Tuesday, January 18, 2022

When Nagaland becomes a news, and this isn’t, India has an existential threat

(NorthEast is in news and this time it’s Nagaland. There is another issue which is haunting NorthEast but if you listen to what noted lawyer J Sai Deepak, it’s gnawing at entire India. Bhumika Arora has taken time out to transcribe his speech which could be viewed here. It’s a heavily abridged version below to make it reader friendly. Over to J Sai Deepak. )

We want deportation of illegal migrants from Bangladesh from all over India and not just NorthEast. So we are hoping the Supreme Court would set up foreigners tribunals not just in the NorthEast in the state of Assam but across the country…There were three landmark judgments of the Supreme Court in 2005, 2006 and 2014, specifically documenting the effect and impact of influx of the Bangladeshi Muslims, from Bangladesh into Assam. 

First deal with the perception of the topic itself. Anybody who holds a point of view, which doesn’t resonate with the one of Media or the Left establishment, is necessarily on the wrong side of history, is on the wrong side of compassion and is on the wrong side of humanity.

But is that truly the case?

Let’s look at the narrative from the lenses of laws and not take the path of emotional sentiments. One of the questions before the Supreme Court in the Rohingya petition is: Could the Supreme Court at all interfere with this particular issue?

In the US, call it Presidential or Executive prerogative, there are certain aspects of policy in which the judiciary is not supposed to interfere. For the simple reason that one, it may lack the expertise, and two, not everything is necessarily open to judicial review. Certain things are a matter of policy in which judiciary are not supposed to interfere. All your moralistic nonsense must necessarily find its way in the dust bin. 

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Let’s look at the Rohingyas issue. If India is already unsafe for these minorities, pray, tell me, why do you want to invite them and subject them to further persecution. Now what’s happening before the Supreme Court is not a private dispute. It concerns every member of the country, every citizen. It’s an issue of public interest so discussing them in public is not a contempt of court, in my humble opinion. 

Now the point is, there are two issues that I wish to address as part of illegal immigration in India. Obviously, the immediate news peg is Rohingya, but something that has been simmering and festering for a very long time, at least since 1960s or even the 50s, is the issue of Bangladeshi immigration in the NorthEast. Both needs to be addressed because there is a clear continuum between the two.  

There is not too much of a distinction except for the ethnic group that is coming in. In fact, I would go on to say, there is no ethnic distinction also because there are clear scholarly publication written by Burmese scholars, who go on to say that Rohingyas were originally Bengali Muslims from the place Chittagong. They were recorded as Chittagongians in colonial records of the British. Rohingya has always been, understood as Rohingya Muslims only, not any other community.

In fact, as a part of our intervention petition before the Supreme Court, we have filed an article of 2005, by a scholar from SOAS Bulletin of Burma Research. She has traced the origins of Rohingyas and the development of a Muslim enclave in the state of Rakhine or Arakan and then has explained, what is that this country has been grappling with just like us since 1948. 

Now, before that there is one thing we need to address: As a nation state we need to protect our borders. Look at Brexit. The fact that you cannot erase identities, you cannot erase ethnic identities, or you can’t erase religious identities or national identities, or the concept of nationalism is not moot, the concept of nationalism has not become redundant, is something that we need to recognize because that is at the heart of the entire issue, because the argument which you will be fed from the other side is, India is a country whose history is full of migration. 

If you can’t distinguish between invasion, migration, settlement and Colonialism, God save you. Whenever you are wrong on the law, they bring out the argument of civilization and globalization. If, let’s say, India is only a land of migrations. Then why is Aryan Invasion Theory pushed. Term it as Aryan Migration Theory. You justify your theory of oppression of Dravidians by propagating the Aryan Invasion Theory and then when it suits you, it’s migration theory. 

They say, sorry, you are living in the old world, you are a dinosaur, you are not modern, you are not secular, you are not liberal and therefore you have not embraced the concept of globalization in spirit and in substance and that’s why you continue to harp on, my country, my territory, my border and this kind of nonsense.

