur Shops and Establishments (Second Amendment) Bill, 2015 
·         RECOMMENDATIONS/ SUGGESTIONS
 Recommendations/ Suggestions
·         Sterile zone:
·         Cattle Smuggling
·         Suggested subordinate legislative measures
Vulnerable patches
Relocating villages
(i)    Plugging vulnerable patches of bridge and culvert areas [II(b) page 49].
(ii)  Providing Regular Electricity Connection
(iii) Increase manpower strength of effective ground personnel (iv page 50].
(iv) Implication of Non Lethal Policy
Expenses
(i)            Demarcating/ identifying a particular stretch from the international boundary into a sterile zone in the riverine area, provision of identity cards to villagers in this area [I(a) pages 47, 48].
This relates to the porosity of the riverine area, which has a long international border, particularly in Dhubri with the Brahmaputra (55 kms.) and incapable of being fenced, secured only by boat patrolling. Coexistence of Indian and Bangladeshi villages on the international boundary without any fencing/ barrier makes it a porous border, which factual situation is acknowledged by both the Central and the State Governments and in the Report of 05.06.2015, in line with the suggestions of the BSF, it was recommended that in these areas particularly, a particular stretch from the international border should be converted into a sterile zone, devoid of human habitation by relocating Indian villages on the international boundary. Additional aspect of issue of identity cards to border villages, has also been raised.
Response of Assam Government
During the meeting with the officials on 25.09.2015 it was informed that there is no proposal to issue separate identity cards for border villages and the Assam Government will continue to rely on Election Photo Identity Card (EPIC). During the meeting with the Dhubri Administration on 24.09.2015 the Deputy Commissioner indicated that a policy decision is required by the State Government for relocation of villages located on the international boundary for conversion into a sterile zone. However, the District Administration was undertaking a survey of all villages on the international border and expected to complete the survey by the end of October, the decision whether to convert it into a sterile zone or otherwise will be the decision of the State Government.
BSF Dhubri Sector
BSF Dhubri sector has given a categorical response in the affirmative on both the counts. As regards declaration of sterile zone it has been said:-
(a)     We are in total agreement with the observation and suggestion that 150 mtrs to 500 mtrs area from the International Border inside India should be declared sterile zone i.e. where no habitation is permitted by relocating the existing villages. This will be very effective steps to stop illegal infiltration stop migration and border crimes.
(b)    MHA/Assam Govt. to take action and reply since beyond jurisdiction of BSF.
As regards issuance of identity cards it has been stated:
(a)  Yes, BSF also agree that the border populace should be provided separate Identity Proof for regulating their entry into the main land from Char areas/ Border areas.
(b)  MHA/Assam Govt. to take action in this regard and reply accordingly.
Observations and Suggestions
Though, the operational agency guarding the border on the field is clearly of the opinion of declaration of a sterile zone, but a policy decision from the Central and State Government is still awaited.
(ii)             Shifting of Assam Govt. cattle haats 20 kms. away from international border [I(b) page -40].
Shifting of cattle haats to 20 kms. away from the International boundary, shifting of cattle impounded by the BSF away from the international boundary for auction, rather than being kept and released from the pound located at the international borders are the suggestions which have been made. This is in the context of riverine areas, particularly the Brahmaputra being a medium of transport of cattle smuggled into Bangladesh by putting cattle into the river so that they flow alongwith the river into Bangladesh. Three steps were suggested in this regard.
(i)            Shifting of cattle haats 20 kms. from the international boundary to increase cost of transportation to the international boundary for smuggling.
(ii)          Shifting of the cattle pound from the international boundary where they are impounded and auctioned, to the hinterland so that smugglers cannot take the cattle from the international boundary for fresh smuggling.
(iii)         Ascertain the bonafides of purchasers of cattle in the auction.
Smuggling on the rise
This year has seen an unprecedented increase in cattle smuggling. A yearwise table of cattle smuggled from 2006 onwards has shown that whereas there is a decline in cattle smuggled from 23,649 in 2009 to 2,562 in 2011, it has gone up from 3021 in 2014 to 17,152 upto 20.09.2015. The value of cattle smuggled in 2014 was Rs. 1,89,35,080.00 and in 2015 upto 20.09.2015 the value of cattle smuggled has been Rs.13,80,82,645.00 as per chart provided by BSF Dhubri sector. (Annexure “F”). The BSF Dhubri sector have further provided news reports for Bangladesh newspaper which also testify to the increase in cattle smuggling this year. (Annexure “F”).
Fake Indian Currency Note (FICN)
Fake Indian Currency Note smuggling and cattle smuggling are interrelated, as detailed in earlier report of 05.06.2015, payment for cattle being made in genuine Indian currency as well as in FICN and in this regard on 20.08.2015 a cattle smuggler from India was caught with Rs. 7,45,000/- in his possession, the details of which are provided in (Annexure “F”)
Response of BSF Dhubri
According to the BSF Dhubri sector, to tackle cattle smuggling effectively, the only way is to adopt the above measures as recommended and furthermore to stop movement of cattle from rest of the country into Assam. Response of Dhubri Administration is telling. According to the report filed by the Veterinary Officer of Dhubri in the present year the number of cattle coming in through in the border check post at Dhubri has shown decline and barring 31 in August has been Nil in June, July and September (Annexure “G”).  In contrast the BSF figures of cattle caught, which they say will be 30% to 40% of total volume smuggled / attempted to be smuggled, has shown a sharp increase for the last three months.
As already stated in the earlier report of 05.06.2015, there being no law to prohibit said movement of cattle, the police and civil authorities resort to use of statutes regulating cruelty to animals, Motor Vehicle Rules and the like which prescribe the manner and mode of animal transport as also health parameters etc. and which is not an effective deterrent as these are only measures, in a manner or speaking of harassment, hoping that it will be a deterrent. The view of the District Administration is that unless there is a clear legislative mandate prohibiting cattle movement, they can only stall and not prohibit such movement. It is informed by the CEO of the Dhubri Zila Parishad that the decision to shift the cattle haats has to be taken by the State Government and the Dhubri Zila Parishad, which is awaited. The office of the Assistant Commissioner of Customs has categorically opposed the shifting of cattle from the pound in the international border by giving multiple reasons in communication of 22.09.2015, inter-alia, cattle being in border outpost in riverine areas, transportation will be difficult as it will require boats, huge manpower, high transportation costs, risky for weak cattle during the transportation as also require security personnel to guard the seized cattle. In other words, the Customs Department is opposed to shifting the “custom haats” from the international border to inside.
Observations and Suggestions
(i)            Cattle smuggling has shown a phenomenal increase this year, over the last few years and it is therefore imperative that the shifting of the cattle haats, customs impound centre on the international border and having a system of ascertaining credentials of auction purchaser, be implemented immediately, rather than being mere proposals on paper.
(ii)          The gap in the value of cattle seized as ascribed by the BSF and as realised by the Customs authorities needs to be addressed urgently as gap is excessive and customs need to revise the reserve prices and have a fair value of the cattle.
(iii)         The objection of the Customs is in the teeth and face of the huge menace and not a constructive response at all. If the cattle were to be shifted and auctioned from somewhere, say 50 kms. from the international border, it will automatically increase the cost of transportation for the smugglers and doubtless be an effective deterrent, rather than cattle be auctioned and released from the pound on the international boundary, enabling any smuggler to merely buy such cattle at a nominal rate and then make fresh attempts at smuggling. In the earlier report it has been already said that the BSF has caught the same cattle being smuggled several times. The main hurdle according to the administration is the lack of effective laws to tackle this menace, in this regard there is the following suggestion to offer.
Suggestion for proposed subordinate legislation
The issue of lack of legislation enabling the executive to check such cattle smuggling appears to be the main hurdle. The primary problem is the movement of cattle from the rest of India into Assam and West Bengal, being bordering states of Bangladesh. In this regard, it is possible to amend existing subordinate legislation under Prevention of Cruelty to Animals Act, 1960. Under this Act, rules have been framed for transport of animals and transport of animals on foot. The Transport of Animals Rules, 1978 and The Prevention of Cruelty To Animals (Transport of Animals on Foot) Rules, 2001, which provide for transport of cattle in the first legislation and general in the latter. There is regulation in respect of transport of diseased animal in both the rules, one relating to motorised transport and the other by foot. According to Veterinary Officer, Dhubri, usually it is unproductive cattle those above to 10 -12 years or young male cows which are used for smuggling. It is possible to amend the rules by insertion of a new rule prohibiting / restricting the interstate transfer of cattle in respect of such specified categories. According to the officer the age of cattle is identifiable from different physical parameters.
This issue has caught the national attention and also a source of stifle between different communities and amendment of an existing subordinate legislation will not entail much of an effort.
(iii)         Addressing vulnerable patches in areas where international boundary runs through middle of the river/ or takes a zigzag route [I(c) pages 48, 49].
              In this regard the Dhubri sector of the BSF which has a large open riverine border has said that effective ground personnel for patrolling riverine areas is inadequate and one additional Battalion is required in the Dhubri sector in addition to the present three battalion and for which a proposal dated 22.07.2015 has already been made to the Ministry of Home Affairs.
              Observations and Suggestions
              This issue has two facets, conversion of areas with open riverine international boundary into sterile zone, coupled with additional Battalion. It is now for the Ministry of Home Affairs to take a decision on the raising of an additional Battalion. One aspect which has been highlighted by the BSF Dhubri sector is that introduction of technical innovation by installation of radars, CCTV, unmanned Arial vehicle (UAV) in respect of which the BSF had a workshop in June, 2013 and technical measures to conduct surveillance in such open areas, for different BSF sector, including the Dhubri sector have been suggested. Given the scale of the open riverine area, it was the suggestion of the BSF Dhubri sector that such technical innovation on international border be installed vigorously. A copy of the minutes of the workshop as also requirement of different sectors, including Dhubri sector is annexed hereto and marked as Annexure “H”.
(iv)       Relocating villagers across fenced areas and closing the gates [II (a)page 49].
In this regard the response of BSF to this suggestion has been endorsed by the BSF Dhubri sector where it has been stated that “it would be in the larger interest of national security, to relocate/ re-settle these villages in the hinterland by the Assam Government in the light of recommendation made in the report”.
Response of State Government
It appears that the issue of relocating villagers living across the fence before the international boundary had already occupied the Karimganj District Administration who had way back in 26.03.2013 made a detailed proposal for relocation of ten villages and which was done without undertaking of a survey of the villages, the socio economic condition, provision of financial assistance etc. which provide a strong policy base for any future action. The Dhubri District Administration informed that they were undertaking a survey of villages across the border and which is expected to complete by end of October, 2015.
Observations and Suggestions
1.    The communication of 26.03.2013 from the Deputy Commissioner Karimganj to the Government of Assam is instructive as it is a detailed proposal after empirical study of villages across the fence, for relocating them inside the fence and which takes into account all possible factors, including socio economic condition of families. It appears that this proposal was not acted upon by the Assam Government and this document can form a benchmark for relocating these villages.
2.    BSF Silchar Sector have said, site also shown on inspection, that 3.5 KM gap in fencing in Karimganj town has commenced construction from 01 August, 2015 western towards bridging the gap.
(v)        Plugging vulnerable patches of bridge and culvert areas [II(b) page 49].
The large number of water bodies on the international boundary and presence of bridges and culverts are vulnerable for infiltration and has been pointed out in the earlier report of 05.06.2015.
Response of Dhubri sector
According to the Dhubri sector there are 50 unfenced gaps in the sector out of which 34 are due to culverts built over nallahs. As far as these 34 are concerned, inspection has already been taken place in December/ January 2015 and proposal for construction of sluice gates and the like The remaining 16 gaps (approximately 50 kms.) have to be dominated by patrolling for which additional Battalion is required. Similar is the case with the Silchar sector where proposal has been submitted for plugging 76 gaps.
Observations and Suggestions
While the proposal has been initiated and inspections undertaken timelines need to be provided towards execution and completion of the proposal. It appears that financial sanction has not yet happened for proposals and where decision needs to be taken.
(vi)            Providing regular electricity connection to floods lights and ensuring uninterrupted power supply. Giving priority to border roads and flood lights [III page 49 – 50].
There are two aspects here, firstly energising the border flood lights installed, which has not been done in both the sectors i.e. Dhubri and Silchar. The status as furnished by the Assam Power Distribution Company Limited is as follows:
(i)            For the two electrical circles of Badarpur and Silchar, in the Silchar sector there are issues of retendering, of monsoons etc. and it has been indicated that by June, 2017 the entire process of complete installation of electric sub-station line and emerging the flood light will be completed (Annexure “F”).
(ii)          As far as the Dhubri sector is concerned, it was informed in the meeting that in the Dhubri District segment they expect to energise the line by December 2015 and in the Mankachar sector the lines are expected to be energised latest by 31.03.2016.
(vii)        Increase manpower strength of effective ground personnel (IV page 50].
This relates to additional manpower and increasing effective ground personnel for both the BSF and the State Government.
Response of BSF
BSF Dhubri sector have said that they have raised the demand for an additional Battalion as there is inadequacy of effective ground personnel. As far as the response of the State Government is concerned, as regards the case for full fledged river Police Battalion made by the S.P. Dhubri in presentation in the first inspection and accordingly suggested in the report of 05.06.2015, no response is forthcoming on this issue from the State Government.
(viii)      Implication of non lethal policy [V page 51].
As regards the non lethal policy practiced on the frontier in the international boundary by the BSF and restricted use of force while dealing with infiltrators / smugglers and which was a handicap observed by the field unit. The response of the Dhubri sector is interesting and is extracted below:
(a)      Non lethal Weapons are being used as per policy of FHQ/ HQ SPL DG(EC) to reduce death cases of both Indian and Bangladesh miscreants/ Smugglers and also to avoid unnecessary Human rights violations. This is also seen in view of improved relations between India and Bangladesh Govt. However depending upon the situation, options is always left with Jawans to use fire arms in self-defence depending upon situations. And this practice is going on in the AOR of Ghty FTR.
It is towards reducing death cases of smuggler that this policy has been adopted and also to avoid unnecessary human rights violations.
Observations and Suggestions
It is obvious that this policy is to reduce death of miscreants/ smugglers, in other words to encourage miscreants and smugglers. The issue of human rights in the context of those who illegally attempt to cross the border is incomprehensible, more so, in the context of infiltration and cattle smuggling with huge implications for national security. The Ministry of Home Affairs in the earlier round also did not respond to a query in this regard. It is suggested that this Hon’ble Court may ascertain the view of the Ministry of Home Affairs in this regard, as also the implication of following a non lethal policy.
(ix)            Setting up of an independent inquiry/ investigation into the manner in which illegal migrants entrench themselves in the State, including unearthing of nexuses in this connection. [VI page 53].
Issues (ix), (x) & (xi) are interrelated and arise out of the manner in which illegal migrants entrench themselves in the State, acquiring citizenship rights and concomitant benefits and in the report of 05.06.2015 (Pg. 51 to 54) and 29.06.2015 (Pg.6 to 7) this issue has been dealt with. The said issues are extracted herein below:
(x)       Setting up of an independent inquiry/ investigation into the manner in which illegal migrants entrench themselves in the State, including unearthing of nexuses in this connection.
(xi)      Examining electoral rolls for un-natural increase and growth in population, including entry of new house-holds/ individuals into the electoral roll suddenly.
(xii)     Necessity for independent inquiry and investigation into the manner in which foreigners illegally acquire citizenship and citizens rights is important as in the ongoing NRC process it will also enable and assist in the verification of the documents and citizenship of a large number of illegal migrants who are applying for citizenship.

