The issue of the detection and deportation of illegal immigrants is of critical significance in the current political discourse. This article examines the domestic politico-legal implications of illegal immigration in Assam in the light of the controversy surrounding the Foreigners (Tribunals for Assam) Order, 2006 and its subsequent scrapping by the Supreme Court.

Prior to its scrapping by the Supreme Court on 12 July 2005, the determination of illegal immigrants in Assam - unlike the rest of the country that followed the Foreigners Act 1946 - was carried on under the Illegal Migrants Determination Act (IMDT) of 1983. The most contentious provision of the IMDT Act was that the onus of proving the citizenship credentials of a person in question lay with the complainant and the police. Under the Foreigner's Act, however, the onus lies on the accused. Moreover the IMDT Act also provided that "if the application is found frivolous or vexatious", the Central Government could reject it. Owing to the steady influx of Bangladeshi immigrants, Assam had seen massive unrest demanding the scrapping of the IMDT, culminating in it being struck down by the Supreme Court. The Court argued there was no requirement for a separate law determining the detection of foreigners in Assam while the rest of the country followed the Foreigners Act. Significantly, the Supreme Court order said "All the Tribunals and appellate tribunals under IMDT Act shall cease to function. All cases pending before (these) tribunals shall stand transferred to Foreigners (Tribunal) Order and be decided under Foreigners Act".

However, the Union Government, instead, reacted with an amendment - the Foreigners (Tribunals for Assam) Order of 2006 - that again puts the onus of proving a particular person as a foreigner on the complainant. The Order has generated a massive controversy and the launch of a legal battle. However, defending the Order the Government argued that the absence of such provision would lead to genuine citizens belonging to the minority community being victimized and harassed in the name of detecting Bangladeshi aliens. This argument finds root in the fear of indigenous Assamese that the presence of immigrants would reduce them to a minority in their own 'homeland.' Owing to this fear, there have been several instance in Assam when saw minorities were harassed and victimized, its worst manifestation being the 1983 communal violence during which 1800 men, women and children were massacred in a single night in Nellie (in the present Morigaon district of Assam) in an anti-foreigners agitation. The online India Daily (2005), states that thousands of people accused of being Bangladeshis have been forced to flee Assam following threats by anonymous groups.

Accusing the Congress of issuing the Order to incorporate the provisions of the IMDT Act in the Foreigners Act through the backdoor, the influential All Assam Students' Union (AASU) and two major Opposition parties, the Asom Gana Parishad (AGP) and the Bharatiya Janata Party (BJP), had opposed the Order. They charged the Congress with playing to its vote bank amongst the minorities. The Pioneer (July 2006), estimated that even though the Assam government had refused to provide official estimates of illegal immigration, there could be as many as one crore Bangladeshis living in the state. It has been estimated, as per official records, that over the past two decades, about 1,500 'illegal Bangladeshis' have been expelled (South Asia Terrorism Portal Report, 2006), and even for this number, however, there is no evidence that Bangladesh has officially accepted their return. This is a clear indication of the lack of political will in the issue of determination and deportation of illegal immigrants as they prove to be a source of votes. The Order is seen as being arbitrary and a complete violation of article 14 of the Constitution that speaks of 'equality before law' and 'equal protection of law'.

Taking recourse to legal action, the opposition challenged the Order in the Supreme Court. The consequent decision of the Court declaring the 2006 Order as illegal and unconstitutional has come as a rude shock to the national executive and has exposed the half-hearted attempts made by the executive towards resolving the crucial issue of illegal immigration. Coming down heavily on New Delhi, the Supreme Court bench of Justices S.P. Sinha and P.K. Balasubramanian, directed the central government to set up tribunals within four months for the determination of illegal migrants and for their deportation. This may lead to a breakup of the traditional vote bank of the Congress Party in power. Despite the striking down of the IMDT, the Congress was able to appease minority sentiments with the Foreigners Order of 2006. However, with the Order being currently quashed, the manner in which the political dynamic in Assam will change needs to be closely followed.. The first test will be the coming panchayat elections.