Captain Sanaullah's Burden Of Extraordinary Proof

19 May 2020 16 min read  Share

A poor mother, an army veteran—both Muslim with extensive citizenship proof— were declared foreigners in Assam, where people declared illegals rose 347% over three years since the BJP won the state that now serves as a precursor for national citizenship trials. We investigate majoritarian prejudices in these proceedings

Updated: Jun 8, 2020

Guwahati: If Jabeda Begum ever looked towards the horizon, she would see the lush, rolling hills of neighbouring Bhutan. But she was in hiding when we spoke over the phone and too worried and fearful about her future to bother about the view.

In the village of Pub Goibari in Assam’s northwestern district of Baksa, Begum, 42, could only wonder why the police came visiting in February 2020—probably to arrest her—following a television interview and a stream of other stories.

Media attention was focussed on Begum in February, when the Gauhati High Court upheld a 31 May 2019 decision of one of the state’s 100 Foreigner’s Tribunals (FTs), where K K Gupta, member—as presiding officers of these quasi-judicial bodies are called—ruled that the 15 documents she submitted were not enough to prove her Indian citizenship. The High Court agreed with Gupta’s ruling that she had slipped across the border from Mymensing in neighbouring Bangladesh sometime “after 1971”, a year after which all migrants are considered illegals.

Gupta’s order said Begum, a Bengali Muslim and only earning member of her poor family, was “liable to be pushed back”, a quasi-official term used for those found to be Bangladeshi, taken to the border with Bangladesh and forced into that country, often at gun point. The government no longer follows this coercive method of deportation, but Gupta ordered it anyway.

On 30 April, Assam government’s political department issued show cause notices to Gupta and 14 other tribunal members, citing newspaper reports and a first information report (FIR) over an 7 April 2020 letter written by Gupta to the government, which called the letter “unbecoming of a responsible FT member”.

Earlier, on 13 April 2020, the Assam Police registered a case that accused Gupta of “disturbing communal harmony”, after the draft of the letter leaked on Whatsapp on 10 April, 2020, revealing his prejudices against Muslims.

Those prejudices called into question his rulings at his previous posting at Nalbari, 70 km north of state capital Guwahati, and Baksa, where he currently serves. Over two years to April 2017, Gupta declared 96.4% of those who appeared before him, or 240 people, foreigners, according to filings at the Gauhati High Court.

In a clarification on 12 April 2020, Gupta said he had “never done anything on communal basis (sic)” and pointed to the fact he had confirmed the citizenship of 23 Muslims and nine Hindus . He said he never sent the letter to the government, had withdrawn it, and it did not have the consent of 14 others mentioned on it.

Asked if he declared more Muslims as foreigners than Hindus, Gupta told Article14: “I never counted on such communal lines. I have not kept any record also (sic).”

Gupta’s draft letter, addressed to state health minister Himanta Biswa Sarma, offered Rs 60,000 as donation from him and the 14 other FT members towards the effort to fight the Coronavirus outbreak. “Our only prayer is that the help may not be extended to the members of violators Tablighi Jamaat, Jihadi and Jahil,” said Gupta’s draft. “Kindly accept our donations as above for saving humanity from the clutches of COVID-19 pandemic infection.”

The Tablighi Jamaat reference was to a Coronavirus outbreak after a February-March 2020 congregation in Delhi of this conservative Muslim sect. The government tested everyone who attended and said the Tablighi meeting had increased India’s positive count, religious profiling that set off a spiral of nationwide Islamophobia. The words “jihadis” and “jahil”—an ignorant person—are commonly used slurs against all Muslims. In Assam, the government attributed 32 of 34 positive Coronavirus cases to the Tablighi meet.

Gupta's letter gave life to accusations that many FT members in 100 tribunals could be following the State’s unstated policy of declaring increasing numbers of people, in particular, Muslims, as illegal and that the renewal of their two-year contracts depended on such declarations. Over three years since the Bharatiya Janata Party (BJP) won Assam for the first time, the number of those declared foreigners has risen 347%, from 5,096 in 2016 to 22,783 in 2019, according to government data.

In May 2019, the same month that Gupta declared Begum a foreigner, a colleague called Pompa Chakravarty—one of the 12 tribunal members named in Gupta’s letter—did the same with honorary captain Mohammed Sanaullah. A 30-year veteran of the Indian army, Sanaullah was later an officer with the Assam Border Police Organisation, a branch of the state police that functions like an intelligence agency, looking for illegal immigrants. Like Gupta, Chakravarty, at a tribunal at Boko outside Guwahati, ruled that the 23 documents that Sanaullah, 53, submitted could not prove links to his parents and, so, he was not Indian.