The above issues are interconnected as till date there has been no independent inquiry or investigation or identification of a foreigner in any official / organized manner.
As stated in the earlier report of 29.06.2015, the State Government had said that:
“The population in the Indo-Bangaldesh Border has similar language culture way of living and religion resulting in great difficulty in identification and tracing of the migrants.”
This Hon’ble Court in its judgment of 17.12.2014 has noted the statement of Minister of State for Home Affairs in Parliament that as of 31.12.2001, there were 50.00 lakhs illegal immigrants in Assam. The relevant extract of the said judgment at Paragraph 16 reads as follows:
            “16.     On 14th July, 2004 in response to an unstarred question pertaining to deportation of illegal Bangladeshi migrants, the Minister of State, Home Affairs, submitted a statement to Parliament indicating therein that the estimated number of  illegal Bangladeshi immigrants into India as on 31st December 2011, was 1.20 crores, out of which 50 lakhs were in Assam”.
The updating of the National Register of Citizens (“NRC”), will only identify Indian Citizens residing in the State, however, the issue of identification of foreigners still remains and which is an exercise required to be undertaken in terms of the tripartite agreement between the Central and the Assam Government and the organizations leading the Assam agitation, resulting in the Assam accord of 15.08.1985, in terms of Clause 5.8, which reads below:-
“5.8.    Foreigners who came to Assam on or after March 25, 1971 shall continue to be detected, deleted and expelled in accordance with law. Immediate and practical steps shall be taken to expel such foreigners”.
It is in the above background that suggestions was made of setting up an independent inquiry/ investigation as to the manner in which foreigners entrench themselves, unearthing nexuses, examining electoral rolls, over a period of time to detect unnatural increase and growth in population, new entrants, new households, raising doubts about their nationality and this is all the more important in the context of the verification process required to be carried out in respect of the documents submitted during the updating of the National Register of Citizens.
Response of State Government:
The State Government has given no response to these issues relating to the inquiry and investigation in the manner in which illegal migrants entrench themselves. In the meeting the State Government Officials on 25.09.2015 the State coordinator of NRC Mr. Hajela was also present. According to him the biggest challenge in the verification process of the applications filed in the updating of NRC, is verification of antecedents of the Applicant. The endeavour of any illegal migrants is to locate an “eligible parent’, available in the official record before 1971. According to him the computer programme / software is designed to show the names of all applicants who trace their ancestry to one person prior to 1971. As intimated by him they propose to tackle this by confronting all those who claim lineage from one person with the actual descendants, the most natural and full proof method of verification is through DNA testing and on being asked about using DNA testing he said that though he had given the proposal for DNA testing and it had been rejected by the Central Government in 2013. The problem with confronting actual descendants with those who claim lineage is that there is nothing to stop the actual descendants from charging a premium and certifying the false claimants.
Representations received
Though the State Government has denied taking any decision or any steps in the process, however, three representations received from different individuals and organizations throw considerable light on the various nexuses at work in enabling illegal migrants to entrench themselves as citizens. The representations received are as follows:-
6.    Representation from Indrajit Barua: Mr. Barua is an eminent Civil Engineer and has undertaken several studies on illegal migration as well as instituted several cases in this regard, one of those cases on the Disturbed Areas Act being reported as Indrajit Barua vs. State of Assam ( (1985) 4 SCC 722). He has also undertaken a statistical analysis of the change in demographic pattern and by extrapolating population growth figures, has arrived at the finding that indigenous population will become a minority by 2047 Mr. Barua has along with his representation enclosed a factual analysis of the unnatural increase in population in Boko Legislative Assembly constituency, and one village abutting Kaziranga National Park. Mr. Barua took the electoral rolls from 1971 till 1997in this assembly constituency, analysed different polling stations for increase in electors and the results are revealing:-
(i)            In Boko Legislative Assembly constituency, 80 kilometres West of Guwahati having a riverine border with the Brahmaputra, analysis of 14 polling stations and increase in electors between the period 1971 to 1997 shows that percentage of voters has increased from 80% to 2135% and in most cases the number of electors having more than doubled.
(ii)          For one polling station abutting Kaziranga, Najan Polling Station, Village Kuthori between 1979 to 2015 the number of Hindu voters showed an increase of 132.407% and Muslim voters increase by 409.76%.
Mr. Barua has suggested that in view of the disproportionate increase in population and no institutional / governmental measures to tackle such infiltration and entrenchment, measures like land reservation and reservation in government jobs for those who are Indian citizens in 1951 should be put into place. Representation from Mr. Barua is enclosed as Annexure “I”
7.    Representation from Sangrami Satirtha Sammelan: A citizens’ organization based out of Sipajhar, which is in the North bank of the Brahmaputra, across Guwahati (which is in the South bank) in respect of huge tracts of government land, admitted by the State Government to be under the encroachment of persons of doubtful nationality. Copy of Representation from Sangrami Satirtha Sammelan is enclosed as Annexure “J”.
At the outset, I must say that on the above mentioned facts a case under the Assam Land Grabbing Act 2010 has been filed, where I hold a pro-bono brief for the Applicant, and the admitted facts are based on official documents are revealing. The case is pending before the Special Court constituted under Assam Land Grabbing Act, 2010 in Mangaldoi but discloses the pattern of sudden explosion of population and immigration into this area. The Special Court has taken cognizance of the complaint and reports have been called for from the civil authorities, but the facts are telling.
The case has been instituted on the basis of admitted facts of encroachment by the Circle Officer (equivalent to Tehsildar), Sipajhar of Darrang District. The facts stated in the representation are as follows:-
a.    An RTI Application was filed by one Shri N. Kalita in April 2013 before the Circle Officer, Sipajhar seeking details of Village Grazing Reserve (“VGR”) and Professional Grazing Reserve (“PGR”) lands in Sipajhar circle. The response was furnished by the Circle Officer on 22.05.2013 saying that in the riverine areas of Sipajhar Circle there were 77,420 bighas of VGR and PGR land (around 26,000 acres). It is also relevant to note that the RTI response also said that in PGR land no Patta / land holding rights can be conferred as such lands are meant only for the purpose of grazing of cattle and not for settlement upon any individual or group.
b.    A second RTI application on 01.08.2013 elicited a response, reiterating that PGR land cannot be given settlement to anyone and out of the 77,420 bighas of land, 3000 bighas is PGR land.
c.    The most pertinent response is the response to the last query where it has been stated that all of the 77,420 bighas of land is under encroachment.
d.    A further RTI application of 22.08.2014 seeking details of government schools in this area under encroachment elicited a response that in this 77,420 bighas of land there are 32 government schools, out of which nine schools are on PGR land.
e.    In this regard, it is further relevant to note that under The Settlement Rules, 83 to 96 of the Assam Land Revenue Regulation, 1886 PGR, Land cannot be allotted for any purposes other than grazing.
f.     The representation furthermore furnishes photographs of the area showing extensive habitation and presence of government schools and health centres.
g.    Two official documents have also been enclosed, one is a communication of 23.12.1993 which relates to an inquiry being conducted into allotment of land to certain persons in this area without screening their nationality. The communication is from the Secretary, Department of Revenue, Government of Assam to the Commissioner, North Assam Division, Tezpur, within whose jurisdiction Sipajhar circle falls. While directing the institution of an inquiry and spot verification it was observed in this communication “but the D.C. has not screened the nationality and eligibility of the allottees before issuing the allotment order. ADLR has also reported that the D.C. Darrang had allotted the land without verification of nationality, eligibility etc. for fear of being involved in contempt proceedings. He also reported that this place has become the abode of doubtful national and criminals, as a result there has been inconvenience to the local professional greedier in grazing their cattles. ….. Therefore, I request you kindly inquire into the allotment of land to the non Indians. ……”.

h.    Pursuant to the inquiry there was a further direction by order dated 09.05.1994 from the Revenue Department to the Deputy Commissioner, Darrang directing immediate eviction from this area. The said order reads as follows:
“I am directed to say that it has been seen from an enquiry report an allotment of Phuhuratali P.C.R. land in Darrang District submitted by the Commissioner North Assam Division, Tozpur vide his D.O. No. CHA/Con.1/94/26 dated 18.2.94 date the allottees are all non-eligible person. They are also not from Darrang Dist., even the as per their claims that they are claimed to be landless, erosion, affected people from the district of Kamrup, Nalbari, Barpeta, Goalpara and Dhuburi. They have not been able to produce the eligibility certificate from the concerned Deputy Commissioner so far as asked for in the allotment order, although one year from the date of year has elapsed. Those allotments cancelled automatically with effect from 12.1.94 as none of the allottee could furnish the illegibility certificate within a period of one year as stipulated in the order of the Deputy Commissioner Darrang. The Commissioner North Assam Division has further stated that the entire areas including Dag No.6 and 7 which even as per the present revenue records is within the P.G.R. under the occupation of the people, who are mostly outsiders and not from the locality. The purpose for which, these 199 families were allotted land in Dag NO.2,4,5 was to clear the P.G.R. from encroachments even this has not been served.