I am so sorry. Be it war or every other concern that we are faced with today is intrinsically connected to the concept of a nation state at least as far as our external issues are concerned or perhaps even internal issues. Be it aggression from within, let’s call it Naxalism or aggression from outside, both of them are challenges to India as a state, India as a nation state, therefore it is important to respect the sanctity of the concept of a nation state in the first place and then ask ourselves, what is it got to do with this particular issue? As I said, the concept of protection of your sovereign borders flows from your right as a sovereign state. 

Citizenship Act and Foreigners Act

Now in India, what is the legal framework that applies to this particular issue, is the simple question.

 Illegal immigrant ka kahi pe koi paribhasha hai, koi definition hai

The basis for this would be in two Acts, in fact. One is the Citizenship Act and other is the Foreigners Act, both of them compliment each other, where one defines who is a citizen and the other defines who is a foreigner. So, as far as the Citizenship Act of 1955 is concerned, it goes on to say that someone who is not a foreigner is a citizen, beautiful definition. Now, who is a foreigner is actually defined in the Foreigners Act of 1946 and it has an elaborate definition, where it says someone who doesn’t have valid passport, who has not entered here with a requisite documents or who has a valid passport but has overstayed his, let’s say period of allowance, is a foreigner. 

There is no definition of a refugee as far as Indian law is concerned

We do not have a refugee law. We perhaps have what is known as a standard operating procedure that came out in I think December 29th 2011 and the NDA government has subsequently applied same standard operating procedure. One paragraph, more or less, captures the sum and substance of India’s position when it comes to refugees. 

“India is not a signatory to the 1951 United Nations convention on the status of refugees.”

Point number one, please note. Therefore, all obligations that apply to the signatories of this particular convention, they don’t apply to us. Second, and this is true to the 1967 protocol as well. So neither are we parties or signatories to the 1951 convention nor are we parties to the 1967 protocol. Therefore, the obligations that apply and that attend and visit on signatories don’t apply to us. 

Two, there is no national law on refugee at present.

Is our position with respect to Rohingyas, violative of the standard operating procedure, is the only question I have to answer because that is the only position that applies to refugees today. This is the only legal framework that applies to refugees today.

This standard operating procedure stipulates that cases which are prima facie justified on grounds of a well-founded fear of persecution, on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion can be recommended by the state government to the Ministry of Home Affairs, for grant of long term visa, after due security verification. 

A foreigner to whom LTV is permitted by the Ministry of Home Affairs will be allowed to take up employment in the private sector. Therefore what is the mechanism? The state government will escalate a request to the Union ministry of Home Affairs, saying a particular individual or a group is entitled to long term visas after due security verification is undertaken. Now, if your security verification tells you, that there is a problem, what do you do?

So a friend asked: “Sai, is it really your case that all 40,000 people including children and pregnant woman are all terrorist?” I said, no, that’s not my position at all. He then asked why do you want them out? I said, have you been able to conclusively prove that Diwali firecrackers is the sole cause for pollution in Delhi? If not then on what basis you made the decision to ban them? You based it on prevention. 

The same idea of prevention must apply to security. (He asks) Are you sure of the consequences of inviting 40,000 people in this country, 30 years hence? But my answer is we actually know. And we know this from our experience of Bangladeshi immigrants into this country from 1971 onwards. It has changed the demographics in the Northeast, the cultural identity, the ethnic identity, the law and order situation and even the safety of women. Let me put it bluntly: It’s documented; it’s known. 

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The Supreme Court recognizes it in three judgements, on the same issue. An exodus happened within this country in 1989. You need to learn those lessons. 

And who’s word we should believe? Not mine who passes an armchair opinion and tweets. We need to pay heed to people who are from security agencies, from intelligence apparatus, from armed forces for they have better understanding. They are better positioned to address this issue. 

Do we have an example of a better-informed opinion influencing a judicial outcome of a similar issue in the past? Of course, we have. In the Bangladesh case, one of the central documents that was used by the Supreme Court to arrive at its findings, that illegal immigration is destroying the NorthEast, was a 42 page report of Lt. General SK Sinha (image below), who was governor of Assam at that point of time. His 42-page report was a huge red flag. It urged Centre to please do something, for if you don’t, it’s just not Assam, it would affect the rest of the country in times to come. His words have come true for in Greater Noida, so far from Assam, illegal Bangladeshis created a havoc in recent years.