Sanaullah remembered the phone call from his son-in-law Sahidul Islam, also his lawyer at the FT. “Mukadma kharab ho gaya (The trial has gone bad). You are a foreigner,” Sanaullah recalled his son-in-law telling him that May 2019 evening the order was passed.

Sanaullah retired as a subedar with the Corps of Electronics and Mechanical Engineers (EME) in 2017. Three years earlier, in recognition of his services, he was promoted to the rank of a junior commissioned officer, a Naib Subedar. After his tour of duty, Sanaullah returned to Assam and joined the border police branch as a sub-inspector.

His work involved keeping track of those declared foreigners, securing custody and sending them to detention. During his six-month stint, from November 2018 to May 2019, Sanaullah detained a woman who had been declared a foreigner and sent her to the detention centre in Kokrajhar.

He was unaware then that a colleague of the same rank of the same branch from the same district as him had marked him as a suspected illegal immigrant a decade ago in 2008.

Pushed Towards Anti-Muslim Prejuidice

The alleged bias of FT members, denied by the government, is at the heart of a now-intensifying effort, more than half a century old, by Assam to remove from its citizenship rolls a few millions it considers foreigners, primarily Bangladeshis. A senior official of Assam’s Home Department said, on condition of anonymity, that “foreigners tribunals are independent, unbiased and monitored by the Gauhati High Court”.

How Assam handles the sensitive issue of citizenship is important to India because the union government on 20 November 2019 said it intended to extend the exercise nationwide, fuelling more than three months of protests and global criticism of the move to link citizenship to religion.

The accusations of bias have grown ever since the government on 11 December 2019 passed the Citizenship Amendment Act (CAA) and many members of the ruling BJP made a distinction between between “infiltrators” (those who will not benefit from the CAA) and “refugees” (non-Muslim beneficiaries of the new law).

A serving and two former FT members criticised Gupta’s letter. “This is communal,” one of the three cited told Article14. He should be dealt with how the government is dealing with Aminul Islam.”

A Member of the Legislative Assembly (MLA) in Assam, Islam was charged with sedition—among other charges—after he accused the state government of “conspiring against Muslims” and said quarantine facilities in the state were “worse than detention centres” for illegal migrants. There were other demands for Gupta’s sacking.

Aman Wadud, a Guwahati lawyer involved with many citizenship cases, said if biased FT members heard appeals against their exclusion from the National Register of Citizens (NRC)—1.9 million were removed in August 2019—many could arbitrarily be declared as foreigners, as 200 new FTs prepare to start work.

Presiding officers are usually lawyers, as Gupta was.

Wadud’s apprehensions about FT members succumbing to State pressure to increase the number of illegals manifest themselves in Gupta’s record, rated as “good” because he declared, as we said, 96.4% of appellants appearing before him foreigners in Nalbari, according to a 2017 court filing. He was transferred to Baksa in 2018, where he declared Begum a foreigner.

A tribunal employee—speaking on condition that his name or role not be revealed—at Baksa said the number of those declared as foreigners have “picked up pace” since Gupta joined in April 2018.

“During the time of the earlier member, if, say, he heard 50 cases, 25 would be declared Indians,” said the Baksa FT employee. “Since the new member (Gupta) came in, the number of those declared foreigners have shot up. Zyada foreigner ho raha hai.”

FTs function like secret courts and discourage entry of outsiders. Over 50 years, members mostly operated quietly and stayed away from controversy, except that generated when their ruling are discussed threadbare and criticised for alleged lack of judicial application of mind, as it happened with Begum or Sanaullah.

Work dried up because of the lockdown and Jabeda Begum's legal status as a non-citizen.

Tragedy And Poverty: Jabeda Begum’s Story

“I do not know why they did this to me when I have all the documents,” Begum told Article14 from hiding, as she pointed to other problems that she has faced since India’s anti-Coronavirus lockdown. A big portion of the tin roof of her house was blown away in a recent storm.

If caught, Begum could end up in one of the six detention centres which run out of district jails in Assam. After a 13 April 2020 Supreme Court order, citing the COVID-19 pandemic threat to jails, she would only be eligible for release after two years (instead of three) and two sureties worth Rs 5,000 (against two sureties of Rs 100,000 previously).

But Begum would find it difficult to raise even Rs 5,000. For much of April, she and her family—an invalid husband and 12-year-old daughter—survived on food donated by neighbours. Work dried up because of the lockdown, her legal status as a non-citizen and the fact that the police were looking for her. Begum’s life is marked by tragedy. One of her daughters was electrocuted on an anti-elephant fence and another is missing. Only the youngest is left.