Under the above circumstances, you are requested to remove all those persons from the area including the allotted who are not eligible for allotment, as they are causing nuisance to the people and the graziers of the locality.

You are therefore, requested you to take immediate step for eviction of all persons from the aforesaid area and make the land from encroachment. Action taken on removal of encroachment may please be intimated to the govt. immediately.”
The above correspondence and eviction order discloses the entire nexuses and the manner in which illegal migrants occupy government / grazing lands, as has been observed in the communication of 09.05.1994 which is also an eviction order, till date not executed, that typically such illegal migrants pose as landless, erosion affected people from other districts of Assam and thereby successfully obtain allotment in other areas.
i.      After receipt of RTI queries, two representations were made to the Deputy Commissioner Darrang one of 21.09.2014 and second dated 07.10.2014 seeking urgent removal of encroachers, the only response was to seek a report from the Circle Officer.
It appears that inspite of such strong observations and the eviction order, the same has not executed and numbers have only grown.
j.      Thereafter, a case under the Assam Land Grabbing Act, 2010 was filed before the Special Court, Mangalodi, in which the Court has taken cognizance of the matter, however, on nine dates the matter has been taken up with no effective progress.
k.    On 31.07.2015 the Circle Officer filed a report furnishing names of only 215 encroachers, whereas the electoral rolls for the same area show 2576 number of households in only 1700 bighas of PGR land Dholpur 1, population will be in excess of 10,000/-.
l.      The above facts reveal the following:
i.              Admittedly, encroachment has been going on for the last more than 25 years and admittedly these persons are “non-Indians” as evident from official correspondence and have displaced traditional grazers and local people.
ii.            Despite the land being admittedly under encroachment, nevertheless all government facilities including schools, health centres and polling stations are available in this area.

iii.           Rules 83 to 96 of the Settlement Rules under the Assam Land Revenue Regulations, 1886, are clear that in respect of grazing lands, “No person shall occupy any part of such grazing grounds for purposes other than grazing” (Rule 95) and penalties are prescribed for contravention .
iv.           Out of 77,420 bighas of land under encroachment, 3000 bighas is grazing land, not only under encroachment, but Government have set up schools and other facilities for encroachers on such land. 
v.            In 1971 which is the cut-off year for grant of citizenship (24.03.1971), for the migrants from Bangladesh into India, there were no polling stations in this area, it is stated that the first polling station was established in 1985 and the number of electors in this area is now in the region of 25,000/-
8.    Representation from Jatia Nagarik Manch, Darrang: Another representation has been received from the above organization which again relates to 5000 bighas of land in a riverine area adjacent to the area mentioned above and which was occupied suddenly, overnight on 15.09.2015. Darrang District has two revenue circles Sipajhar and Mangaldoi both of which are contiguous and have a riverine border with the Brahmaputra, which is where migrants usually settle. As disclosed in the representation, on 15.09.2015 in this particular area, number 2 Hetow overnight some 300-400 persons illegal migrants of Bangladeshi origin came and forcibly occupied part of the land. The land has been cultivated by the local population by the last 50 years and the land revenue also been paid. According to the representation despite a police complaint being lodged neither the Deputy Commissioner nor the S.P. have undertaken any action to restore the land. Copy of representation from Jatia Nagarik Manch, Darrang enclosed as Annexure “K”.
9.    Case of Kamaluddin. There is a reported judgment of the Hon’ble Guwahati High Court in Kamalludin Vs. State of Assam, decided on 27.01.2000, which is a challenge to the determination of the petitioner as a foreigner in the said case assailing an order of deportation. This case is instructive and reflective of the situation prevailing on the ground as the petitioner who was detected and found to be an illegal migrant/ foreigner under the rigorous IMDT Act regime, since set aside. The petitioner in the said case had a passport issued in Pakistan on 02.11.1994, the relevant extract of which at Paragraph 4 reads as follows:-

“The State of Assam has produced passport issued by the Government of Pakistan, in the name of the Petitioner and that passport shows that before arrival in India, the Petitioner was travelling from Karachi to Bangladesh. That passport was issued on 02.11.1994 by the Government of Pakistan.....”

Thereafter, “he procured a passport No. 0-822363 by illegal means and entered into India (Assam)”, in Bangladesh.

In Paragraph 2 it is recorded that the Petitioner claims to own land in a particular village, in Nagaon District his name was inserted in the electoral roll and even contested an Assembly election. Now the relevant extract at Paragraph 2 reads as follows:-

“The case of the Petitioner is that he is a citizen of India and resident of Village Kapashbari, P.O.Murajhar, District-Nagaon. It is also claimed that he possesses land at the particular village. It is further asserted by the Petitioner that no name was inserted in the electoral roll as published from time to time. The Petitioner even contested the last Election in the year 1996 from No. 90, Jamunamukh Legislative Assembly Constituency.”

While dismissing the Writ Petition the Hon’ble Court was constrained to observe “I only express my displeasure with regard to the casual and cavalier manner in which voters list are prepared/ made in Assam. On the basis of such an incorrect voters list a person was allowed even to contest the election.”

The above person possessing a Pakistani and Bangladeshi passport nevertheless owned his own land and contested an Assembly Election.
Copy of the judgment dated 27.01.2000 passed by the Hon’ble Guwahati High Court in Civil Rule No.2501 of 1998 is annexed herewith and marked as Annexure “L”.
10. Representation from Mr. Pradip Bhuyan: A representation has been received from Mr. Pradip Bhuyan, a senior citizen and who has been offering suggestions in respect of the modalities to be followed in the NRC updating process. As regards NRC verification, Mr. Bhuyan has proposed a modality for investigation, to stringently screen post-1971 Bangladeshi foreigners “who are applying, masquerading as Indians.” What he has proposed in short is a residential family history relating back to 1970, i.e. where has the applicant / father / grand-father resided in the last 45 years. This residential family history is easily verifiable from the village censuses, particularly of 1971 and documents already notified. Mr. Bhuyan in his representation has set out the modality proposed by him, which he says is entirely in consonance with the procedure laid out for verification.
Copy of the representation from Mr. Pradip Bhuyan is annexed as Annexure “M”
Observations and suggestions
The above three representations of Mr. Barua, Sangrami Satirtha Sammelan and Jatia Nagrik Manch are factual in nature, the third representation is part of a police complaint which according to the respondents has not been acted upon by the police. Nevertheless, all the three representations are indicative of the manner in which illegal migrants of doubtful nationality have managed to entrench and establish themselves in the state.
The salient facts which emerge from the above three cases is that:
1.    In Boko Assembly Constituency, out of 14 identified polling stations from 1971 increase in number of electors over a 26 years period has been in the region of 80% to 2135% for different polling stations. Such sudden influx of electors, registering them as such without ascertaining their nationality discloses active participation of State agencies in this regard. Needless to state, these areas have also been given all government facilities like schools, health centres, agricultural centres etc. and according to reports received a large part of Boko which is also tribal belt, there has been considerable encroachment.
2.    The encroachment in the 26,000 acres of land in Sipajhar circle of Darrang District, inspite of government records disclosing that the encroachers are of non Indian origin / persons of doubtful nationality and despite eviction orders being passed, on paper, with the connivance and support of the persons in authority, those persons are unlawfully using and occupying the lands and they have only grown in number and all facilities to which citizens are entitled have been extended to them including voting rights despite the government being fully in the know that these encroachers are not entitled any such benefits.
3.    The Assam Government inspite of the specific recommendation/ suggestion in the report of 05.06.2015 and 29.06.2015 and the directions of this Hon’ble Court of 14.07.2015 to act upon these suggestions has chosen not to furnish any response.
4.    In the face of such glaring facts, continued aggression of illegal migrants, changing the demographic pattern, what are the options available, more so when the government and its agencies act only for the benefit of such migrants. It is instructive to note that there has been a sharp increase in the Muslim population in Darrang district between 1971 to 2001. The two representations from Sipajhar and Mangaldoi are from Darrang district. The illegal migrants being largely Muslims, the percentage of increase in Muslim population is a benchmark for the increase in migrant population and has been noticed by this Hon’ble Court in its judgment of Sarbananda Sonowal (I), Sarbananda Sonowal (II) and the judgment in the present case rendered on 17.12.2014. In Darrang district, the percentage of Muslims in 1971 was 23.9%, going up to 35.59% in 2001, the religious demographic figure for the census of 2011 in terms of a district wise figures are not yet available, however, the overall Muslim population in the State has increased from 30.9% in 2001 to 34.23% in 2011.