Role of Politics

That is explained in the position taken by the Supreme Court in its judgments. The first in a writ petition, filed in 2000 which led to a judgement in 2005; the second and third in a judgment in 2006 and 2014. So what were the issues on these three different dates? 

The issue of protecting the ethnic identity of Assam has always been an issue. One of the first legislations to come out after the Foreigners Act of 1946 was the Immigration Expulsion Act of 1950 that was made applicable to Assam. Yet nothing happened. So the All India Assam Students Union began creating a ruckus and it led to an accord which is known as the Assam Accord, on August 15, 1985. 

Now before that something happens, the government comes out with a legislation called the IMDT – Illegal Migrants Determination by Tribunal Act of 1983, pursuant to which they set up foreigners tribunals, they set up illegal migrants tribunals, to basically deport these people. There is a Foreigners Act of 1946, there is a Citizenship Act of 1955, then there is an IMDT Act of 1983. 

You already have a Foreigners Act, to kick out foreigners, why did you need a second legislation in 1983? Ask yourself, why do you need two Acts to achieve the same object? 

Foreigners Act is meant for Constitution of Tribunals to deport foreigners, the government has absolute powers, unfettered powers under this legislation to kick out anyone, who is not a citizen of this country, who is an illegal migrant, then why do you need a second legislation? This is where it becomes relevant. The IMDT Act imposed a higher burden on the government to prove that somebody is an illegal migrant, consequently the burden which was there under the Foreigners Act, was hiked up and spiked up, so that it becomes difficult for you to kick someone out, thereby defeating the very object of that particular Act itself. 

Therefore the Assam’s Students Union continued to write and make representations to the state government. The state government makes representation to the Central government over and over again saying, do you know what is the biggest hurdle in the way of deportation? The very legislation that is meant to facilitate deportation, they go on writing this until it reaches a crescendo and then they enter into the Assam Accord of 1985. But does it lead to the repealing of the Act? No, it doesn’t, it goes on. 

So the standard response from the party in power at the Centre was, the repealment of this IMDT Act is under active consideration, it was so actively considered that until the Supreme Court’s decision in 2005 it was still in force. It took a Supreme Court’s decision to kill that legislation with a categoric finding that this legislation has been singularly responsible for not facilitating deportation, although it was meant to facilitate deportation better than the Foreigners Act. 

Now you digest this. The Foreigners Act applies to all states neighbouring Assam, but it doesn’t applies to Assam because there is a special legislation that applies to Assam. Assam is the weak point where you need more attention and there you have spiked up the standards for deportation of illegal immigrants.

 This is not a point of law, this is a point of intention, this is a question of intention. 

A law is not just a piece of document on a paper, it reflects the intention of the legislature and also the intention of the people who are prime movers behind that particular legislation and therefore the question that arises is, what was their intention? What were they doing, people who are supposed to protect our interest as a nation, to protect our sovereign borders as a nation state, what were they doing?

So here is what happens, you have the Asom Gana Parishad, which is one of the parties in Assam, during the course of this litigation before the Supreme Court that is from 2000 to 2005, there is a change in dispensation in the state of Assam. The Asom Gan Parishad files the first affidavit on behalf of the state of Assam, clearly echoing the views of the Student Union, saying, yes there is a problem. There is a serious problem wherein between 1981 to 1991, the population explosion of Muslims in Assam was much more than the rest of the country and certainly much more than the population growth of the Hindus in that particular state, either they are having something that is extremely making them potent and fertile or something else is happening. 

I don’t know what to make of it but the clear indicators are that this is a product of infiltration and that is exactly the report that went from the Governor S K Sinha to the Union government saying ’61-’71, ’71-’81, ’81-’91, take a look at the population explosion figures of both these demographics- Hindus in Assam, Muslims in Assam, Hindus in rest of the country, Muslims in rest of the country. Assamese Muslims grew up in exponential numbers compared to the rest of the Muslims. The point is when this happened, the Supreme Court realized that this is an issue that needs to be addressed. There is a power change that happens. Guess who comes to power in the state of Assam? Congress. They file a second affidavit stating The IMDT Act is so effective, it is perfectly constitutional, it is perhaps the textbook example of constitutionality, what is your problem with this legislation?

