The Illegal Migrants (Determination by Tribunals) Act (IMDT Act) 1983 was established to fairly determine the status of individuals to enable the central government to expel illegal migrants from India and deal with the matters connected therewith or incidental thereto.
The Act is applicable to the whole of India but was first enacted in the State of Assam on October 15, 1983. The Central Government was given the power to determine the date of enforcement of this Act in various states by notification in the Official Gazette.
This Act paved the way for establishing judicial tribunals in the State of Assam to determine a person as an Indian or foreign citizen. The tribunals were established under the Act to give a fair chance to the alleged illegal migrant to prove their identity and appeal to the Appellate Tribunal in case the migrant was dissatisfied with the decision of the Tribunal.
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Objective of the IMDT Act, 1983
The primary objective of the Act was to establish tribunals to handle the disputes arising due to the presence of illegal immigrants in India and protect the citizens of India against illegal migrants by making special provisions in this regard.
What is the Application of the IMDT Act 1983?
The Act under Section 2 lays down that it shall not apply to any person:
(1) Who, before the commencement of this Act, had been expelled from such state or India in which he was residing or whose expulsion was made by this Act or any other law in force in India at the time of such expulsion.
(2) Who was detected, at the time of his entry into the Indian borders, as a foreigner.
(3) Who, being a foreigner, had entered India with a valid travel document or passport and has continued to remain in India after the expiry of such period for which he was authorised to stay in India.
This Act, by virtue of Section 29, has been repealed. However, any actions that were taken following the powers conferred by this Act to any person, tribunal, Central Government or the Ordinance shall be deemed to have been accepted or done under the provisions of this Act. This Act was struck down by the Supreme Court in the case of Sarbananda Sonowal vs UoI in 2005.
Who is an Illegal Migrant Under the Illegal Migrant (Determination by Tribunals) Act, 1983?
An ‘Illegal Migrant’ under the Act is a person who, being a foreigner, has entered into the Indian territory on or after March 25, 1971 without a valid passport or without being authorised under a valid travel document. The procedure for the determination of the status of a person as an illegal immigrant is laid down under Section 12 of the Act.
If a tribunal determines a person to be an illegal migrant under this Act, the person can be ordered to be removed from India at such a time as may be specified by the Central Government in its order. The person determined as the illegal migrant shall be given a specified route and any other necessary further directions by the Central Government under Section 20 of the Act for his/her removal from India.
How is the Tribunal Established Under the IMDT Act?
The Central Government, under Section 5 of the Act, is empowered to establish as many Tribunals under the Act by way of notification as it may seem necessary. The Central Government shall specify the jurisdiction, territorial limits of its exercise, and the principal place of each tribunals it establishes under the Act.
This Section further specifies the composition, the manner of appointment, the place of sitting other than the principal place determined by the Central Government and the appointment of the members of such tribunals.
What are the Powers of the Illegal Migrant (Determination) Tribunal?
The Tribunals established by the Central Government under Section 5 have been empowered under Section 9 to summon and enforce the presence of a witness and examine them under oath to discover and produce documents, to receive evidence of affidavit, to obtain public records from any courts or office and issue a commission to examine the witnesses.
How is it Determined Whether the Person is an Illegal Migrant?
As mentioned, Section 12 of the Act lays down the provisions related to the determination of the illegal migrant status of a person. The tribunal to whom the reference is made under Section 8 of the Act has the power to determine, based on the evidence, hearing and inquiry, the status of the alleged person. In the case of a difference of opinion, the power lies with the chairman of such a tribunal to state the points of difference in opinion and inform the President of the appellate tribunal under whose jurisdiction such a tribunal functions.
The tribunal has to send the prescribed authority and the concerned parties a copy of the order. The order passed by such tribunals cannot be questioned in any court and considered final unless an appeal is made to the appellate tribunal.
Can a Party Appeal Against the Order?
The Act provided guidelines for establishing an appellate tribunal, to which the aggrieved party could appeal against the order of the tribunal. The appellate tribunal, according to Section 15 of the Act, would comprise a minimum of 2 and a maximum of 6 members at the direction of the Central Government.
The time limit for raising an appeal was limited to 30 days from the date of the order of such a Tribunal, unless the aggrieved party showed a reasonable cause for delay in filing an appeal before the appellate tribunal. If the tribunal was not satisfied with the reason for the delay, the decision had to be considered final.
Penalties Under the Act
Section 20, under Chapter IV of the Act, enforces the orders made by the tribunals established by the Central Government. Under Sub-clause (2), the power to arrest persons who do not comply with the order and the ability to obtain a bond for compliance with the order given by the central government is conferred on a police officer, not below the rank of Superintendent of Police.
Furthermore, under Section 25, a person who contravenes, abets or attempts to deny, abet or harbours such a person fails to comply with the directions under the order of the Central Government is liable to a punishment comprising of a fine of more than INR 2,000 and an imprisonment of 1-3 years. The proviso to Section 25 provides that the court may provide relaxation in the imprisonment and fine in case of special cases.
Conclusion
The Act was criticised as being a paper tiger and less practical as it could not accurately identify and remove such illegal migrants from India. As many as 30 tribunals were originally provided for under the legislation, out of which only 16 were approved and 5 started functioning by 1998. Before its repeal in 2005, the tribunals referred as many as 1,12,000 cases.
However, only 1500 cases were concluded, and the illegal migrants determined by the tribunals were deported or removed from India, but 88,000 cases are pending. The Act had various shortcomings, including the requirement that the complainant and the accused had to be a part of the same jurisdiction. The burden of proof was on the state and the act did not authorise the State Police to carry out search and seizure.
FAQs on IMD Act
What is the purpose of the IMDTA, 1983?
The Act was established to determine the illegal migrant status of individuals to enable the central government to expel illegal migrants from India.
On whom does the IMDTA, 1983 apply?
The Act was applicable to all India but was initially enforced in the State of Assam on October 15, 1983. The Act was repealed by the Supreme Court in 2005.
Who is an illegal migrant under the Act?
An 'Illegal Migrant' under the Act is a foreigner who entered the Indian territory after March 25, 1971, without a valid passport or proper authorisation. Determining a person’s illegal migrant status is outlined in Section 12 of the Act.
What powers does the Tribunals established under the Act have?
The tribunals established by the Central Government have the authority to summon and examine witnesses under oath, obtain documents, obtain evidence through affidavit and obtain public records.
Can a person appeal against the decision of the tribunal?
Yes, the Act provides guidelines for establishing an appellate tribunal to which the aggrieved party must raise an appeal within 30 days from the date of the order of the tribunal.
What penalties are enforced under the Act?
Section 25 specifies penalties for contravention or abetment of the orders under Section 20, including fines of more than Rs 2,000 and imprisonment of 1-3 years.
What are the criticisms against the IMDTA, 1983?
The Act faced criticism for its perceived lack of practicality. Critics argued that it did not effectively identify and remove illegal immigrants from India as intended. The slow progress of cases in the established tribunals, limited approvals and functioning of tribunals, and many pending cases were some of the shortcomings highlighted by critics.