In April 2018, a border police sub-inspector inquired into Begum’s citizenship status. His report said she did not have citizenship documents and that she walked across the Indo-Bangladesh border at Mankachar in lower Assam. Like many such inquiries, it did not specify the date or year when she came or who with. It only said she came after 24 March 1971, the date before which anyone who cannot prove residence in Assam is declared an illegal immigrant.

In May 2018, a Superintendent of Police cleared the inquiry report and referred the case to the FT in Baksa.

1 In 2 Declared Foreigners Because Officials Skip Tribunals

Contrary to the sub-inspector’s investigations, Begum had many documents, including 1951 NRC details of her father, copies of multiple voters list, from 1966 to 2015, with her father's name on them, land-revenue payment receipts, her ration card and bank passbook. To establish her relationship with her father, Jabed Ali, she submitted two certificates from the village headman, who has held that post since 1962.

In one of those certificates issued on 1 October 1997, 104-year-old Golok Kalita said Jabed Ali was a resident of the village. In another certificate from 5 November 2018, Kalita said Jabeda Begum was Ali’s daughter and also a resident of the village. She also submitted her PAN and banking identity card.

Gupta rejected all the documents. He said there was no electoral list to prove Jabeda Begum was Ali’s daughter. Kalita appeared as a witness. Gupta said since Begum’s name was not in the voters list, Kalita’s certificate could not be considered as a proof. Kalita told the FT that he gave the certificate after looking at the voters list. Gupta also said the PAN was only issued in 2017. Gupta did not go into other evidence.

Gupta’s order was upheld by the Gauhati High Court in February 2020. “In the instant case, the petitioner claimed that she is the daughter of Lt. Jabed Ali and Jahura Khatun @ JaheraKharan. She could not file any documents to link herself with her projected parents…” said the HC order dismissing her petition. Her appeal is now waiting to be listed at the Supreme Court.

The Gauhati High Court reversed only 3% of FT orders over nine years to 2019, and one in two people were declared foreigners because issuing authorities of documents failed to appear before the tribunals, according to a 2020 study of 787 high court judgement by researchers Leah Verghese and Shruti Naik of Daksh, a nonprofit based in Bengaluru.

The process is particularly harsh on women. Many women in rural Assam do not have birth certificates or school documents and marry before they register as voters. This means they have no document to link them to their parents.

In 2017, the Supreme Court ruled (in Rupajan Begum vs. Union of India) that a certificate issued by a Gram Panchayat secretary could be used as a “link document”, subject to verification, which meant the Gram Panchayat could confirm it had issued the document. Yet, "in 99% of the cases where such a document was produced, the person was declared a foreigner,” said the Daksh study.

“Merely producing a document is not enough,” SC Keyal, Assistant Solicitor General of India told this reporter in February 2020, explaining how, in his opinion, Begum had failed to prove the authenticity of her documents. The content of the document has to be verified and the author of the said document has to come to the witness box.” In Begum’s case, village headman Kalita testified and that, according to the law of evidence, should have been accepted.

Regardless of the details, Gupta told us he could not be accused of anti-Muslim prejudice in deciding Begum’s citizenship. As evidence, he cited the fact that he had declared 23 Muslims as citizens, including, on 31 May 2019, an Indian Air Force airman, Amir Khan, who was suspected of being an illegal.

“Every Indian is proud of Indian Army (sic) and armed forces and serving officers for their dedicated and patriotic commitment,” said Gupta. “I suppose that their resumes and credentials are thoroughly enquired, investigated and verified concerning their citizenship status.” In his order, confirming that Khan was Indian, Gupta wrote how soldiers have the “first right” on Indian citizenship.

Chakravarty thought otherwise when adjudicating on Sanaullah’s case.

‘Labourer’, Said Police, Not Army Veteran

In 2018, when an NRC draft was published, the former soldier was taken aback to find his name was missing. “Everyone was there,” said Sanaullah. “My brother's name was there, as were the names of my three sisters.”

He was told that a “foreigner” case was pending against him, which was why he was omitted from the draft.

On 23 May 2008 sub-inspector Chandramal Das of the border police claimed to have met Sanaullah at his village in Kamrup district and claimed that the former soldier confessed that he was illiterate and born in Kasimpur near the Bangladeshi capital of Dhaka.

An inquiry form signed by Das and the Superintendent of Police formed the basis of the case at the Boko FT. It described Sanaullah as a “labour” who entered through a “secret route” in search of a better life. It also listed three children and three other names of the witnesses.