A simple affidavit without explaining what steps have been taken and to deport illegal immigrants is sent to the Supreme Court in the second affidavit filed on behalf of the state of Assam, during the course of the litigation. So, the first request that is made please remove that and consider this one as it is our official position. 

Everybody says what is wrong with you, how can the state keep changing its position, governments may change but as a state you need to have some consistency in your position, how can your positions be so markedly be different and diametrically opposite? 

So they say ok, don’t replace it consider it as an additional affidavit. 

Your additional affidavit basically says something that is exactly opposite to your first affidavit, one says it is blatantly unconstitutional, other says it is perfectly constitutional?

So the Supreme Court says, ok, I don’t have a problem, I’ll use your affidavit as well and then the Supreme Court says, I don’t see why should I place reliance upon the second affidavit at all, when the facts are to the contrary. You can keep portraying this projection and perception of victimhood but at some stage facts will speak for themselves. The box within which you place yourself to support some kind of victimhood narrative will grow narrower and narrower, ultimately you will realize that you have been a fool all along, you are a useful idiot for somebody’s agenda. So that’s what exactly happened, and the Supreme Court said that this legislation needs to be scrapped, the rules under this particular legislation need to be scrapped. 

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So the government says, ok, now l will come out with a new order under Foreigners Act itself and I will come out with a new set of rules, again the same story repeats itself. Now this is in the year 2006 (and) if my memory serves me right, BJP went out of power in 2004. So again, the Congress was in power in 2006. Again, so in the first petition, the lead petitioner was Mr. Sarbananda Sonowal, who was the President of ASU at that point of time and again at the second petition he was the petitioner, again going back to the Supreme Court saying, you asked them to strike down that legislation so that they can facilitate and expray deportation. They again come out with the blessed order, which is in the teeth of your first judgement. So again that is struck down. Detailed directions are issued saying, sorry you have to do something about this, increase the number of tribunals and border fencing. Please understand that Assam has only 262 km border with Bangladesh and the entire length of that border is 4096 km approximately. Obviously, it’s not a straight, the topography is not flat. There are issues, its gonna take some time. But my question is, 

“Bhai 1960 se leke 2017 tak aap 262km ko theek se fence nahi kar paye?” (You couldn’t repair a 262km fence from 1960 to 2017)?

Is that really your case? You couldn’t increase the number of tribunals. You couldn’t and there are repeated exhortations and affidavits before the Supreme Court (have been), we have not been able to find qualified professionals to man the tribunals. I think the only comparable example would be of a child who comes late to school, – 

“bhai late kyun aaye?

– Late aaya.

Arey sawal jawab thodi ho saktha hai.” 

You have to give me a clear response, that’s more or less the response they gave, and this is the government of India making all these statements, before the Supreme Court! 

If a private litigant had made these kind of statements, the court’s wrath would have visited upon that particular fellow saying, What have you done? How can you take the court for a ride? This is an abuse of process.

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Citizenship Act

The Citizenship Act is what bestows you with citizenship. It can’t be any other legislation that does this. So, they come out with a provision, Section 6A of the Citizenship Act that was inserted after the Assam Accord of 1985. Why was that provision important? 

So, you have to look at three timelines, 1947-1966, 66-71, 71-till date. One who is ordinarily been a resident of Assam prior to 1966, will be treated as a citizen of India and therefore a citizen of Assam, and therefore he cannot be treated as an illegal immigrant. From ’66 to ’71 will be covered by Section 6A of the Citizenship Act, the period after 1971 will be covered by the IMDT Act, that’s how it was split. 

Now IMDT Act has gone, that means deportation of people post 1971 also goes into the basket of the Foreigners Act, right? Therefore, the point was, the Foreigners Act now gives you the power to go after everyone. The Citizenship Act is protecting people between 1966-71. There are special provisions that are created for it. So, the challenge to this particular provision was again filed, I think so first petition was filed in 2009, the second petition was writ petition of 2012. That decision came out on the 17th of December 2014, after change in power in the Centre. Now one would have hoped that a change in dispensation, would bring with it a change of conscience and a change of position as far as such a critical issue is concerned. The government in power in December 2014, defended the Section 6A of the Citizenship Act, until the Supreme Court struck it down or rather did not strike it down, basically said, we will look into this particular question of whether or not it’s valid, but we are certainly of the view, that ever since this issue has been escalated and has been brought into national spotlight in 1960, the number of people who have been deported is abysmal. Its barely in lakhs and look at the numbers that we have. 

