(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
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