5.    The Assam accord of 15.08.1985 was a solemn commitment and undertaking by the Central Government and the Government of Assam to identify and expel foreigners, but as already stated, out of estimated 50 lakhs infiltrators in 2001 (20% of the population), till 2012 only 2442 have been detected as deported according to White Paper of Assam Government.
6.    Neither the Central Government nor the State Government have taken any steps whatsoever to identify foreigners, updating of the National Register of Citizens (NRC) will only identify the citizens.
The affidavit filed by the Central and State Governments before this Hon’ble Court do not disclose any steps which either of the Governments propose to undertake towards identifying foreigners and clearing under encroachment as already stated herein above. Identification of foreigners and clearing of Government land and land in tribal belt of encroachers are solemn undertakings given by both the Governments in the Assam Accord in Clauses 5.8 and 10 respectively which read as follows:
“5.8.    Foreigners who came to Assam on or after March 25, 1971 shall continue to be detected, deleted and expelled in accordance with law. Immediate and practical steps shall be taken to expel such foreigners.
10.       It will be ensured that relevant laws for prevention of encroachment of government lands and lands in tribal belts and blocks are strictly enforced and unauthorised encroachers evicted as laid down under such laws”.
Under the terms of the Assam Accord the responsibility for identifying a foreigner, clearing land of encroachment was the obligation undertaken by both the Central and State Government and even though Foreigner Tribunals have been set up under orders of this Court in Sardananda-I, Sarbananda-II and judgment of this Hon’ble court on 17.12.2014 in this matter, however, complaints are filed largely by private persons and no organized exercise has been undertaken by Governments in this regard.
7.    In this situation of government, not implementing the Assam accord. Mr. Indrajit Barua has suggested a protective cover /shield for genuine Indian citizens in Assam in the form of restrictions on land transfer and reservation in Government jobs. He has suggested the introduction of an Inner Line permit or that all those who figure in the 1951 National Register of Citizens in Assam, all those who have been residents of Assam in 1951 and any person who has been an Indian citizen in 1951 residing in any part of the country, their progeny and successors should be the only ones entitled to purchase of land in Assam or any allotment of land by the Government. He has also suggested reserving government jobs and employment in any agency of the State, applying a similar benchmark.
8.    This kind of reservation for indigenous inhabitants / restrictions on outsiders to the North East is not new to this area and more specifically to the tribal areas in Assam as well. In fact, even in respect of Assam as early as 1920s, upon seeing the effect of large scale migration, encouraged by the All India Muslim League at that time, the officials of the British Government took steps to restrict the land and area in which the migrants from East Bengal could settle, for indigenous non tribals as well the Regulations from time to time are set out in brief herein below:
a.    The Bengal Eastern Frontier Regulation, 1873.
This Regulation was made under the Government of India Act, 1870 and made applicable to the Districts of Assam and present North Eastern States, part of undivided Assam at that time, including the Districts of Kamrup, Darrang, Nowgong, Sibsagar and Lakhimpur, in present day Assam. Restrictions in the Regulations are two fold, firstly an inner line would be prescribed in each of the Districts (Regulation 2), pursuant to which the State Government may then restrict any persons residing or passing through such district from the going beyond such line without a pass, violation of which would invite imprisonment upto a year (Regulation 3). Secondly, “no interest in land or the product of land beyond the said “Inner Line” without the sanction of the State Government” can be acquired by any person not being a native of the Districts comprised. These regulations still continue to govern these areas and as recently as 08.09.2006 the Mizoram Government issued guidelines under the said Regulations.
Copy of the Regulations of 1873, including the Guidelines framed by the Mizoram Government of 08.09.2006 are annexed herewith and marked as Annexure “N”.
b.    Line system in Assam: During the early part of the nineteenth century mass migration of cultivators from Mymensing District of East Bengal into the plains of Assam was encouraged by the British Government and the All India Muslim League Governments. Such migration as it affected the indigenous culture and identity of the indigenous inhabitant, the British Officials adopted a system of classifying areas whereby migrants were restricted to particular areas prohibited from crossing a ‘line’. The manner of implementation has been described very succinctly by Bodhi Sattwa Kar in an Article titled “British Colonial Policy of Line System & Immigration Issue in Assam (1911-1931)” in the following words:-
“Under Line System the Villages in Nowgong were divided into four categories-(1) exclusively occupied by immigrants; (2) exclusively reserved for Assamese; (3) mixed villages in which there both immigrants and Assamese; and (4) line villages in which a line has been drawn on the Assamese side of which no immigrant was allowed to settle.
The first restriction was applied only to Mymensinghias. But immigrants from other districts of Bengal started coming in. In 1924, by an order of Mr. Thomas the word Mymensinghia was dropped and the term immigrant was substituted to include all immigrants.”
Copy of the Article published in the Echo titled British Colonial Policy of Line System & Immigration Issue in Assam (1911-1931) is annexed herewith and marked as Annexure “O”.
c.    After independence the Assam Land Revenue Regulation was amended by insertion of Chapter ‘X” and insertion of Sections 160 to 171 to provide protection of certain classes of people “who on account for their primitive condition and lack of education or material advantages are incapable of looking after their welfare insofar as such welfare depends upon their having sufficient land for the maintenance”. This led to constitution of areas under Section 161 populated by such people. Under Section 164, there is a bar on transfer of land to the class other than that defines in Section 160. These provisions are made applicable to areas where tribals are predominantly residents.
d.    In fact, in other north eastern states which are predominantly tribal like Arunachal Pradesh, Nagaland, Mizoram, Meghalaya there is a restriction on transfer of land to those who do not belong to the State and the Bengal Eastern Frontier Regulations, 1873 are applicable which restrict land alienation and in Meghalaya the applicable Act is Meghalaya Transfer of Land (Regulation) Act, 1971. Copy of Meghalaya Transfer of Land Regulation Act is annexed hereto and marked as Annexure “P”. The only State like Assam which has a large non tribal population is Manipur and Manipur in terms of land settlement is geographically divided into two parts, the hill areas where there is restriction of alienation of land to non tribals and the Imphal Valley where there are no restrictions on land transfer.
e.    Even Manipur has now initiated the process of restriction on land transfer. Large scale migration of suspected illegal migrants into Imphal Valley, Manipur has led to a public agitation resulting in the Manipur Legislative Assembly (MLA) passing three enactments:
(i)        The Protection of Manipur People Bill, 2015: The statements of objects and reasons of the Bill specifies that it has been enacted because of large scale influx of Non-Manipur people and thereby bringing into place a system akin to the inner line system which had been repealed in 1950. The relevant extract from the objects and reasons reads as follows:
“The population growth rate of Manipur is found to be higher than that of India.

Before the merger of Manipur to India on 15.10.1949, the entry into Manipur was regulated by imposition of a permit system. That permit system was abolished w.e.f. 18.11.1950 by a notification issued by the then Chief Commissioner of Manipur. Since then, there is no restriction on the entry by the citizen of India. The increase in the population has caused a panic in the mind of the people of Manipur. Of late, a mass movement by the people of Manipur of losing their existence can be done away with a reasonable restriction in the influx of Non-Manipur people. Further, the Non-Manipur people who intended to stay in the State as tenants need to be regulated with certain reasonable restrictions.”

The said bill defines Manipur people as those whose names are in the National Register of Citizens, 1951, Census Report 1951 and Village Directory of 1951 and their descendants [Section 2(b)] and Non-Manipur persons are those other than Manipur people [Section 2(c)]. Under Section 4 there is a requirement for registration of all Non-Manipur persons entering the State and under Section 5 even for tenants who are Non-Manipur.

(ii)      The Manipur Land Revenue and Land Reforms (Seventh Amendment) Bill, 2015: By this Bill there are restrictions on purchase of land by a Non-Manipur person and purchase of land by a Non-Manipur person requires permission of the State Cabinet [Section 14A(4)].
(iii)     The Manipur Shops and Establishments (Second Amendment) Bill, 2015: Under this Act every employer is required to register the names and particulars of every employee. Copies of the enactments The Protection of Manipur People Bill, 2015, The Manipur Land Revenue and Land Reforms (Seventh Amendment) Bill, 2015 and The Manipur Shops and Establishments (Second Amendment) Bill, 2015 are annexed hereto and marked as Annexure “Q” (Colly).
(iv)     It is relevant to note that the Inner Line Permit System was repealed in Manipur on 18.11.1950, however, owing to the influx of illegal migrants from illegal migrants they have sought to reintroduce such restrictions.

f.     It is believed that the bills are pending assent of the Governor/ President. 
9.    As far as Assam is concerned the fact and implications of demographic change owing to migration from erstwhile East Pakistan/ Bangladesh has been very exhaustively documented by this Hon’ble Court in its three judgments of:
a.    Sarbananda Sonowal v. Union of India (2005) 5 SCC 665
b.    Sarbananda Sonowal (II) vs. Union of India (2007) 1 SCC 174
c.    Assam Sanmilita Mahasanga v. Union of India (2015) 3 SCC 1
This Hon’ble Court taking judicial notice of the fact of demographic change has in Sarbananda I, after discussion in Paragraphs 50 to 62 has held in Paragraph 63 that the State of Assam is facing “external aggression and internal disturbances”, in terms of Article 355 of the Constitution, contributing to insurgencies. It has also been noted by this Hon’ble Court in paragraph 62 as under:-
            “Pakistan’s ISI is very active in Bangladesh supporting militants in Assam. Muslim militant organizations have mushroomed in Assam. The report also says that this can lead to the severing of the entire landmass of the North-East with all its resources from the rest of the country which will have disastrous strategic and economic consequences.”
10.     This Hon’ble Court further noted in Paragraph 70 that “…the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of North-Eastern region. Their presence has changed the demographic character of that region and the local people of Assam have been reduced to a status of minority in certain districts….” and thereafter has held in Paragraph 71 that “…………Undoubtedly, Article 29(1) confers a fundamental right on all sections of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own to conserve the same and any invasion of this right would be ultra vires.”
11.     What has been held by this Hon’ble Court more than 10 years ago still holds good on the ground, in fact the situation has become worse as will be evident from the facts set out in the representation hereinabove. Inspite of all these facts being within the knowledge of the Central and State Governments, the influx into Assam and into new areas of Assam continues unabated and inspite of being patently illegal, Governments have gone out of their way to support foreigners in direct contravention of rights of citizens and indigenous inhabitants. As has been rightly observed by this Hon’ble Court in terms of Central Government Affidavit in Sarbananda Sonowal-1, that there are “interested religious and political elements encouraging immigration”. In this situation, when successive governments have failed, or rather encouraged immigration, the only option that therefore remains is a protective cover. Moreover by executing the Assam accord and consequent amendment to the Citizenship Act, the burden of 23 years of migrants has to be borne by the State alone, who have been given citizenship status, in return for which no protective cover has been conferred on the existing population which has to bear this burden.

12.     The primary reason for which illegal migration occurs is hunger for land, the population density of Bangladesh, subject of perennial floods is 1222 (2014) per square ki8lometer and the population density of Assam is 397 (2011) as opposed to 382 per square kilometre for the rest of the country. If the migrant can be deprived of land it will be an effective deterrent to any migrant for any further migration or for existing illegal migrants to go back to Bangladesh through the porous border. It is therefore proposed as follows:-
a.      There should be a restriction in transfer of land, whether by way of sale, purchase, gift or any other such transaction or by way of allotment from government or any other agency only to those who have been citizens of India in 1951 and their descendants in 1951. The benchmark date can be the date of publication of the National Register of Citizens in Assam in 1951. In other North Easter States land transfer is restricted only to those belonging to the state for protection from outsiders. In Assam, threat is not from Indian Citizens but from Migrants from Bangladesh.
While the existing tribal belts in Assam have restrictions on transfer of land to non tribals, excepting those non tribals who were residents in such tribal belts/ block at the time of their constitution, this protection is not available to land held by non-tribal. Even in tribal blocks/ belts the statutory protection though is conferred under the Assam Land Revenue Regulation 1886, however, under Section 162 (4) the State Government by an executive Notification can reduce, de-notify or alter the area of a tribal belt/ block. This has to be put beyond the pale of any executive interference.
Unlike, the other North-Eastern states which have a predominant tribal composition and protection has been accorded in various forms, in Assam it is available as already stated above only to tribal belt/ blocks. It is imperative that the same now be extended to non-tribal areas as well.
This is the only manner in which the illegal migrants can be staved off from acquiring land through all means, the favourite mode being to pose as erosion affected persons from other districts with the aid and assistance of a complicit and corrupt administration.
b.      The huge influx over the years has created a huge immigrant population which competes for jobs, in government institutions with Indian citizens, without verification of the antecedents of such Non-Indians. It is therefore, necessary that for an effective deterrent for any illegal migrant and protection of the indigenous inhabitants that the same benchmark for transfer of land be adopted for provision of employment in all the three wings of the States in Assam.

13.     It goes without saying that above measure will require legislative/ executive initiative, nevertheless it has been suggested in this report for the concerned governments to take note.


