By Patricia Mukhim
Union Home Minister, Sushil Kumar Shinde, known for his memory lapses has created a furore by declaring before a group of media persons at a press conference in Delhi that the Inner Line Regulation is a State subject and therefore it is left to respective states to decide whether or not to extend the Regulation to their boundaries. It is learnt that the Union Home Secretary was with Mr Shinde when he made that indiscreet statement in a cavalier manner without considering the consequences of the spoken word. What might seem innocuous to Shinde is a live issue that has cost lives and led to law and order situation in the states of Manipur and Meghalaya. But what is more disconcerting is the fact that the Home Minister of this country is uninformed about a Regulation (not an Act) which is a colonial residue in vogue in three states of North East India.
This writer contacted the Joint Secretary in charge of North East India in the Union Home Ministry Mr Shambhu Singh for clarity on this hugely obfuscated subject. Singh was just as confused. On July 9, 2012 the Union Home Ministry had written to the Principal Secretary (Home) Government of Manipur saying, (i) The State Government of Manipur cannot extend the Inner Line Permit to the State in terms of Bengal Eastern Frontier Regulation, 1873 applicable only in the North Eastern states of Arunachal Pradesh, Mizoram and Nagaland. Further, Article 19 (1) (a) of the Indian Constitution confers on its citizens the Fundamental Right of free movement throughout the territory of India. (ii) No authority is competent to extend the Regulation to the State Govt of Manipur. The letter goes on to say, “Keeping in view the aforesaid. It may be stated that Inner Line Permit System cannot be implemented in the State of Manipur.”
On July 19, 2012 the Union Home Ministry shot off another letter to the Manipur Government which says, “This has reference yo your letter dated 9th July 2012 and this Ministry’s clarification of even no dated July 9th 2012 on the above subject. In this regard the State Government is requested to furnish the following urgently (i) Whether the State had any ILP System in the past. If yes the period during which ILP regime was in force may be indicated. (ii) Under which law the said ILP was introduced? If there is any law or Regulation on the subject a copy of the same may be furnished.
Evidently there is total incoherence in the Union Home Ministry about the laws and regulations that govern this country which date back to the pre-Independence, colonial era. That such laws/regulations have not been abrogated despite their arbitrariness and unconstitutional character shows a lack of interest among the rulers of this country in the affairs of the North Eastern states. Even the enlightened members of the Constituent Assembly failed to address these issues which have now come to haunt the country. Is it because the three states that have continued with the ILP are in the periphery hence they were left with a colonial Regulation that have kept the states backward? Of course none of the states would admit that!
Mr Shambhu Singh has meanwhile sought the views of the Union Law Ministry and the Attorney General of India. He says until her gets their views on the ILP he would not make further comments because it would vitiate the already murky atmosphere of distrust and dissonance. This writer also spoke to Mr GK Pillai, former Union Home Secretary – a walking encyclopaedia on North Eastern Affairs – but this time Mr Pillai too was groping for words. After much pause Pillai said the ILP should not have continued after the Indian Independence Act of 1947. He said the ILP is not mentioned anywhere in the Constitution and is ultra-vires because it violates the Fundamental Rights of a citizen to move freely within his/her country. That it took the astute Mr Pillai, almost 24 hours to ponder over the matter and get back to this writer shows that the ILP is a subject matter beset by ambiguities and fraught with uncertainties which even the Union Home Ministry is yet to figure out. In such a situation what is the way forward?
Constitutional experts feel that the Eastern Bengal Frontier Regulation (EBFR),1873 was passed by the then Viceroy of India with approval of the Secretary of State, India Office in London. The concept of a ‘State’ as is understood today was non-existent then. Therefore the debate as to whether the ILP is a state or central subject does not arise. There existed no state of Meghalaya or Nagaland or Mizoram when the ILP was enforced. When the British handed over power they did so to Union Government. Hence all Laws, Acts, Regulations etc., should pass to the Union Government. The EBFR is a case in point and it should be the remit of the Union Government thereafter to decide whether the Regulation should or should not continue, much less whether it should be extended to more states. Following the creation of states in 1956, there were clear demarcation of powers and subjects of legislation between the Centre and states. But the Constitution also envisaged a shared competence through a third list which the Union and states may concurrently legislate.
Indian Constitution scholar Madhav Khosla says, “Sometimes a subject is absent from all three lists. Article 248 and Entry 97 of List 1 addresses this possibility and gives the Union residuary powers to legislate on such a matter. As a result the Union can perform any exercise of legitimate legislative power that is outside the realm of the State List. It can make a law dealing with a matter under list I, List III or none of the three lists. Consequently legal expert HS Dhillon in 1971 held that the test for determining whether a law falls within the competence of the Union is a simple one: the court will simply study whether the law is linked to an entry under List II. If not, then it need not matter which particular entry, if any, it is sourced from because it will lie within the Union’s competence. In situations where a Union and state law conflict, Article 254 prioritizes the former and renders the latter, to the extent of incompatibility or repugnancy, void.”
Since the ILP is an internal visa regime, regulating the movement of Indian citizens within the country, it is not a law and order subject under the purview of the state governments. Interestingly the Restricted Area Permit which prohibits foreigners from entering the North Eastern States for ‘security’ reasons has now been removed from all states barring Arunachal Pradesh, possibly because of its strategic location vis-a-vis China. The demand for implementation of the ILP by Manipur is because of a fear of ‘Aryanisation.’ In Meghalaya the demand for the ILP is to restrict the movement of other Indians and if possible to net in the illegal immigrants as well. How this two-fold aim can be achieved has not been spelt out by the proponents of the ILP. While unabated influx from Bangladesh extracts huge socio-economic costs and has political ramifications on account of the entry of subversive elements into our state, the ILP cannot resolve this crisis because it is anti-diluvian and regressive. We need a more evolved mechanism.
Protectionist policies cannot inhibit economic growth and development because that is tied to employment opportunities. Also, Meghalaya has an IIM, a Central University, an IIIT an IHM amongst others. Let’s ask why Mizoram, Nagaland and Arunachal Pradesh don’t have such institutions of excellence. The answer should clear our doubts.