When Lt Gen S K Sinha gave his report to the Centre in 1998-99, the number of illegal immigrants in Assam, I think was close to 1.4 million. Around that time the population of illegal immigrants and Bangladeshis in Delhi itself was 3 million. This was in 1998-99, already they had reached Delhi. Official figures today are around 3 crores and you can always add another 50%. If it’s a government figure, you can always spike it up by another 50%. That is the number that you are looking at. There is a clear record in one of these judgements. One specific factor is that they are used as vote banks and pampered by political leaders, and its specifically mentioned. 

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Now when we make the same point about Rohingyas in 2017, we are called bigots. Our pleadings are sought to be expunged from the record of the Supreme Court. My bigotry is sought to be expunged. Fine, but who is going to expunge your idiocity? Who is going to help me brainwash your stupid brain that you can’t even seem to understand that this is a reality. If let’s say I did not have a Bangladesh immigration example in front of me, from 1971-2017, you could always say you are being a Trumptard. But when I have this example, which has received the endorsement of the highest court of the land, in three successive judgments. I wish to understand what is it that I am saying, which is not supported by facts and law? Now they say, no, no. Even if there is no law that applies to refugees in India, there is certainly customary International Law that applies to all countries who are in them, who are part of the committee of civilized nations, and all of us are supposed to respect it. I said, okay, tell us the principle which you are relying upon of International law to support the position, that these people must be treated as refugees. They are saying there is a principle called, Principle of Non-Refoulment.

It’s just this, assume that a lady comes from Pakistan to India saying that she is being persecuted for her religious beliefs and that she is not comfortable in that particular atmosphere, you can’t force her to go back to Pakistan, that is the Principle of non-Refoulment. That means which is the place where persecution is happening as far as Rohingyas are concerned? Myanmar, 

“kya wo seedha Myanmar se Bharath aa raha hai? Bangladesh me to inka itna bada tent hai.” ( Are they coming directly from Myanmar? They have their tents in Bangladesh)

so if I send them back to Bangladesh, am I sending them back to a place where they are being persecuted? Therefore, how is the Principle of non-refoulment being violated?

Second, is it your case that if let’s assume for a moment that persecution has taken place. Are you saying that it is not possible for that particular state to be put under a watch by United Nations and by a host of countries surrounding saying, boss, it’s no more your problem, your problem has spilled over into my territory, that’s precisely what Indira Gandhi did in 1971-72. Her position towards the United States was please don’t think that I’m actually interested in bifurcating Pakistan, the problem is millions of people have spilled over into our country and I have a real humanitarian crisis and perhaps even demographic crisis at hand and I need to do something about it. That’s precisely the statement that is being made today and that’s is precisely the position that we wish to take today. So what is wrong? After all she is the venerated figure for certain sections. If she is so infallible, why is that position suddenly fallible? Merely because somebody else says it? 

Forget who says it, ask yourself objectively what is wrong with the position? Now, Principle of Non Refoulement also translates to multiple things, 

iska matlab ye hai, refugees ke bhalai ke liye agar aap kuch kar sakte hai, please kuch ki jiye, ( If you can do something on a humanitarian ground, do that )

That is the sum and substance of it. So send relief material, provide them with assistance, financial assistance, humanitarian aid, make sure that their refugee shelters in wherever, whichever country they live in are in decent conditions, in sanitary conditions, in human conditions, do all that. Why does it necessarily have to translate to only one option, which is to say invite them, settle them, rehabilitate them, in this country? 

One of the things that applies in International law, when it comes to addressing refugee situations and humanitarian situations is, it is not one person’s problem, people have to share that particular burden. You have a China, you have a Bangladesh, you have others and certainly, I would say, the OIC perhaps could have a view. The Organization of Islamic Countries perhaps may have a view because they have always had a view on Kashmir, they’ve had a view on Palestine, why are they not having a view on this particular issue? Why are they not stepping up and saying that why should this be India’s problem, we will take care of these people? Palestine is become everybody’s problem except that of the Arab world, Rohingyas become everybody’s problem except of the Arab world and let’s say Bangladesh. How is this correct? 

