By Dr Fenela Lyngdoh Nonglait
The present controversy over the need to protect the identity of indigenous people of Meghalaya against influx of outsiders, but to do so within the provisions of the law has generated heat and storm over the issue. Sadly it would appear that all involved are either looking at a half full glass of water and a half empty one. The call to bell the wild cat of influx and anti-infiltration seems to have generated a lot of hot air from different quarters. In view of the prevailing confusion, it would be best if we were to go back to the very beginning and attempt to study the problem from its origins; its legal implications and the emergence of this ipso facto lexicon (legal dictionary).
Way back in the 18th Century when India was neither a country nor a legal State, there came a law canon by the Her Majesty, Queen Victoria to safeguard, through punitive regulatory provisions, aimed at regulating transit facilities to non- hill people into the hills and the entire North Eastern Region through the Government of India Act, 1870, viz., The Bengal Eastern Frontier Regulation, 1873. The Law bequeathed judicial powers on the districts authority of Kamrup, Darrang, Nowgong, Sibsagar, Lakhimpur (Garo Hills), Khasi and Jaintia Hills, Naga Hills and Cachar to frame restrictive prohibitions for the entry of only Indian Citizens or passing through such districts from going beyond such line without a pass under the hand and seal of the District Officer/officers.
However facing grave loss of revenue and non-cooperation of the natives in some districts, the Bengal Eastern Frontier Regulation, 1873 was referred to the Amending Act, 1897. Section 4, removed the Garo hills district from the purview of the 1873 Act. This repeal exempted the Garo hills District during the partition of Bengal in 1905 into East Bengal and Assam. It is therefore to be noted that the Garo hills district no longer falls under the Eastern Bengal Provincial Jurisdiction. So the apt implication is that the State of Meghalaya which comprises of three Districts, Garo, Khasi and Jaintia Hills would have no locus standi to frame a law which does not cover the jurisdiction of the whole State, for the ILP under the EBF Act 1873 is applicable only in the Khasi and Jaintia hills. The State of Meghalaya attained statehood in 1972 and includes the Khasi -Jaintia Hills and Garo Hills District of Assam. The regulation therefore does not apply to the Garo Hills. It applies only to the then British areas of Khasi and Jaintia Hills District.
This development automatically attracts the expo-facto law effect (laws, enactments passed before independence but still got constitutional recognition after Independence) upon the repealing Act, 1897. Hence the legal obstacle and hurdle for formulating the INNER LINE PERMIT in its present form and in the present composition of the unbounded State of Meghalaya, is a reality and legal fact that has to be surmounted and which cannot be achieved through wishful thinking. The Regulation in its present form is applicable only in some areas of the State. It does not apply to Garo Hills nor does its applicability in the Khasi States area been determined. If extension is sought a new law has to be made.
If a new Law/Act is proposed to be made for extension of the 1873 Regulation over the whole State, it may amount to making a law relating to control and regulation of migration of population. Such a subject is covered in the Union List and the State does not have the power to make such or any law in this matter. Therefore, the Meghalaya State Legislature cannot enact such a law by itself. This is a legal position that has to be understood by one and all . It is to be reminded here that in 1979 an attempt was made by the State Government to introduce a Bill in the State Assembly for extending the 1873 Regulation 1873 over the whole State of Meghalaya but the Bill could not be considered by the House as the subject matter falls under the Union List (Parliament). Hence the legal implication/problems arising from the above legal lacunae makes the present demand for ILP in the State of Meghalaya a legal paradox.
The State Government in 1999 constituted a Working Group under the Chairmanship of (L) Shri T. H. Rangad, the then Home Minister. The Working Group had made relevant observations relating to the need for a proper balance between development activities and control of influx of outsiders into the State. It was observed that many who come into the State are labourers and job seekers rather than investors and tourists. The Working Group examined certain laws which could have been made and their impact on inter-state migration of population and also discussed with the officers of concerned departments of the Governments regarding implementation of such laws\regulations and noted as follows;
i. Inter-State Migrant Workmen [Regulation of Employment and condition of Services] Act of 1979;
ii. The Benami Transaction Prohibition Act 1980:
This law exists only on paper and has never been enforced on the ground due to certain inherent defects.
iii. The Meghalaya Transfer of Land (Regulation) Act 1971:
This law has been effective to a great extent in preventing transfer of land from tribals to non-tribals.
iv. The Garo Hills District (Residence Toll) Regulation 1961: The Regulation provides for compulsory registration of all people assessable to Residence Toll and is therefore a very important tool for keeping track of the outside labour force and job seekers, etc., who entered into the autonomous district of Garo Hills.
V. Regulation of Trading by Non-Tribals in the Autonomous Districts:All the three Autonomous District Councils of the State are implementing their respective regulations for trading by non-tribals in their respective areas of jurisdiction.
Having considered the existing laws and regulations which have a bearing on the subject, the Committee came to the conclusion that there is no effective mechanism to regulate large scale inter-state movement of population which is a necessity, not only from the point of view of maintaining the demographic structure of the State, but also in maintaining the identity of the indigenous tribal people of the State.
However the above Acts being defunct in practice may be re examined again by providing new teeth for better implementation and proper mechanism under the backdrop of the Regulation by inserting ILP provisions in them.
The Inner Line Regulation is a pre-Constitutional law and hence, the other question that whether the Regulation can still be enforced in those areas where it is applicable after the commencement of the Constitution in view of the fundamental rights to settle and reside and move freely in any part of India under Article 19(1) the answer is in the affirmative in view of Art. 13 of the Constitution as having no retrospective effect to pre constitutional laws.
Legal Measures which could be taken up by the State Government:
• Long Term Measures: Move the Government of India for extension of the Eastern Bengal Frontier Regulation 1873 in the District of Garo Hills whereby the due process will be time consuming since amendment to an existing law will be done through the Home Affairs Ministry and put up for discussion in the Parliament. The State of Manipur has been demanding ILP since and also passed a Resolution on the 13th July, 2012. This still awaits Parliament/ President Assent till date.
• Short Term Measures: Initiate new Legislative measures to integrate enforcement of all existing laws with the New Law within the Legislative competence of the State Legislature for effective measures to deal with influx and immigration issues. In which case any need to further strengthen the laws can be effectively done by the State Legislature.
To conclude we also need to recognize the undercurrent of demands relating to preservation of the cultural, traditional and linguistic aspects of Meghalaya. Unregulated influx is seen as the greatest danger towards a demographic imbalance which in the end shall have major negative implications on the indigenous status of the Khasi, Jaintia and Garo people. Therefore the need to is to install protective instruments that are in consonance with the law or by incorporating the sets of already existing laws to form a strongly binding regulated provision which not only provides ethnic protection but can also have salutary effects on the emerging rise of crimes in the state of Meghalaya.
(The author is a legal practitioner)