As the Supreme Court prepares to hear a plea to release those jailed in Assam's six detention centres after the COVID-19 outbreak, the story of what it took to free an Assamese Muslim—like thousands of others—proclaimed a foreigner through doubtful means.
North Lakhimpur, Assam: Amena Begum and her husband, Itul Rahman, struggled to recall the day, month or year when they first received a notice from the Foreigners’ Tribunal.
But they did remember when the police came to pick up Amena, 48, from their quiet, country home in Kadam Tengabasti, 14 km from the district headquarters of North Lakhimpur in upper Assam.
“A Muslim man from the Border Police came and asked them to report to the Border branch,” said their nephew, Shahidur Rahman. “He assured them saying since he was also a Muslim so they shouldn’t worry.”
Kadam Tengabasti is home to 250 families, most Moriya Muslims, one of four indigenous Muslim communities in the state.
But once they reached the border branch in the North Lakhimpur Police Station, Amena was taken 220 km away to Tezpur Central jail, one of the six designated detention camps for those declared foreigners.
Neither she nor Itul were aware that she was declared a foreigner three years ago for failing to present themselves before the tribunal and prove her Indian citizenship.
Written in Assamese, the notice served by the Superintendent of Police of the North Lakhimpur police on 6 August 2013 said the Electoral Registration Officer for 112 Dhakuakhana had registered a case of doubtful citizenship against Amena. Although Amena has read up till class 4 in an Assamese medium school, she did not understand what the notice said.
The barely literate couple, with two working sons and two teenage daughters, hired a relative to fight their case in the tribunal. “But after taking our signatures and Rs 2,000 from me, we never heard from him again,” said Itul. “He promised to clear her name but failed to do so. I have stopped talking to him now.”
Amena’s brother, Sarafat Ali, who lives in North Lakhimpur town, said they weren’t even aware of the existence of a foreigners’ tribunal in their district before his sister’s arrest. “We thought the Border Police would be posted in areas adjoining Bangladesh,” he told Article 14. “Not here in the interiors of Assam.”
The Pandemic And The Imprisoned
In view of the global Covid-19 outbreak, the Supreme Court on 23 March 2020 ordered the release of prisoners convicted or charged with offences involving seven-year terms or less. Given the rapid transmission of the virus and the overcrowding in prison cells, a collective of lawyers from the Justice and Liberty Initiative in March 2020 moved the court to release 802 declared foreigners facing perpetual detention in six Assam detention centres.
Since last year, declared foreigners, who have completed three years in detention, have been released on a bail bond after activist and former bureaucrat Harsh Mander moved a petition on the unfairness of those declared foreigners, and effectively stateless, facing permanent incarceration because deportation to Bangladesh was uncertain.
The Ministry of Home Affairs told the Rajya Sabha on 18 March 2020, that 799 are incarcerated in detention centres; of them 95 are eligible for release. The rest wait for their case to either be challenged by a higher court or complete three years in detention.
Ashraf Ali, a small business owner in Dimakuchi (Darrang district), who spent two years in the Goalpara detention centre after being ex-parte—without being there, based on government claims alone—declared a foreigner in 2015, told Amnesty International India in their report, Designed to Exclude. :“Once we got there, we realized that it was not a detention centre but a jail. We were kept inside a room, which had a sign bearing it could hold a capacity of 40 persons. But there were already 90 people inside. There was no place for us to even squat.”
On 17 March 2020, the government told the Lok Sabha, Parliament’s lower house, that the Goalpara detention centre had a capacity of 370.
The Burden Of Citizenship
Unlike anywhere else in India, a quasi-judicial system of foreigners’ tribunals since 2006 requires residents of Assam suspected of being illegal immigrants from Bangladesh to prove they are Indian.
Amena’s case was a reference, transferred from the erstwhile Illegal Migrants Determination Tribunal, which adjudicated cases of foreigners from 1985 until the Supreme Court in 2005 struck down the 1983 Act of the same name.
With this judgment, the burden of proving citizenship fell on anyone suspected of being a foreigner under section 9 of the Foreigners Act, 1946. The petitioner in that case was Assam’s Chief Minister, Sarbananda Sonowal. The tribunals were constituted after a tripartite agreement, called the Assam Accord, signed in 1985, legalized the detection, deletion and deportation of “illegal foreigners” who entered the state after 25 March, 1971.