Citizenship Amendment Act (CAA)

In the Citizenship Amendment Act, where we are basically saying, that specific persecuted minorities such as Hindus, Parsis, Jains, Buddhists, Christians, Chakmas from Afghanistan, Pakistan, Bangladesh, three countries have been identified on the basis of which we also have issued LTV notifications, for long term visas, let them be settled in this country. After all we can’t forget history, which says that these people have always belonged to this particular sub-continent and they should find shelter in some parts of the sub-continent and what better place than the motherland itself, which is India and again there is a legal argument to be made here. 

But when somebody decides to enter my country, my prerogative in terms of a sovereign country reigns supreme, which means I get to choose who enters and who can’t, and I can give specific reasons for it. I can give specific rationale for it. Therefore, it is not illegal, unconstitutional, to say that these are the people who we will invite in this country because we believe they don’t pose trouble. Therefore, if somebody gives the stupid argument, you have invited Zoroastrians, you have invited Tibetans, you have invited these peoples, yes, because I believe they don’t pose any trouble to me. Shouldn’t I have some kind of a concern when 40,000 people sneak in and out of India? And when all kind of Jihadi organisations and pro-separatist organizations throw their weight behind them? Aren’t you actually proving the Supreme Court’s finding that there are political reasons for it? 

Bearing this in mind, it is legitimate for us to basically take the position that on the basis of identity, India may have the right and perhaps has the right and has the right, to decide who shall and shall not enter this country and where am I drawing this position from? 

I am drawing this position from the Foreigners Act which has been interpreted in two landmark judgements of the Supreme Court, one in ’91 where it specifically says that the power of the government to expel an illegal immigrant in unfettered. It is its sole prerogative. I am only saying the converse, the power of the government to allow people to enter is also equally unfettered. If I can kick people out solely on my prerogative, I can certainly invite them on my prerogative. That is the converse. To put it in James Bond terms, the license to kill is equally the license to not kill. Therefore, as far as I am concerned, the Foreigners Act is the only legislation that applies to this particular issue or at least has to hold supreme because you can’t cite Articles 14 and 21 of the Constitution because in the very same judgement the court has also held an opinion. All these people certainly have the benefit of Article 21 of the constitution, which means they will be treated as dignified people. They will be treated with dignity that doesn’t necessarily translate to giving them a residence in this particular country, because if you choose to do that, everybody can walk into this country invoke article 21 and 14 and render useless the power of the government under the Foreigners Act to kick them out.

How do you stop them? 

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Therefore our position has been before the Supreme Court, before you entertain this particular petition ask yourself, if you can even comment on it .We are basically saying, I can approach the Supreme Court asking for deportation but nobody can come to the Supreme Court to stop deportation. 

Assume for a moment that a bonafide citizen of this country is suddenly branded an illegal immigrant and then he is sought to be kicked out under the Foreigners Act. Of course, then you have the right to say, how did you suddenly brand him an illegal immigrant? What is the factual basis for it? What is the legal basis for it? 

It is nobody’s case that Rohingyas are citizens of this country. If you are not a citizen of this country, you are not a citizen of this country under the Citizenship Act. Therefore, you are a foreigner. Now under the Foreigners Act, you fall within the definition of an illegal immigrant because there is no definition for a refugee. If you are an illegal immigrant, the government’s power to kick you out is legitimate. What do you do if it’s a national security threat which could blow in your face in the next 10 or 20 years? 

So ok I am a Sanghi troll, I mouth bigoted nonsense. Let me see how many people resonate and echo my opinion. So, what we did was, we placed before the Supreme Court, at least 7 articles from institutions whose secular credentials are above board.

An article by India Today, titled “Rohingyas in India and terror threat, how Jihadi forces may have infiltrated persecuted Muslims of Myanmar”,

Reuters: Myanmar’s Rohingya insurgencies has link to Saudi, Pakistan Report  

The Nation: Pakistan and the Rohingyas  

Al Jazeera : Deadly clashes erupt in Myanmar’s restive Rakhine state.  