14. RECOMMENDATIONS/ SUGGESTIONS
Observations and suggestions have been set out under the different heads hereinabove, the same are set out herein below for the sake of convenience in comprehensive manner, with additional recommendations.
(i)    Sterile zone:
Though, the operational agency guarding the border on the field is clearly of the opinion of declaration of a sterile zone, but a policy decision from the Central and State Government is still awaited. In the last two months neither of the governments have intimated their views in this regard and this Hon’ble court may ascertain the same.
(ii)  Cattle Smuggling

Cattle smuggling has shown a phenomenal increase this year, over the last few years and it is therefore imperative that the shifting of the cattle haats, customs impound centre on the international border and having a system of ascertaining credentials of auction, purchaser be implemented immediately, rather than being mere proposals on paper.
(iii) The gap in the value of cattle seized as ascribed by the BSF and as realised by the Customs authorities needs to be addressed urgently as gap is excessive and customs need to revise the reserve prices and have a fair value of the cattle.
(iv) The objection of the Customs is in the teeth and face of the huge menace and not a constructive response at all. If the cattle were to be shifted and auctioned from somewhere, say 50 kms. from the international border, it will automatically increase the cost of transportation for the smugglers and doubtless be an effective deterrent, rather than cattle be auctioned and released from the pound on the international boundary, enabling any smuggler to merely buy such cattle at a nominal rate and then make fresh attempts at smuggling. In the earlier report it has been already stated that the BSF has caught the same cattle being smuggled several times. The main hurdle according to the administration is the lack of effective laws to tackle this menace, in this regard there is the following suggestion to offer.
Suggested legislative measures
The issue of lack of legislation enabling the executive to check such cattle smuggling appears to be the main hurdle. The primary problem is the movement of cattle from the rest of India into Assam and West Bengal, being bordering states of Bangladesh. In this regard, it is possible to amend existing subordinate legislation under Prevention of Cruelty to Animals Act, 1960. Under this Act, rules have been framed for transport of animals and transport of animals on foot. The Transport of Animals Rules, 1978 and The Prevention of Cruelty To Animals (Transport of Animals on Foot) Rules, 2001, which provides for transport of cattle in the first legislation and all animals in the latter . There is regulation in respect of transport of diseased animal in both the rules, one relating to motorised transport and the other by foot. According to Veterinary Officer, Dhubri, usually it is unproductive cattle those above to the age of 10 -12 years or young male calves which are preferred for smuggling. It is possible to amend the rules by insertion of a new rule prohibiting / restricting the interstate transfer of cattle in respect of such specified categories. According to the Officer the age of cattle is identifiable from different physical parameters.
This issue has caught the national attention and also a source of stifle between different communities and amendment of an existing subordinate legislation will not entail much of an effort.
(v)  Vulnerable Patches
This issue has two facets, conversion of areas with an open riverine international boundary into sterile zone, coupled with an additional Battalion. It is now for the Ministry of Home Affairs to take a decision on the raising of an additional Battalion. One aspect which has been highlighted by the BSF Dhubri sector is the introduction of technical innovation by installation of radars, CCTV, unmanned Arial vehicle (UAV) in respect of which the BSF had a workshop in June, 2013 and technical measures to conduct surveillance in such open areas, for different BSF Sectors, including the Dhubri sector have been suggested. Given the scale and scope of the open riverine area, it was the suggestion of the BSF Dhubri sector that such technical innovations on international border be installed vigorously.
(vi)         Relocating Villages
i.              The communication of 26.03.2013 from the Deputy Commissioner Karimganj to the Government of Assam is instructive as it is a detailed proposal after empirical study of villages across the fence, towards the international boundary, for relocating them inside the fence and which takes into account all possible factors, including socio economic condition of families. It appears that this proposal was not acted upon by the Assam Government and this document can form a benchmark for relocating these villages.
(vii)    Plugging vulnerable patches of bridge and culvert areas [II(b) page 49].
While the proposal has been initiated and inspections undertaken timeline need to be provided towards execution and completion of the proposal. It appears that financial sanction has not yet happened for the proposals and where decision needs to be taken.
VI.       Providing Regular Electricity Connection
As far as energizing the flood lights are concerned, time lines have been provided for both Dhubri and the Silchar Sector, but the issue of uninterrupted power supply has not yet been addressed. It is suggested that the state government comes for the concrete proposals in this regard.
VII.         Increase Manpower Strength of Effective Ground Personnel (IV PAGE 50].
The operational unit of the BSF /Dhubri Sector have proposed the raising of an additional battalion, there is no intimation from the Central Government as regards this proposal, secondly, the proposal regarding raising of River Police Battalion by the Assam Government in the earlier report has not found any response from the State government. This Hon’ble Court may ascertain the views of both the governments on this issue.
VIII.       Implication of Non Lethal Policy
It is obvious that this policy is to reduce death of miscreants/ smugglers, in other words to encourage miscreants and smugglers. The issue of human rights in the context of those who illegally attempt to cross the border is incomprehensible, more so, in the context of infiltration and cattle smuggling with huge implication for national security. The Ministry of Home Affairs in the earlier round also did not respond to a query in this regard. It is suggested that this Hon’ble Court may ascertain the view of the Ministry of Home Affairs in this regard, as also the implication of following a non lethal policy.
IX.          Setting up of an independent inquiry/ investigation into the manner in which illegal migrants entrench themselves in the State, including unearthing of nexuses in this connection.
X.           Examining electoral rolls for un-natural increase and growth in population, including entry of new house-holds/ individuals into the electoral roll suddenly.
XI.          Necessity for independent inquiry and investigation into the manner in which foreigners illegally acquire citizenship and citizens rights is important as in the ongoing NRC process it will also enable and assist in the verification of the documents and citizenship of a large number of illegal migrants who are applying for citizenship.
A.   These issues being interconnected have been addressed under one head and has already been dealt with in detail in the earlier paragraphs. The recommendations / suggestions in this regard are as follows:-
I.      The primary reason for which illegal migration occurs is hunger for land, the population density of Bangladesh, subject of perennial floods is 1222 (2014) Per square kilometre and the population density of Assam is 397 (2011) as opposed to 382 per square kilometre for the rest of the country. If the migrant can be deprived of land it will be an effective deterrent to any migrant for any further migration or for existing illegal migrants to go back to Bangladesh through the porous border. It is therefore proposed as follows:-
a.    There should be a restriction in transfer of land, whether by way of sale, purchase, gift or any other such transaction or by way of allotment from government or any other agency only to those who have been citizens of India in 1951 and their descendants in 1951. The benchmark date can be the date of publication of the National Register of Citizens in Assam in 1951. In other North Eastern States land transfer is restricted only to those belonging to the State for protection from all outsiders. In Assam threat is not from Indian Citizens but from Migrants from Bangladesh.
While the existing tribal belts in Assam have restrictions on transfer of land to non tribals, excepting those non tribals who were residents in such tribal belts/ block at the time of their constitution, this protection is not available to land held by non-tribal. Even in tribal blocks/ belts the statutory protection though is conferred under the Assam Land Revenue Regulation 1886, however, under Section 162 (4) the State Government by an executive Notification can reduce, de-notify or alter the area of a tribal belt/ block. This has to be put beyond the pale of any executive interference. The only community and areas inhabited by them, for which protection is not available in the entire North East are the non tribals of Assam and Manipur and for the latter steps have already been taken.
Unlike, the other North-Eastern states which have a predominant tribal composition and protection has been accorded in various forms, in Assam it is available as already stated above only to tribal belt/ blocks. It is imperative that the same now be extended to non-tribal areas as well.
This is the only manner in which the illegal migrants can be staved off from acquiring land through all means, the favourite mode being to pose as flood and erosion affected persons from other districts with the aid and assistance of a complicit and corrupt administration.
b.    The huge influx over the years has created a huge immigrant population which competes for jobs, in government institutions with Indian citizens, without verification of the antecedents of such Non-Indians. It is therefore, necessary that for an effective deterrent for any illegal migrant and protection of the indigenous inhabitants that the same benchmark for transfer of land be adopted for provision of employment in all the three wings of the state and in government educational institution.
B.   Revealing facts disclosed in the representations, regarding the manner in which the illegal migrants entrench themselves by entering their names into the electoral rolls, taking government allotment of land, government benefits with the aid of a complicit and corrupt administration demonstrates that the nexuses in this regard require to be unravelled. The fact that 77,420 bighas of government land is admitted by the District Administration Darrang to be under encroachment, inspite of which 32 government schools have been set up in such areas, including settlement on grazing reserves explicitly prohibited under the revenue laws, the fact that inspite of having all the electoral rolls and details of all unnatural increases in population owing to illegal migration in their possession, to the extent that a Pakistani, Bangladeshi passport holder can own land and contest Assembly Election in Assam, shows that the foreigners/ illegal migrants lobby have taken deep roots in Assam. The necessity therefore, for an independent investigation and in enquiry into these nexuses and all the facts in this regard, cannot be overstated.
It is only after unearthing the nexuses and the relevant facts in this connection that this Hon’ble Court will be enabled to pass correct and appropriate orders. Furthermore, the unearthing of such nexuses and concomitant facts, will be a valuable guide to laying down the procedure for verification of the antecedents of those who have applied to be included in the National Register of Citizens as also clearing lands under encroachment.
It is therefore suggested that this Hon’ble Court may consider setting up of a high powered inquiry, to constitute a Committee/ Investigating team to enquire into the above issues.
C.   Allotments of Government land, grazing reserves, forest land since 1971, particularly to those who are shown to be erosion and flood affected persons not belonging to the area, needs to be inquired and investigated.
D.   For verification of ancestry, more so in the case of large number of persons tracing their ancestry to pre 1971 “eligible parent”, it is suggested that the DNA testing be undertaken for such verification. As already stated by the state coordinator, NRC, DNA testing had been proposed earlier by him and rejected by the Central Government in 2013. The present procedure that they proposed to adopt, which is by confronting the actual descendants of the “eligible parent”, with the claimants is not full proof like the scientific test as it is possible for the actual descendants to charge a premium for falsely certifying the claimants.
NRC VERIFICATION PROCESS
E.   The representation from Mr. Pradip Bhuyan has set out a modality for investigation, to stringently screen post-1971 Bangladeshi foreigners “who are applying, masquerading as Indians.” What he has proposed in short is a residential family history relating back to 1970, i.e. where has the applicant / father / grand-father resided in the last 45 years. This residential family history is easily verifiable from the village censuses, particularly of 1971 and documents already notified. Mr. Bhuyan in his representation has set out the modality proposed by him, which he says is entirely in consonance with the procedure laid out for verification. This approach seems to be logical.
Unlike the rest of India, where the National Population Register updated will include citizens only, in Assam it is a hybrid process because apart from identifying citizens it is also directed at sifting citizens from non citizens, given the huge number of illegal migrants. The verification process, when both the process of identifying citizens and sifting out the non citizens have been clubbed together, verification procedures have to be stringent, including verifying and ascertaining the bona fides of all those who are deputed for this task.
15 EXPENSES
This Hon’ble Court while directing the appointment of the Commissioner by order of 13.05.2015 had granted a sum of Rs. 5,00,000/- for execution of the Commission. This Hon’ble Court having conferred me with the privilege of executing this Commission, I had taken only actual expenses incurred and returned a sum of Rs. 2,81,380/- to the Central Government (Page 8 of report dated 29.06.2015). In the present round of inspection / meetings a sum of Rs 96,000/- towards expense have been incurred. Details of expenses furnished is annexed as Annexure “R”.
                                                               Upamanyu Hazarika
                                                                                       Senior Advocate
                                       Supreme Court Commissioner
Date : 04.10.2015
ANNEXURE R
DETAILS OF ACTUAL EXPENSES INCURRED
SR.NO
PARTICULARS
AMOUNT
(In Rs.)
1
Air Tickets from Delhi to Guwahati and
Return tickets from Guwahati to Delhi
28,000.00
2
Air Tickets from Guwahati to Silchar and back
for self and camera person
16,000.00
3
Charges for camera person for 3½ days and related charges for storage media.
20,000.00

4
Charges for car hire (car travel to the sectors was taken care by the BSF).
5,000.00
5
Typing charges.
15,000.00
6
Photocopy charges
12,000.00

