‘Foreigners’ in Assam tribunals are just unlucky Indians fighting cruel paperwork demands

As more people are forced into Assam's uninhabitable detention camps meant to keep ‘illegal Bangladeshis’, detainees look up to Supreme Court for relief.

A family currently in a detention centre in Silchar | Ruhi Tewari/ThePrint

Life in Assam can change within a matter of few questions. A person can be randomly stopped, asked to prove ‘citizenship’ — and by the time permission to walk back to home arrives, a decade or so may have passed. Many lives in Assam have changed just like that, and many more will likely end up similarly — years spent in ‘detention centres’.

Assam’s six detention centres are those unlivable places that house close to a thousand people who have failed to prove that they are Indian citizens under the country’s draconian law, the Foreigners Act, 1946. Four people have died in the past one year, including 58-year-old Basudev Biswas who died Saturday last week — a day after the Supreme Court ordered for conditional release of detainees held up for three years and more. Biswas was lodged in a detention centre in Tejpur since 2015.

Basudev Biswas was declared a ‘Bangladeshi’ by a foreigners tribunal, a quasi-judicial body that takes call on people’s citizenship status after verifying their documents. Assam has 100 foreigners tribunals, governed by the colonial-era Foreigners Act, under which the burden of proof is on the “accused” person. When the police took Biswas’ body to his family, all of them Indian citizens, the members refused to accept it, saying the police should take the body to Bangladesh, the country they had declared Biswas a “citizen” of and where his “home” must be.

Many of those who are forced into these centres think about ending their lives. “I wanted to commit suicide several times in, but the thought of my daughters stopped me,” says Dilip Biswas, who spent nine years in various detention centres away from his wife Ramani Biswas, and their two minor daughters, who were housed in a separate centre. The family was reunited after the high court’s intervention led to their release in January and February – 14 days apart from each other. 

Narrating his ordeal, Dilip Biswas says, “We should not criticise the food, but what’s served at detention centres is not edible. The rice is not enough and we mostly starve.” His wife Ramani’s parents had passed away while she was in detention, but she could not attend the last rites because “declared foreigners” are not entitled to parole.

Becoming ‘illegal’

According to an affidavit submitted by the Assam government before the Supreme Court, there are 823 “declared foreigners” (proclaimed as such by the tribunals) and 115 “convicted foreigners” (held guilty under Passport Act for overstaying and under various sections of the Indian Penal Code) held up in the state’s six detention centres.

The affidavit also says that until 13 March 2013, the government had a “push back” system but since then it formally started deporting people. Until 2013, the government had “pushed back”  2,445 “declared foreigners” and 27,218 “convicted foreigners” into Bangladesh, often opening possibilities of them being left in a limbo because Bangladesh would resist their entry. Since 2013, the government has formally deported 162 “convicted foreigners” and only four “declared foreigners”.

Two kinds of cases are tried before the foreigners tribunals. First are those that come by the way of the Assam Border Police Organisation, which has its presence in all police stations across the state. If officers come across any “suspected citizen”, they are expected to ask for citizenship documents and give the person reasonable time to submit them. If the person fails to provide the documents, the border police is empowered to send ‘reference case’ (similar to a charge sheet) to the foreigners tribunal.

In reality, though, the officers randomly pick people and frame them as “illegal migrants” without any investigation whatsoever. Decorated army officers and members of the police force have found themselves being declared “illegal migrants”. Mohammad Azmal Haque was asked to prove his citizenship after having served in the army for 30 years. The matter was dropped following national outrage. Others aren’t so lucky. Brothers Sahidul Islam, Delbar Hussain (both armymen) and Mizanur Rahman (a CISF personnel) were served notices by the foreigners tribunal in February to prove their citizenship. Their cases are still pending.

Second are those that the Election commission of India has designated as ‘doubtful’ (D-voters). The EC had launched a “strict scrutiny” of the voters’ list in 1997. Since then, if any person is unable to submit valid citizenship credentials, they are termed as “dubious” or “doubtful” with a ‘D’ marked against their name. They are disenfranchised and denied government benefits such as those under the public distribution system. Such cases then land up at the foreigners tribunals, which give out the verdict on whether the person is a “citizen”. In March this year, Assam’s electoral office had said there were about 1.2 lakh D-voters in the state. Majority of the “D-voters” are women. That the process is often arbitrary and random can be gauged from the fact that in the past, Air Force officers and even election officers have been marked as “D-voters”. 