BBC : Why is there communal violence in Myanmar? 

Hindustan Times: Lashkar radicalizes Rohingyas to wage war against India. 

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So what am I saying before the Supreme Court,what makes me bigoted which others have not said in mainstream media? The problem is not with the facts, the problem is that the position has become politically incorrect. Again, this is another instance of branding and silencing merely because you have a point of view, which is different from the established point of view, the acceptable point of view, the politically correct point of view. I am placing law, I am placing facts, it cannot be your case that until I am able to demonstrate to the court every member of that 40,000 community is a terrorist, the government can’t do anything about it.

Which world are you living in?

In the world of national security threats from even 10 people are problematic. You did not need 3000 people to kill 3000 people in 9/11. You needed only 11 people and 19 hijackers to do that entire damage. So, what are we talking about? 

Nobody stops India from giving these people the support they need, the humanitarian aid they need. But do we really need to atone, let’s say, to hug the cactus? We don’t need to hug the cactus, that’s not our job at all. We have, we don’t need to suffer from white guilt. Let me put it that way. To say that we need to atone for some sins and therefore let’s do this kind of karma and atone for our sins, we don’t need to do this at all. For all practical purposes and if you read the literature with respect to the Rohingya insurgency in Myanmar, they have always wanted the establishment of an Islamic State, they owe their allegiances. In fact, they wanted to be a part of Pakistan or at least a part of, let’s say, pseudo Pakistan, which is Bangladesh. Consequently, when this is their stated political religious, ethnic affiliation and this is their stated position, are you truly blind to that particular position and do you want to put at stake the livelihoods, the lives and the security of the rest of the country? 

You think these people are there only in Jammu and Kashmir? You will find them in tents in Chembur in Mumbai, some people have reached deep South, they have crossed the Vindhyas, they have crossed the Narmada, but this also begs the question, this is supposed to be a government which is alive to national security, the national security advisor is a former super spook, he is a former super spy, who has lived under cover in Pakistan. I have seen all those videos. So, my question is what were you doing until all these people congregated here? Waiting for them to come and mushroom? Surely it can’t be your case that you did not know that 40,000 people were coming into India. So, this is to dispel the notion that we are somehow stooges of the government. In fact, we are asking this question of the government and Supreme Court saying, pray tell us what were you doing? Were you twiddling your thumbs? Do we have another Kargil on our hands? Were you caught asleep?

Therefore, the point is, this is not a question of which dispensation I support or which government am I speaking for, whose mouthpiece I am, whose megaphone I am. This is a question that concerns all of us and today what effects the NorthEast will affect everybody else. 

So, as far as illegal immigration is concerned, it requires us to do one or two things, if you do not answer the question of who you are as a country on an identity basis today, they will certainly push the argument over a point of time that this country has always been a melting pot of civilizations and cultures and it doesn’t have an identity of its own. I don’t wish to repeat it. 

The point I am trying to make is this, the issue of illegal immigration may not affect people who live in Jor Bagh or in South Delhi or in Sobo or in South Calcutta. All these people will not be affected and for them this may be a humanitarian problem and therefore their bleeding hearts will say, Bhai, kuch kar dete hai. For them this is another way of putting Chanda. That’s it.

Beyond that they don’t see it, whose gonna be affected? People living on the streets because it’s their jobs, their survival, their livelihoods, which will be at stake first. It’s always the common man or the middle-class man or the lower middle-class person, who is going to bear the brunt of it first. Therefore, we may have the luxury of sitting in our air-conditioned rooms, holding wine bottles basically saying, the saffron brigade, they have taken over the country, they have no heart at all and what bores, what country brutes they are. 

That’s the kind of nonsense you know how to peddle, but when faced with facts, when faced with real issues, when faced with law, you really don’t have a counter, except for hyperbole and allegations. 

xxx

The thing is, the moment you catch them on facts, they will go back to playing victim. They will go back to playing the perception argument, when you counter them with perception saying, it’s not just me saying this, the rest of the world is saying this, please wake up, they will immediately say, sorry you don’t have a heart. Will me having a heart make a difference to my case in the Supreme Court? No, how does it matter? Some issues have to be addressed objectively and please understand, we did not have a problem with Afghan refugees coming into this country, but we do have a problem with Rohingyas coming in. So please don’t make it a Muslim issue. 