Total
96,000.00

SUPPLEMENTARY REPORT IN TERMS OF ORDER
DATED 14.07.2015 BY THIS HON’BLE COURT

MOST RESPECTFULLY SHEWETH:
Pursuant to order dated 14.07.2015, report has been filed before this Hon’ble Court on 05.10.2015, which report was taken up for consideration by this Hon’ble Court on 06.10.2015.  After the filing of the report, response was received from the Government of Assam on the issues raised in the said report on 14.10.2015 by e-mail, attaching a response dated 05.10.2015 of the Commissioner and Secretary, Home and Political Department, Government of Assam.  Furthermore, representations have been received from some lawyers from the Guwahati High Court as well as other organizations and inform from Members of the Foreigners Tribunal on certain issues, requesting that they be placed before this Hon’ble Court.  Various responses / representations are as follows:
A.   Response dated 05.10.2015 from the Government of Assam, received on 14.10.2015.  Eleven issues arose out of the first two reports dated 05.06.2015 and 20.06.2015 were outlined in communication dated 11.08.2015 addressed to both the Central and State Governments by letter dated 11.08.2015.  The eleven issues are already set out in pages 2 and 3 of the report dated 05.10.2015 and the letter dated 11.08.2015 is available at page 62 of the said report. Copy of the response dated 05.10.2015 from the Government of Assam is enclosed herewith and marked as Annexure-1. The response of the Government of Assam on the various heads is set out hereinbelow, in respect of each recommendation.
(i)            Issue -  Demarcating/ identifying a particular stretch from the international boundary into a sterile zone in the riverine area, provision of identity cards to villagers in this area.
Response - The decision on demarcating/ identifying a particular stretch from international boundary with Bangladesh into a sterile zone in the reverine areas is a matter under the Union Government.  The villagers in the border areas are already having photo identity cards issued by the Election Commission of India.  However, more dependable identity cards could be issued after the ongoing updation of National Register of Citizens is completed with the intiative of the Government of India.
(ii)          Issue - Shifting of cattle haats 20 kms. away from international border.
Response - Regarding shifting of cattle haats 20 KMs from the international border, the Deputy Commissioner, Dhubri has already taken steps to shift these haats to 8 KMs from the international border and the matter has been taken up now with the concerned local bodies to shift these haats to 20 KMs from the international border.  In Karimganj district, there are no such big cattle haats within 20 KMs from the international border.
(iii)         Issue - Addressing vulnerable patches in areas where international boundary runs through middle of the river / or takes  a zigzag route.
Response- Addressing the vulnerable patches in areas where international boundary runs through middle of the river/ or takes a zigzag route is a subject matter of the Union Government.
(iv)         Issue - Relocating villagers across fenced areas and closing the gates.
Response- The viability of relocating the villagers across the border will be explored in discussion with the Government of India.  The Deputy Commissioners of the bordering districts are undertaking preliminary assessment on people living across the international border fencing.
(v)          Issue - Plugging vulnerable patches of bridge and culvert areas.
Response-Plugging vulnerable patches of bridge and culvert areas is being taken up by the PWD, Assam and will be completed within this working season.
(vi)         Issue - Providing regular electricity connection to flood lights and ensuring uninterrupted power supply.  Giving priority to border roads and flood lights.
Response- For providing regular electricity connection to the floodlights and ensuring uninterrupted power supply, the Assam Power Distribution Company Limited has been asked to expedite the ongoing works and they have submitted a report with timeline to complete the project.  Copies of report are attached.
(vii)        Issue - Increasing manpower strength of effective ground personnel.
Response- Increasing manpower strength of effective ground personnel is a subject matter of the Union Government.
(viii)      Issue - Implication of non lethal policy.
Response- Implication of non lethal policy is a matter under Union Government.
(ix)         Issue - Setting up of an independent inquiry / investigation into the manner in which illegal migrants entrench themselves in the State, including unearthing of nexuses in this connection.