Like thousands of others, Amena was marked a ‘Doubtful’ or ‘D’ voter in the 1997 electoral rolls by the Election Commission of India. D voters and their descendants are among the 1.92 million (19.2 lakh) residents in Assam excluded from the National Register of Citizens (NRC), published in August 2019. Under NRC rules, citizenship for those excluded can only be decided by one of 300 foreigners’ tribunals set up by 2019.
Everyone in Amena’s family made it in the final NRC, except Amena, who said she remembered casting her vote the last time 25 years ago in 1995.
Although no demographic data is available on D voters, so categorised in 1993, 1997 and 2013, many believe that Bengali-speaking Hindus and Muslims were most affected. Amena is a Goriya ‘Khilonjia’ (loosely translated as indigenous) Muslim, a community that traces its origins to the Muslims of the seventh century capital city of Gaur in undivided Bengal, the ruins of which stand today partly in Malda district of West Bengal and Chapai Nawabganj district of northwestern Bangladesh.
Local lawyers and activists said that ethnic identity did not matter to the Election Commission or the Assam Police Border Organisation, who are tasked with identifying and reporting suspected foreigners to the foreigners’ tribunals.
A lawyer, who fights cases in the North Lakhimpur tribunal, told Article 14 that most of the bideshi (foreigners) cases were registered in villages under the Boginadi thana, where Amena’s village also falls. “Most foreigner cases from these villages are Assamese Muslims, who were marked doubtful,” he said, requesting anonymity.
To point out the ludicrousness of these references, he shared an example. “There’s a person who just turned 32 this year, but his case records show he was marked D in 1997, when he must have been 10 years of age.”
Mofizul Ali, the Kadam Tengabasti Anchalika President of the All Assam Minority Students Union (AAMSU), said the possession of documents makes little difference to the present Tribunal member.
“Whoever gets a notice now is declared a foreigner,” said Ali. “Even if you approach someone at the Bar Association, they will not take your case.” Despite several attempts to reach the North Lakhimpur tribunal member, she was not available for a comment.
Who Is A Foreigner?
Taken away from her home during the holy month of Ramazan, Amena said she spent most of the nine months of her incarceration in Tezpur Central Jail despondent.
“I used to cry missing my home and family so much that I got an infection on my left eye,” she said. “I was taken a couple of times to a hospital in Guwahati but never met a doctor.”
Amena is among 63,959 people in Assam declared foreigners in ex parte orders by tribunals between 1985 to February 2019, India’s Minister of State for Home Affairs told Parliament on 2 July 2019.
In 2017, the Gauhati High Court dismissed Amena’s case on the grounds that the writ petition was filed almost four years after without any explanation for the delay in approaching the court. But the court made no mention of the fact that she was picked up for detention three years after being declared a foreigner.
The justices invoked a 2013 high court judgment (State of Assam versus Moslem Mondel & Others), which held that if a person being tried does not contest the reference, it amounted to “failure in discharging the burden of proof”. The court restricted the scope of judicial review to jurisdictional errors and any violation of the principles of natural justice.
That the High Court would not entertain reviews of tribunal orders was criticized by Amnesty International India. Calling “the right to appeal as an essential element of a fair trial”, the human rights group said that “restricting nationality decisions to the exclusive competence of the executive, raises due process concerns as this leaves people more vulnerable to an abusive application of law”.
The Gauhati High Court dismissed Amena’s writ petition in 2017.
Hope Is A Neighbour
Hope for Amena came in the form of the owner of a local Punjabi hotel, Vijay Chopra, who connected her brother Sarafat with another lawyer.
“The owner got in touch with me after he heard about my sister’s case,” said Sarafat. “He was shocked to know that Amena was declared a foreigner since he had known us when we were little.”
The hotel was the very first lodge in town set up by Chopra’s father—Om Prakash Chopra, a military contractor whose family migrated from West Pakistan post partition—in 1958. Amena’s natal home, where Sarafat lives today with his family, is next door.
“When we were young, we used to play in their compound,” said Chopra, who lives in North Lakhimpur. “That girl, she was just like a small doll to me when I was in class 8 or 9. I still remember how she lost one of her fingers in an accident.”
“Sarafat came crying to me about his sister’s case,” said Chopra. “Since I knew them from childhood, I felt morally responsible to help them out.”
Typically, foreigner cases that get dismissed in the high court are taken for appeal to the Supreme Court but Bidhayak Acharya, a Guwahati-based lawyer, took an unusual route in Amena’s case.
He filed a review petition on her writ order, emphasising her poor health during the course of her trial in the North Lakhimpur FT. In a rare feat, the court set aside her ex parte order on the grounds of insufficient opportunity to prove her Indian citizenship.