When Afghan refugees came into this country, we didn’t ask for their faith, for us it was a simple question of, does Afghanistan, in general, has it had an animus against India? If the answer is a NO, there is no problem. But if Rohingyas have always said that their allegiance is towards the Islamic Republic of Pakistan, the land of the Pure or the land of the secondary pure, which is the Bangladesh, then surely, I have a problem with such people coming in because, you already made your choice before 1947. Why is that position expected to change all of a sudden? We may deny the two-nation theory, but they have subscribed to it, their entire identity revolves around it, they have lived that theory all their lives for generations together. 

Consequently, to suddenly hope that them being in a position of victimhood, would all of a sudden change their position towards the two-nation theory?

I think is foolhardy, because perhaps this generation which comes in as, let’s say refugees may believe that no, no India has given us this place, let’s be good to this place. Can you guarantee that a generation down the line or two generations down the line, again they will not join voices and again, let’s call it, trifurcate India? What do you do then? These are not conspiratorial apprehensions, this is not fear mongering. One, my position in law is rooted, I am not saying its 100% right. But I have a basis for what I am saying. I don’t see your basis. In fact we have even quoted General Ata Hasnain as part of our pleadings before the Supreme Court. See even he has said this and he is a proud Muslim, the man is proud of his faith. So, he is not bringing faith into this entire thing. When somebody asked him on Twitter, what do you think of this particular issue, of the Rohingyas, he says a stateless people, particularly when they have links or they owe their allegiance to Pakistan, they pose a threat to India. He has made the statement, what more do I need? Therefore as far as I am concerned, the issue of illegal immigration is bound to explode because if the number is about, let’s say, four and a half to five crores today, imagine what a vote bank it represents and whether I agree with Saswati Sarkar in general or not, but you need to read her pieces which she has authored along with Shanmugh and Dikgaj.

That is a fantastic series to read, on the change in demographics along the entire NorthEast, in the border regions and it’s scary, border regions in the North and in cities like Mangalore, in South Karnataka in Kanara districts, you need to read them. The luxury of discussing and deliberating all these esoteric issues, will be afforded to you only when you live in a truly secular state, and truly secular state unfortunately is dependent on demographic balance to some extent. If the demographic balance is not in favour of secularism in the true sense, then you really have a problem. See it’s not our case that you go after a certain community and sterilize that community like Indira Gandhi did. That’s not our point at all, you can’t do that. But let there be no artificial increase in population and an alteration in demographics because of extraneous considerations and external factors.

Can we not stop that? That is the legitimate expectation. So, for me this is our case, this is the issue, what I suggest is kindly read all three judgements of the Supreme Court of 2005, 2006 and 2014. They make for brilliant powerful and scary reading because that is more or less playing itself out as we speak, and I hope it doesn’t reflect the future. 

What can we do about it? I realized during course of my research that somebody had filed a writ petition civil 125 of 1998, a foresighted gentleman specifically pointing out to Supreme Court that the issue of Bangladesh immigration is not limited to NorthEast, why are you not constituting foreigner’s tribunals in the rest of the country? That was dismissed, not dismissed rather disposed of, in an order dated 15th of April 2009, one-page order basically saying, 

“Sarkari machinery apna kam kar rahi hai, aap chintha mat kijiye”. 

Based on an affidavit from the government basically saying that we have taken the necessary steps, to increase the number of tribunals, to find the requisite qualified professionals, we are fencing the borders.

Now, I’m not sure, in the light of this particular order, can I go back to the Supreme Court again asking, now revisit this particular issue, you have already come out with a one-page judgement in 2009, in response to such a serious issue. Perhaps it’s possible that the Supreme Court may have thought in 2009, arey, this is fear mongering, this is only an issue limited to the NorthEast, when in fact, in S K Sinha’s report itself he has said, they were already in Delhi. I am hoping that the changed circumstances and the changed factual matrix allows us to go back to the Supreme Court and say, you need to revisit and reconsider this, foreigners tribunals have to be constituted across the country, find the resources for it because if you don’t do it  you will have a real law and order national security situation on your hands.

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