Sanaullah visited the FT to clear the air. “I looked for old documents, and submitted my school certificate, pension papers, voters list of 1966 with my father’s name on it, land documents from 1957 and 1962,” he said.

He told the FT that the names of his children were not those mentioned by the police, that his height was not 5 ft and 1/2 inch as the report said (it is 5 ft 8 inches) and that he was a retired soldier, not a labourer.

Sanaullah produced copies of his service records, which said he was posted in Manipur between 2007 and August 2009. He said he had not met the inquiry officer on May 23, 2008, or July 27, 2009, as what he called a “forged and fabricated” inquiry report said.

His brother Barek Ali and friend Amanul Haque testified in the tribunal. Yaad Ali, a neighbour from his home village, told the tribunal he knew Sanaullah from childhood.

Abu Bakker Siddique, the assistant headmaster at the village high school, testified that both of them were contemporaries and the admission register had been destroyed in the floods—an annual affair in this part of the country.

Sanaullah also submitted his passport from 1994, service records, Electors Photo Identity Card (EPIC), and land documents, including a mutation--or change in the land title--from 1977 with the names of him and his brother after their father died.

Since his brother was alive and his citizenship was not in doubt, Sanaullah demanded a DNA test to establish their blood ties.

Yet, on May 23, 2019, he lost the case. Three days later on May 28, he was called to the police superintendent’s office. “I was told I would have to go to Goalpara (detention centre),” Sanaullah recalled. He spent the night at the police station. The next day, he was taken to the detention centre, which is housed in the jail.

‘My World Came Crashing Down’

“My world came crashing down,” said Sanaullah of his two weeks in detention as an illegal immigrant. “I cannot even describe how I felt then. I hope nobody, whether a Hindu or a Muslim, has to face this ever.”

He celebrated Eid in detention before being released on bail by 8 June following a Gauhati High Court order. By this time, the border police had started proceedings to “discharge” him from service.

Chakravarty, the member at the Boko Foreigners Tribunal did not consider Sanaullah’s allegation that the inquiry report was forged. She did not call the three witnesses the police mentioned in their report. These three witnesses later filed a first information report (FIR) against the inquiry officer, sub-inspector Das, claiming he forged their signatures.

Instead, Chakravarty picked holes in Sanaullah’s documents and asked him during cross-examination how he could have joined the Indian Army in 1978, a date that the FT order attributes to a record of his cross-examination and could likely be a typo, when he was 11 years old. Even if she were to believe that it was 1987—as his service documents record—why was he not, she asked, a voter in 1986, when he was 20 years old? But the voting age was lowered from 21 years to 18 only in 1988 through a constitutional amendment.

She also pointed out how in the 1989 voters list Sanaullah’s name was Marjyo Ullah, aged 25, not 22 if, as he claimed, he was born in 1967. She also asked how land could be transferred to him 1977 when he was just 10 years old.

Citing other doubts in a 19-page opinion, Chakravaty said Sanaullah had failed to prove linkage to his “parentage” and had failed to submit any proof that he was a citizen by birth.

According to Wadud, Sanaullah’s lawyer, Chakravarty cherry picked anomalies while ignoring admissible evidence--such as his name on a voter’s list and his army service records--that would establish Sanaullah’s citizenship.

A former judge of the Gauhati High Court who has dealt with foreigners cases and spoke on condition of anonymity, pointed out issues in Chakravarty’s order.

“Where in law is it mentioned that mutation cannot be in the name of a minor?” he asked, questioning why the land documents were not accepted.

Chakravarty stood by her judgement. “Opinion is given based on the documents and if the content of those documents are verifiable,” Chakravarty told this reporter during a brief meeting in 2019, refusing to say more, as she was not allowed to talk to the media.

Tribunals Ignore Legally Admissible Documents

Mustafa said FTs and courts were ignoring legally admissible documents and ignoring the law of evidence, under which even oral evidence is considered sufficient.

“They are taking a highly technical view,” said Faizan Mustafa, a lawyer, referring to the order against Begum by the FT and the high court. The documents submitted by Sanaullah and Begum should have been enough to get their names into the NRC, had they not been declared foreigners, which would automatically bar them from being in the registry.

Foreigners Tribunals were set up under the Foreigners Tribunal Order, 1964. In 1983, when the state was in the middle of violent protests against illegal immigrants, the Congress government of Indira Gandhi brought in a new law, the Illegal Migrant (Determination by Tribunal) Act, 1983, or IMDT.