On 17 February 2018, Amena was declared an Indian on the basis of her legacy (father’s 1966 voter list) and linkage (school certificate, kabinama or marriage certificate, land deed) documents. The member summoned the Headmaster of her school—also a rare occurrence—as a witness to testify on her behalf.
Amena testified that she did not get a copy of the State complaint against her. As per the guidelines laid down for the Border Police in the Moslem Mondal judgment, Amnesty International India said that “a person must be given ample opportunity by the investigating agency to demonstrate that s/he is not a foreigner at the investigating stage itself, before making a reference to the Tribunal”.
The Superintendent of Police (Border) could not be reached for comment despite several attempts to reach or meet him.
“I happened to see Amena’s form, which only had one line—‘No proper documents’ and that she’s from the Assamese linguistic background,” Acharya, the lawyer, told Article 14. “You cannot just send anyone to the tribunal”
Indegenous Vs Immigrant
When the names of Assamese Muslims did not make it to the final NRC, the All Assam Goriya Moriya Deshi Jaala Parishad objected to Assamese Muslims going to the foreigners’ tribunals to prove their citizenship. Its student wing, the All Assam Goriya Moriya Deshi Jaala Yuva Chhatra Parishad, even filed a First Information Report against former NRC State Coordinator, Prateek Hajela for “deliberately” excluding names of Assam’s indigenous people.
Hafizul Ahmed, President of the All Assam Goriya Moriya Deshi Jaala Parishad, told Article 14 that indigenous Muslims are confused with immigrant Muslims on account of religious identity ,even though culturally they had nothing in common.
“We had even requested Hajela to count us as OI (During the NRC exercise, “Original Inhabitants” was a marker for certain indigenous communities, for whom the bar of evidence was kept lower), which officials did in districts like Morigaon and Baksa,” he said.
In February, the Assam government announced a census, which would count all the Goriya, Moriya, Deshi and Jaala Muslims in the state. Only a few weeks ago, a centrally instituted committee had been formed, which included various representatives from Assam. They were tasked with devising recommendations for the Centre to implement under clause 6 of the Assam Accord, which promised constitutional safeguards to Assamese communities—something that representative groups believe indigenous Muslims must also receive.
With the census, Hafizul hoped, all foreigner cases against Assamese Muslims would be easily resolved. When asked why the Border Police would raise any suspicion with indigenous Muslims, he said: ‘They have certain targets to meet.”
However, in a North Lakhimpur, a district that borders Arunachal Pradesh, most foreigner cases are registered against Bengali speaking Hindus, lawyers who practice in North Lakhimpur FT told Article 14. They also mention that in the last two years, the number of declared foreigners has “massively increased” after a new member was appointed in 2018.
“Earlier I used to win all my cases but since the appointment of the new FT member in 2018, she has declared bideshi in all 700 cases on minor issues like discrepancy in spellings of people’s names and/or age”, said the lawyer who requested anonymity. “The burden of summoning a witness is also on the proceedee.”
An analysis of 787 high court orders and judgments by Daksh, a nonprofit based Bangalore, found that the court had agreed with the ex-parte orders of FTs in 99% of the appeals. Documentary evidence was found unsatisfactory in 66% of the cases, and documentation was rejected in 38% of cases because spellings or dates of birth did not match.
According to the lawyer, the previous FT member (who was a retired judge) was fair in appreciating the evidence and delivering opinions, yet was dismissed from the post along with 18 other members in 2017. “Maybe it’s because he did not declare enough people as foreigners,” he said with a smile.
Members whose two-year contracts were not renewed had a lower percentage of foreigners declared even if their disposal rates were higher, Scroll.in reported in June 2019.
Itur, himself a cataract patient entirely dependent on farming for sustenance, could not have afforded the cost of proving that Amena was not a Bangladeshi. “We got about 10,000 rupees from a Moriya sangathan (organisation) and small amounts from several other families in the village”, he said.
But it was Sarafat who did all the legwork, digging out documents, such as Amena’s school leaving certificate, primary school register and their grandfather’s jamabandi (land deed). Even to pay a nominal fee to the lawyer, he had borrow almost Rs 100,000 from a local bank.
Ever since, Sarafat has been driving a tum tum (e-rickshaw) to repay the loan. It will take him another year to pay it back in full, he said. For now, he’s content that Amena is at home with her family.
(Makepeace Sitlhou is a journalist based in Guwahati, Assam.)