Response- Regarding setting up of an inquiry/ investigation on illegal migrants:  No comment.
(x)          Issue - Examining electoral rolls for un-natural increase and growth in population, including entry of new house-holds / individuals into the electoral roll suddenly.
Response-Regarding examining the electoral rolls for unnatural increase and growth in population, including entry of new households/ individuals into the electoral roll suddenly, the matter is being taken up with the Election Commission of India.
(xi)         Issue - Necessity for independent inquiry and investigation into the manner in which foreigners illegally acquire citizenship and citizens rights is important as in the ongoing NRC process it will also enable and assist in the verification of the documents and citizenship of a large number of illegal migrants who are applying for citizenship.
Response- Regarding setting up of any independent inquiry and investigation into the manner in which foreigners illegally acquire citizenship is a matter under Union Government of India.
OBSERVATIONS:
(a)          The stand of the Government of Assam, overall is that all the issues are the primary concern of the Central Government barring the provision of regular electricity connection, it is with this caveat that responses to queries are furnished by and large the responses are in line with what was conveyed during discussion with District Administrations of Dhubri, Karimganj and Silchar and it is the new and additional responses which are being dealt with in the subsequent paragraphs.
(b)          As regards the recommendation regarding relocation of all villages who either live or have land across the fencing areas towards the international boundary and thereby close the large number of gates on the international fencing, the answer is very carefully worded.  The response says that “the viability of relocating the villagers across the border will be explored in discussion with the Government of India”, though it is thereafter said that the concerned Deputy Commissioners “are undertaking preliminary assessment on people living across the international border fencing”.  The State Government therefore does not appear to have taken any decision on this issue. 
(b) As far as provision of regular electricity connection is concerned timelines have been provided for completion of work in both the sectors, which reports have already been furnished alongwith the earlier report of 05.10.2015. But nothing has been said about uninterrupted power supply, infrequent power supply in these areas is the norm, rather than the exception and for border floodlights, uninterrupted power supply is a necessity. 
(c)          Interestingly, on one of the fundamental issues regarding Issue No. (ix) for setting up of an independent inquiry / investigation into the manner in which illegal migrants entrench themselves in the State, including unearthing of nexuses in this connection the response is a simple “No comment”.  Considering that factual data in terms of overall demographic change furnished in the representation enclosed with the earlier report shows proliferation  of  a large number of “non- Indians” to borrow a description from the respondents own official communications regarding encroachers, this response is surprising.
(d)          As regards issue No. (x) relating to Examining electoral rolls for un-natural increase and growth in population, including entry of new house-holds / individuals into the electoral roll suddenly, the response only says that “the matter is being taken up with the Election Commission of India”.
The State Government has not disclosed as to the manner in which the matter has been taken up with the Election Commission regarding un-natural increase in voters.  Any sincere attempt in this regard would require taking the pre 24.03.1971 electoral rolls as the basis for any polling station and thereafter examination on a year to year basis as to the additions in terms of new households or sudden inclusion of someone far beyond the qualifying age to be a voter as a member of the household.  It is important to note that increasing voters in urban polling centres is attributable to rural urban migrant a regular phenomenon in this country.  But increase in voter by addition of new household / or suspicious new “family members” of the same household in rural areas will be a ground for investigation as to the antecedent of the nationality of such new voters.
The State Government therefore needs to be more explicit as to the manner it is taking up the issue with the Election Commission. 
In the earlier report of 05.10.2015 representation made by Shri Indrajit Barua has enclosed study carried out in respect of some polling stations in Boko Legislative Assembly Constituency for the period 1971 to 1997, where a periodic analysis of electoral rolls for a polling station have shown increase in the range of 80% to 2135% in the number of new entrants into the electoral rolls.  Considering that entry of a new household entered in electoral rolls after 24.03.1971 or a new voter far beyond the qualifying age into an existing household will raise doubts about their nationality, focus should therefore be laid on such new entrants while investigating the nationality.
To take an illustration, if a household is shown as having entered into the rolls for the first time in 1985 and it is not there in 1980 the previous electoral roll, then its absence  itself raises doubt about the nationality of the members of this household. Furthermore, if an elderly member of the household suddenly makes an appearance in the electoral roll at the age of 30 and above, this itself will raise doubts about the nationality.
(e)  As regards Issue No. (xi) regarding necessity for independent inquiry and investigation into the manner in which foreigners illegally acquire citizenship and citizens rights is important as in the ongoing NRC process it will also enable and assist in the verification of the documents and citizenship of a large number of illegal migrants who are applying for citizenship.  In response the Government of Assam is very categorical in saying that “the manner in which foreigners illegally acquire citizenship is a matter under Union Government of India”.
It is, therefore, now for the Central Government to respond as to whether it has taken any decision regarding setting up of an independent inquiry and investigation into the manner in which foreigners illegally acquire citizenship.
I have said in the earlier report that this investigation/ inquiry is necessary because it will provide a valuable guide towards the verification of citizenship under ongoing updating of the National Register of Citizens.
Considering the fact that the entire population of Assam has by and large applied for inclusion in the National Register of Citizens, which will include a large number of foreign nationals, the result of this exercise will prove valuable guide for shifting citizens from foreigners.
B.   Representation from two practising Advocates of Guwahati High Court
Mrinmoy Khataniar, Rinku Hazarika two practicing advocates of the Guwahati High Court have made a representation dated 28.10.2015 to be placed before this Hon’ble  Court in respect of a direction given by this Hon’ble Court in Sarbananda Sonowal vs. Union of India (2005) 5 SCC 665, which has not been complied with. There are two aspects highlighted in the representation, firstly, the direction by this Hon’ble Court relating to scrutiny of complaints regarding complaints under the Foreigners Act and rejection of such complaints without reference to adjudication was illegal and the complaints rejected by the Screening Committee, were directed to be proceeded a fresh. According to the representation this direction has not been complied with and around 2,82,000 persons against whom complaints have been made, but rejected by the Screening Committee have been let off. Secondly, there is no mechanism in place by the Government of Assam through which orders rejecting complaints by the Foreigners Tribunal can be scrutinized for the purposes of challenging the same. If a complaint is dismissed, there is no mechanism or process by which the State Government challenges the order of the Foreigners Tribunal.
Firstly, under the IMDT Act  regime, a Screening Committee had been set up to screen complaints made against suspected foreigners on which  wide power of rejecting complaints was vested, against which no appeal lies, referred to in paragraph 47 of the said judgment, extracted in the representation.   In paragraph 5 of the judgment reference has been made to the counter affidavit of the Central Government from where it could be noticed that out of 3,62,592 complaints  inquiries referred to the Screening Committee, only 76,228 were referred to the Tribunal constituted under the IMDT Act, a large number of inquiries were rejected by the Screening Committee in excess of 2.5 lakh i.e. 2,86,364 inquiries  rejected by the Screening Committee.
This Hon’ble Court in paragraph 83 held the very constitution of the Screening Committee to be illegal with the categorical finding  that “the Screening Committee had no authority or jurisdiction to reject any proceeding against any alleged illegal migrant, the order of rejection passed by such authorities are declared to be void and non est  in the eye of law.  It will be open to the authorities of the Central Government or the State Government to initiate fresh proceedings against all such persons whose cases were not referred to the Tribunal constituted under “The (Illegal Migrant  Determination by Tribunal)  Act, 1983 by the competent authority whether on account of the recommendation of the Screening Committee or any other reason whatsoever”. 
This has been followed up by a direction at paragraph 84 in the following terms:
“(4)  it will be open to the authorities to initiate fresh proceedings under the Foreigners Act` against all such persons whose cases were not referred  to the Tribunals by the competent authority whether on account of the recommendation of the Screening Committee or any other reason whatsoever”.
These complaints relating to 2,86, 364 enquiries have therefore not been proceeded and the Assam Government should therefore respond to this aspect.
The representation has highlighted yet another important aspect regarding the functioning of the present Tribunal namely there is no mechanism in place by the State Government to decide whether to challenge against any order of rejection of the complaint.  The relevant extract from the representation is extracted herein below:
Initially 36 Tribunals under the Foreigners (Tribunals) Order, 1964 framed under the Foreigners Act, 1946 were functioning.  Considering the enormity of the problem the number of Tribunals were found to be wholly inadequate.  Following the intervention of the Hon’ble Supreme Court, the number of such Tribunals have been increased to 100.  Now 100 Tribunals are functioning.  Against orders of the Tribunal holding the proceedee to be a foreigner, the declared foreigner approaches the High Court under Articles 226/ 227 of the Constitution.  However, against decisions of the Tribunals answering the reference against the State by holding the proceedee not to be a foreigner, there is no procedure in place at the Government level to scrutinize such decisions and to challenge such decisions if considered necessary before the High Court.  To the best of our knowledge and information there is no such mechanism put in place by the State Government.  We have reasons to believe that in many places particularly in the border districts references are mostly answered against the State by holding the proceedee not to be foreigner.  Since these orders are not put to challenge before any higher forum, such orders attain finality.  We are of the firm opinion that all such decisions of the Tribunals were the references are answered against the State should be scrutinized by having a formal procedure in place and such of those decisions which are found to be questionable should be challenged in the High Court”. 
Copy of the representation dated 28.10.2015 is enclosed herewith and marked as Annexure - 2.
OBSERVATIONS
(a)  The above two aspects, firstly, the fact that the direction in Sarbananda Sonowal to initiate fresh proceedings in respect of inquiries rejected by the Screening Committee under the IMDT Act which were required to be proceeded afresh and which does not appear to have been done calls for a response from the State Government.
(b)  Secondly, the necessity of reviewing the decision of Foreigners Tribunal by an institution alleged mechanism also needs to be put into place. 
C.     Representation from the Jatiya Nagrik Manch dated 28.10.2015 – this organisation is  based in Mangaldoi District headquarters of Darrang District who have made a representation against the action of the Deputy Commissioner of Darrang District in respect of decision taken in 04.10.2013 by the said Officer.  According to the representation, by communication of 04.10.2013 the Deputy Commissioner of Darrang District had written to the Deputy Commissioner of the neighbouring district Morigaon saying that 260 “erosion effected families of Mangaldoi Revenue Circle” are residing in Morigaon and he wanted to settle them in his District on vacant Government land in his own district and sought the assistance of the Officer of the neighbouring district in settling such families to avoid resistance by the locals.
According to the representation there was no proof that these families belong to the District and the said Officer has participated in the “network to settle foreign nationals”.  Photographs have also been enclosed alongwith the representation.
OBSERVATION
This representation is based on a letter of the Deputy Commissioner, wherein 260 families are settled in a particular area i.e. in Hilaikhunda under Mangaldai Revenue Circle, Darrang District which is government land saying that such persons are erosion affected and also their settlement is likely to create resistance from locals. The antecedents of these families need to be verified in terms of their nationality but the fact is that an entirely new set of people are introduced by the government amongst indigenous people and the very fact that security is required to forcibly settle them, shows and demonstrates that there is a likelihood of local resistance, as also displacing indigenous communities from their habitat. 
D.     Judgments of the Hon’ble Guwahati High Court - Fake Certificates and nexuses
There are quite a few judgments of the Hon’ble Guwahati High Court in respect of fake certificates procured by foreigners and official nexuses in this regard, a few of which are given below:
(1)  Judgment dated 05.10.2015 passed in W.P. (C) No. 5094 of 2012 Md. Fazar Ali Vs. The Union of India & Ors. - in this matter the issue was regarding the authenticity of Birth Certificate dated 11.01.2011, certifying the alleged foreigner to have been born on 08.01.1965 in Morigaon District (Para 5 & 6). Upon enquiry being directed, the enquiry disclosed that no such certificate was issued as per the instructions of the Deputy Commissioner, which is the prescribed procedure (Para 7,8 & 9).  Even though the Deputy Commissioner’s recommendation was not obtained as is the procedure prescribed, nevertheless it was issued by the Registrar, Births & Deaths. However, the original documents were strangely misplaced when called for. The Hon’ble Court further observed that it was only one in several cases of fake and forged documents as enquiry had been directed earlier in respect of Dhubri and Nagaon District in other matters. The relevant extract at Para 9 & 10 reads as follows:-
“9……once it is established that there was no recommendation from the Office of the Deputy Commissioner for issuance of the birth certificate, such a certificate could not have been issued by the Laharighat PHC. Strangely enough, the Registrar of Birth & Death, Laharighat PHC has stated that the documents relating to issuance of such certificate has been misplaced during the shifting of the Office. According to his report allegedly made to the Officer-in-Charge, Laharighat Police Station, the documents missing are births and deaths registrars of 2011, 2012, 2013 and 2014; counterfoils of certificates; order of the Deputy Commissioner for issuing such certificates; application forms; reports etc. A simple report was shown furnish on 26th August, 2014 to the Laharighat Police Station intimating about misplacing the aforesaid records.
10. It is not the case of the Laharighat PHC that the documents have been stolen. The report of the Superintendent of Police (B), Morigaon dated 5th October, 2015 contains the note dated 4th October, 2015 of the Sub-Inspector (B), Laharighat Police Station. IN his report, he has expressed his surprise as to why only the aforesaid documents have been misplaced and not any other documents including costly items like computer; hospital material etc. This would enquire a thorough enquiry of the Superintendent of Police (B), Morigaon to unearth the racket of issuing the fake birth and death certificates to help the illegal migrants. It will not be out of place to mention here that earlier also the Court unearthed a racket of issuance of fake certificates by Dharamtul SHC. Another racket of issuance of forged birth certificates was also unearthed in respect of Gazarikandi PHC of Dhubri district. In this connection, the orders passed in WP (C) No.2306 / 2014 and WP (C) No.3660/205 may be referred to.”
(2)  Order dated 25.08.2015 passed in W.P. (C) No. 3660/ 2015  - in this matter the Hon’ble High Court was again seized of the issue relating to fake birth and death certificates and expressed anguish at the fact that not only was the Petitioner who is a foreigner not apprehended but even the concerned government servant was let off lightly and at the apathy of the administration. The relevant extract from the said order reads as follows:
“As recorded in the orders passed in this proceeding, more particularly, in the order dated 29.07.2015, the petitioner has taken recourse to falsehood and forgery in placing reliance on the Annexure-5 Birth Certificate dated 30.01.2012. In that view of the matter, the respondents were directed to apprehend the petitioner. It was also directed that the authorities, namely, the Director General of Police Assam and the Commissioner and Secretary, Home and Political Department, Govt. of Assam should apprise the Court about their action plan in such a serious matter.
As indicated in the said order, the accused persons including Shri Anowar Hussain, UDA, SDCH, Hatsingimari, son of Late Amir Hamja Mandal. As per the written instructions furnished, the Joint Director of Health Services, only ordered for shifting of the table of Anowar Hussain.……
In fact, both the authorities were directed to apprise the Court about their action plan in the matter including the action taken in respect of the accused persons mentioned in the order dated 29.07.2015. However, there is no response from the said two authorities except the letter dated 11.08.2015 addressed to Mr. G.J. Ghosh, State Counsel by the ADGP (A), Assam, expressing helplessness in the matter. There is also no indication in the letter as to how the administration has proposed to arrest the menace of issuance of fake birth and death certificates.
It may not be out of place to mention here that today, in the case of Sirajul Hoque vs. State of Assam and others (WP (C) No.2306/ 2014, the Deputy Commissioner, Morigaon has furnished report regarding submission of forged letter dated 23.11.2013 showing to be from the office of the Additional Deputy Commissioner, Morigaon. It appears that the said respondents are not at all interested to apprehend the culprits engaged in such a racket.”
(3)  In the Judgment and Order dated 18.09.2015 passed in W.P. (C) No.2306 of 2014 titled Md. Sirajul Hoque @ Sirajul Islam & Ors. Vs. The Union of India & Ors. - In this matter the Petitioners sought setting aside of an ex-parte order by furnishing a copy of the death certificate of the mother as well as a medical certificate of some relative, they being grounds for non appearance. Initially, when the Court doubted the genuineness of these two certificates, written instructions furnished to the government counsel asserted the genuineness of these documents. On a direction for further enquiry by the Hon’ble Court, it was revealed that both these documents were forged. The relevant extract from the said order reads as follows:
“12. In the present proceeding before this Court, a doubt arose in respect of issuance of Annexure-24 Death Certificate dated 08/12/2013 and so also the Annexure-25 Medical Certificate. The learned Standing Counsel, Health Department was directed to apprise the Court as to the veracity or otherwise of the said two certificates. The matter was further taken up on 13/08/2015 and on the basis of the written instructions furnished to the learned Standing Counsel, Health, it was submitted that the Annexure-24 and Annexure-25 certificates were genuine. Along with the written instruction dated 10/08/2015, the purported recommendation of the Additional Deputy Commissioner, Morigaon vide order dated 25/11/2013, for issuance of the Anenxure-24 Death Certificate was also enclosed.
13. When a doubt arose in respect of the said order dated 25/11/2013 issued by the Additional Deputy Commissioner, Morigaon, further direction was issued to obtain instruction from the Deputy Commissioner, Morigaon. The matter was again taken up on 25/08/2013 and Mr. Noor Mohammad, learned State Counsel produced the letter dated 21/08/2015 addressed to him by the Deputy Commissioner certifying that the purported letter of the Additional Deputy Commissioner dated 25/11/2013 was never issued from the office of the Deputy Commissioner. Situated thus, Dr. Niranjan Konwar, Medical and Health Officer-I, in-charge, Dharamtul SHC was directed to appear in person along with entire records pertaining to Annexure-24 Death Certificate dated 08/12/2013 including the original copy of the order dated 25/11/2013. He appeared on 08/09/2015. Prior to that the Deputy Commissioner was directed to cause an enquiry vide order dated 25/08/2015.
14.       Today, Mr. Noor Mohammad, learned State Counsel has produced the copy of the enquiry report dated 14/09/2015 forwarded to him by the Deputy Commissioner, Morigaon vide his letter dated 16/09/2015. The enquiry report has revealed that the aforesaid purported order dated 15/11/2013 of the Additional Deputy Commissioner, Morigaon is a fake one. Although, Mr. A. Matin, learned counsel for the petitioners has submitted that the petitioners are not responsible towards issuance of the fake order of the Additional Deputy Commissioner, but as recorded in the earlier order dated 08/09/2015, they being beneficiary of the Annexure-24 Death Certificate which was issued on the basis of a fake order, they cannot shirk-off their responsibility by simply saying that the task of obtaining the said certificate was entrusted to a third party.”
(4)  Judgment dated 10.08.2015 Passed in   W.P. (C) No. 5048 of 2009 - This matter relates to a Writ Petition filed by the Petitioner who was declared as a foreigner in 2007, deported to Bangladesh and thereafter returned again to file a Writ Petition in November 2009, when affidavits were directed to be filed by the Chief Secretary and the Home Secretary as to the manner in which a deported foreigner could return and file a Writ Petition and the matter was not listed for 6 years  which has been noted by the Hon’ble Court in its order dated 10.08.2015.  The relevant extract of the said order reads as follows: 
“When the matter was last taken up on 20th November, 2009, the following order was passed:-        
“It appears from the averments made in the writ petition that in view of the judgment and order dated 15-11-2007 passed by the learned Foreigners' Tribunal in FT Case No.9/2007, the petitioner was deported along with his family to Bangladesh. The petitioner, however, claims to have returned to India and filed the present writ petition. If such allegations are correct, it makes a serious reflection on the Union of India as well as the State of Assam as the border is not at all protected and the persons are allowed to enter into India without even a valid permit and even though the person has been declared as foreigner and was deported to Bangladesh.
In view of the aforesaid position, the Chief Secretary to the Government of Assam and the Home Secretary to the Government of India are directed to file affidavits in this matter, for which 2 (two) weeks time is granted. 
List the case for motion hearing on 4th December, 2009.
A copy of this order be furnished to the learned Assistant Solicitor General of India, the learned Sr. Government Advocate, Assam and the learned Central Government Counsel.”
(5)  Judgment dated 27.08.2015 Passed in   W.P. (C) No. 2979 of 2011- This matter relates to yet another aspect of the functioning of Foreigners Tribunal, where ex-parte order was challenged on the ground that notice issued to the Petitioner before the High Court was on the allegation that he was a foreigner in the 1966 to 1971 stream, which category in terms of the Assam accord are required to register themselves with the authorities and granted citizenship subsequently. It was noticed by the Hon’ble Court that whereas the reference made to the Tribunal was suspecting him to be a foreigner of post 25 March 1971, however, the notice issued by the Foreigners Tribunal was on the wrong format, which had been the experience of the Hon’ble Court earlier. The relevant extract of the said order reads as under:-
“Before parting with the case record, it is placed on record that it has been the experience of this Court in some cases that the Tribunals unmindful of the fact that the proceedee is suspected to be a foreigner of post 25th March, 1971 stream, issue notice in the prescribed format indicating that the proceedee is suspected to be a foreigner within the stream of 1st January, 1966 to 25th March, 1971.  In absence of the prescribed format for the suspected foreigners of post 25th March, 1971, the Tribunal while using the format pertaining to the foreigners of 1st January, 1966 to 25th March, 1971 should make necessary correction.”
OBSERVATIONS AND SUGGESTIONS:
1.    It is obvious and apparent from the above judgments that there is a large scale racket in procurement of fake certificates and which is carried out with the aid and connivance of government personnel. In fact, most of the times as recorded in the judgments the forgery could not be detected immediately and further enquiries were directed. In one case,  W.P. (C) No.2306 of 2014 titled Md. Sirajul Hoque @ Sirajul Islam & Ors. Vs. The Union of India & Ors.” mentioned at Sr. No.3 above, the official instructions conveyed to the Government counsel were that the certificates in question were genuine. It is only upon the Hon’ble Court persisting and calling for the personal presence of officers that it was admitted by the Government that the certificates in question were fake. The Hon’ble Court has also noted with anguish in order dated 25.08.2015 passed in W.P. (C) No. 3660/ 2015  at Serial No.2 above that the government officials were not interested in arresting the culprits and in fact the only action taken in respect of one such government functionary was to change his desk.  
2.    This fake certification with the active connivance of Government personnel has significant implications while carrying out verification of Applicants while updating the National Register of Citizens and this aspect therefore, has to be accounted for while evolving verification procedures. 
E.     Representation has been received from Sangrami Satirtha Sammelan dated 25.10.2015: In furtherance of their earlier representation referred to in page 22 of report dated 05.10.2015 and enclosed at pages 135 to 202 of the said report.  This representation is by way of furnishing additional information in respect of the land encroached in Sipajhar Revenue Circle of 77,420 bighas (26,000 acres) where information has been furnished regarding list of polling stations in 1985 and list of polling station in 2014.  As stated therein, there were no polling stations in the encroached area of 26,000 meters in 1985 in the electoral rolls of that year, whereas there were 11 polling stations with over 15000 voters in these areas in 2014. Furthermore, a large number of residents in this area also vote in pre-existing polling stations. According to the representation 11 polling stations  with further 15,000 voters are available in this land under encroachment.  A large number of inhabitants in the encroached area also vote in neighbouring areas.  Furthermore, there is also ancient Shiva temple in this area which is under encroachment.
OBSERVATION
The representation by this organization has been dealt with in length in the earlier report, they have adduced further proof that settlement in the encroached area of 77,420 bighas (26000 acres) is of recent origin as no polling stations on this area are available in the electoral rolls on 1985, whereas there are eleven such polling stations in 2014 electoral rolls. 
SUMMARIZED OBSERVATIONS AND SUGGESTIONS
Observations and suggestions have already been made under the respective response/ representation which are summarised herein below at one place under the respective heads, for the sake of convenience. 
A.   Response of Assam Government received on 14.10.2015.
(a)  The stand of the Government of Assam, overall is that all the issues are the primary concern of the Central Government barring the provision of regular electricity connection, it is with this caveat that responses to queries are furnished by and large the responses are in line with what was conveyed during discussion with District Administrations of Dhubri, Karimganj and Silchar and it is the new and additional responses which are being dealt with in the subsequent paragraphs.
(b)  As regards the recommendation regarding relocation of all villages who either live or have land across the fencing areas towards the international boundary and thereby close the large number of gates on the international fencing, the answer is very carefully worded.  The response says that “the viability of relocating the villagers across the border will be explored in discussion with the Government of India”, though it is thereafter said that the concerned Deputy Commissioners “are undertaking preliminary assessment on people living across the international border fencing”.  The State Government therefore does not appear to have taken any decision on this issue. 