The border police, founded in 1962, was originally part of the Special Branch and referred those suspected of being illegal immigrants to IMDT tribunals. After unrest spearheaded by students, the Centre signed the Assam Accord in 1985. India’s citizenship rules were changed for Assam and a special clause was inserted in the Citizenship Act.

This clause granted citizenship for those residents of Assam who migrated from Bangladesh before 1 January 1966; it allowed those who came between that date and 25 March 1971 to be eligible for citizenship after 10 years; and all those who came later would be illegals. The pact between the Centre and Assam nativist organisations promised to detect and deport illegal immigrants.

In 2005, the Supreme Court repealed the IMDT on a petition filed by Sarbananda Sonowal, now Assam’s chief minister, bringing the tribunals under the 1964 Foreigners Act, which placed the burden of proof on those suspected of being illegals. This anti-illegals infrastructure has since expanded and tightened. In 2009, the government started temporary detention centres, mostly housed in jails. The state intends to build 10 more.

The number of FTs increased from 100 to 300 in 2019 to deal with the NRC rush of appeals but 200 are not yet operational. An additional 221 members were appointed, of which 23 have either resigned or not joined even before the 200 new FTs could start functioning, an official said on condition of anonymity since he is not authorised to talk to the media.

Only 4 Deported To Bangladesh Over 7 Years

Amid allegations that the FTs are competing with one another to declare foreigners, there were 129,000 so declared by October 2019. Only four of these, since 2013, have been deported to Bangladesh. Since, the burden of proof is on the suspect, 63,959 persons were declared foreigners in ex parte proceedings, in their absence, the government told Congress Member of Parliament Shashi Tharoor on 2 July 2019.

To keep a check on orders that declared suspects as citizens, in 2016, the Assam government created “screening committees” of officials from the district administration and police. These committees examine FT orders and recommend to a state-level committee which orders can be challenged in the High Court or referred afresh to FTs. Court filings from February 2019 show the state-level committee recommended appeals in 438 cases; only 24 were filed.

Earlier this year, one official explained, on condition of anonymity, that one reason for not filing writ petitions was the passage of the new citizenship law and the ensuing confusion if the government filed petitions appealing the declaration of non-Muslims as illegal immigrants.

In 2017, allegations emerged that the services of 19 members of foreigners tribunals were terminated or their terms not extended after performance appraisals, according to a government affidavit to the high court that listed five parameters: cases disposed, percentage of cases disposed, number of foreigners declared, percentage of foreigners declared and “general views” of the government. The affidavit claimed the performance was assessed in the presence of the monitoring committee of the High Court, the action was taken in public interest and that it was not vindictive or unfair.

Most of those who declared less than 10% of suspects as foreigners were discharged from their duties. These members appealed to the Gauhati High Court, which ordered a fresh court assessment. The high court has worked with the government to monitor FTs. While the selection is made by the High Court, it is the government that appoints these members. The HC has a monitoring committee and a monitoring bench. FT members make four copies of their monthly disposal report—one each to the Deputy Commissioner, the Superintendent of Police, Home Department and the Gauhati High Court.

A standard operating procedure to deal with complaints against FTs has been prepared jointly by officials of the HC and the state government but it’s still pending approval.

In Gupta’s case, a state government official said on condition of anonymity, the next course of action will be decided after he responds to the show-cause notice. “Being the administrative department, we can take disciplinary action,” said the official. “Such complaints (of anti-Muslim bias) are rare,” the official explained, saying the complaints are brought to the notice of the High Court. “We get some complaints, and most of them are about corruption.”

Meanwhile, the government’s stance, articulated in a 2017 affidavit to the high court served as a warning of sorts. Among other things, the affidavit said the “government is of the view that the performance of the members is a key for the success of detection of foreigners in Assam”.

Asked if he was acting under pressure, Gupta said there was “no question of pressure”.

“We act as per law and decisions of higher courts,” said Gupta. “Our opinions are appealable in writ courts.” The High Court only has writ jurisdiction and not an appellate jurisdiction to scrutinise the orders of the FTs, which means it cannot re-examine evidence, only assess if justice has been served.

“There is no direct instruction from the government (to declare more on trial as foreigners),” said an FT member, requesting anonymity since he is not authorised to speak to the media. “But from the affidavit in Kartik Roy’s case, it’s clear how the government is judging our performance.”

Kartik Roy, who headed the FT at South Salmara, a Muslim majority district on the border with Bangladesh in lower Assam, was among those whose contract was terminated in 20 June 2017.

“My performance was found not satisfactory,” Roy told Article14. “Because I did not declare more foreigners.”

(Sadiq Naqvi is a freelance journalist based in Guwahati.)