As far as provision of regular electricity connection is concerned timelines have been provided for completion of work in both the sectors, which reports have already been furnished alongwith the earlier report of 05.10.2015. But nothing has been said about uninterrupted power supply, infrequent power supply in these areas is the norm, rather than the exception and for border floodlights, uninterrupted power supply is a necessity. 
(c)  Interestingly, on one of the fundamental issues regarding Issue No. (ix) for setting up of an independent inquiry / investigation into the manner in which illegal migrants entrench themselves in the State, including unearthing of nexuses in this connection the response is a simple “No comment”.  Considering that factual data in terms of overall demographic change furnished in the representation enclosed with the earlier report shows proliferation  of  a large number of “non- Indians” to borrow a description from the respondents own official communications regarding encroachers, this response is surprising.
(d)  As regards issue No. (x) relating to Examining electoral rolls for un-natural increase and growth in population, including entry of new house-holds / individuals into the electoral roll suddenly, the response only says that “the matter is being taken up with the Election Commission of India”.
The State Government has not disclosed as to the manner in which the matter has been taken up with the Election Commission regarding un-natural increase in voters.  Any sincere attempt in this regard would require taking the pre 24.03.1971 electoral rolls as the basis for any polling station and thereafter examination on a year to year basis as to the additions in terms of new households or sudden inclusion of someone far beyond the qualifying age to be a voter as a member of the household.  It is important to note that increasing voters in urban polling centres is attributable to rural urban migrant a regular phenomenon in this country.  But increase in voter by addition of new household / or suspicious new “family members” of the same household in rural areas will be a ground for investigation as to the antecedent of the nationality of such new voters.
The State Government therefore needs to be more explicit as to the manner it is taking up the issue with the Election Commission. 
In the earlier report of 05.10.2015 representation made by Shri Indrajit Barua has enclosed study carried out in respect of some polling stations in Boko Legislative Assembly Constituency for the period 1971 to 1997, where a periodic analysis of electoral rolls for a polling station have shown increase in the range of 80% to 2135% in the number of new entrants into the electoral rolls.  Considering that entry of a new household entered in electoral rolls after 24.03.1971 or a new voter far beyond the qualifying age into an existing household will raise doubts about their nationality, focus should therefore be laid on such new entrants while investigating the nationality.
To take an illustration, if a household is shown as having entered into the rolls for the first time in 1985 and it is not there in 1980 the previous electoral roll, then its absence  itself raises doubt about the nationality of the members of this household. Furthermore, if an elderly member of the household suddenly makes an appearance in the electoral roll at the age of 30 and above, this itself will raise doubts about the nationality.
(e)  As regards Issue No. (xi) regarding necessity for independent inquiry and investigation into the manner in which foreigners illegally acquire citizenship and citizens rights is important as in the ongoing NRC process it will also enable and assist in the verification of the documents and citizenship of a large number of illegal migrants who are applying for citizenship.  In response the Government of Assam is very categorical in saying that “the manner in which foreigners illegally acquire citizenship is a matter under Union Government of India”.
It is, therefore, now for the Central Government to respond as to whether it has taken any decision regarding setting up of an independent inquiry and investigation into the manner in which foreigners illegally acquire citizenship.
I have said in the earlier report that this investigation/ inquiry is necessary because it will provide a valuable guide towards the verification of citizenship under ongoing updating of the National Register of Citizens.
Considering the fact that the entire population of Assam has by and large applied for inclusion in the National Register of Citizens, which will include a large number of foreign nationals, the result of this exercise will prove valuable guide for shifting citizens from foreigners.
B.   Representation from two practising Advocates of Guwahati High Court
(a)  The above two aspects, firstly, the fact that the direction in Sarbananda Sonowal to initiate fresh proceedings in respect of inquiries rejected by the Screening Committee under the IMDT Act which were required to be proceeded afresh and which does not appear to have been done calls for a response from the State Government.

(b)  Secondly, the necessity of reviewing the decision of Foreigners Tribunal by an institution alleged mechanism also needs to be put into place. 
C.   Representation from the Jatiya Nagrik Manch dated 28.10.2015
This representation is based on a letter of the Deputy Commissioner, wherein 260 families are settled in a particular area i.e. in Hilaikhunda under Mangaldai Revenue Circle, Darrang District which is government land saying that such persons are erosion affected and also their settlement is likely to create resistance from locals. The antecedents of these families need to be verified in terms of their nationality but the fact is that an entirely new set of people are introduced by the government amongst indigenous people and the very fact that security is required to forcibly settle them, shows and demonstrates that there is a likelihood of local resistance, as also displacing indigenous communities from their habitat. 
D.   Judgments of the Hon’ble Guwahati High Court - Fake Certificates and nexuses
(a)  It is obvious and apparent from the above judgments that there is a large scale racket in procurement of fake certificates and which is carried out with the aid and connivance of government personnel. In fact, most of the times as recorded in the judgments the forgery could not be detected immediately and further enquiries were directed. In one case,  W.P. (C) No.2306 of 2014 titled Md. Sirajul Hoque @ Sirajul Islam & Ors. Vs. The Union of India & Ors.” mentioned at Sr. No.3 above, the official instructions conveyed to the Government counsel were that the certificates in question were genuine. It is only upon the Hon’ble Court persisting and calling for the personal presence of officers that it was admitted by the Government that the certificates in question were fake. The Hon’ble Court has also noted with anguish in order dated 25.08.2015 passed in W.P. (C) No. 3660/ 2015  at Serial No.2 above that the government officials were not interested in arresting the culprits and in fact the only action taken in respect of one such government functionary was to change his desk.    
(b)  This fake certification with the active connivance of Government personnel has significant implications while carrying out verification of Applicants while updating the National Register of Citizens and this aspect therefore, has to be accounted for while evolving verification procedures. 
E.   Representation has been received from Sangrami Satirtha Sammelan dated 25.10.2015:
The representation by this organization has been dealt with in length in the earlier report, they have adduced further proof that settlement in the encroached area of 77,420 bighas (26000 acres) is of recent origin as no polling stations on this area are available in the electoral rolls on 1985, whereas there are eleven such polling stations in 2014 electoral rolls. 
The report is submitted accordingly.
(Upmanyu Hazarika )
Senior Advocate
Supreme Court Commissioner 
Date: 04.11.2015
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No. 562 of 2012
(Under Article 32 of the Constitution of India)



IN THE MATTER OF:

Assam Sanmilita Mahasangha & Ors. Etc.     ….Petitioners

                                          Versus

Union of India & Ors.                               ….Respondents