When a case reaches the foreigners tribunal, a person has to appear before it with relevant documents to prove his or her citizenship — and failure to do so will bring the ex-parte order: declared foreigner without being heard. Until December 2016, the tribunals had declared 80,194 people as foreigners — 26,026 of them through an ex-parte order. The total number of declared foreigners as of February 2018 stood at 93,399.

Citizens’ lost years

Those who challenge the case either manage to get the citizenship status or are declared foreigners on hyper technical grounds — inconsistencies in names and age in different voter lists, lack of certain documents strictly according to evidence law, minor contradictions in deposition of defense witness, and weak legal representation among others. Even typographical errors can cost citizenship.

In most cases, it’s the poor and illiterate who find themselves being branded as “illegal migrants”.

Moinal Mollah’s parents were proven Indian citizens, but Mollah himself was declared a foreigner by an ex-parte order and subsequently sent to Goalpara detention centre. The Supreme Court remanded his case back to the foreigners tribunal in Barpeta, where, following a trial, he was declared an Indian citizen. By the time Mollah was released, he had spent 2 years and 11 months in detention.

Ashraf and Kismat Ali were marked as D-voters, declared foreigners by an ex-parte order and subsequently detained in 2015. The Supreme Court asked the Central Bureau of investigation (CBI) to verify their documents. The CBI found that Ashraf’s documents were from Siwan district of Bihar and Kismat’s from Deoria district of Uttar Pradesh. The case was remanded back to the foreigners tribunal, which declared both of them as Indian citizens. Their freedom came after two years and two months in detention.

When Rehat Ali appeared before the tribunal, he learnt that he was named Rehat Ali in some documents and Rehaja in one, while his father was named Moinuddin and Monu in different documents. As a result, Rehat Ali was declared a foreigner. He was subsequently arrested and sent to Goalpara detention centre. Rehat Ali knew there were inaccuracies in how his name appears in documents but these are common factors associated with documents issued by the government. Significantly, Rehat Ali’s sister was declared an Indian citizen based on the same set of documents related to their father. The Supreme Court asked the tribunal to investigate Rehat Ali’s documents and submit a report to the Gauhati High Court. The tribunal conducted a detailed investigation and sent a report to the high court stating that Rehat Ali was an Indian citizen. After spending three and a half years in a detention centre, Rehat Ali walked free on 7 May.

The bottom line is this: a person being declared a “foreigner” by the tribunal does not necessarily mean he or she had entered into India illegally. It only means that the person could not prove his citizenship under a draconian law, which allows little room for errors in documents.

SC’s ray of hope for detainees

The Supreme Court’s order last week to release those detained for three years and more has put an end to indefinite detention. This means that people like Azgar Ali, who would have been detained indefinitely, can now look forward to getting released, which will happen only after 14 July 2020, albeit with conditions.

Azgar Ali hails from Kolkata. He came to Guwahati to work as a carpenter, and found himself marked as a D-voter. When his case came before the tribunal, Azgar Ali submitted various documents, including his father’s 1966 voters’ list and passport. The tribunal found variation in the name of his father and rejected the voters’ list stating that it has not been issued as per Section 76 of the Evidence Act. Azgar Ali was declared a foreigner on 14 July 2017, and since then he has been languishing in the Goalpara detention centre.

On 10 May 2019, Azgar Ali’s special leave petition was dismissed by the Supreme Court. Since detainees are not entitled to parole, Azgar Ali has not been allowed to go to Kolkata to see his 80-year-old father who is suffering from cancer, and his diabetic mother who has lost her eyesight. The Indian parents’ only wish is to see their son — the son who has been unable to prove that he too, like his parents, is an Indian citizen.

Ever since the detention centres have come into being, “declared foreigners” have gone through unimaginable ordeal. When people are stripped of their citizenship, they not only lose the right to call themselves Indian citizens, but they also lose almost all the rights enshrined in the Constitution of India. Although “declared foreigners” are technically not citizens, the Articles 14 and 21 of the Constitution apply to both citizens and non-citizens. The right to live with dignity is a fundamental right, and Assam’s detention centres are the last place to live and die with dignity.

The author is a lawyer at Gauhati High Court and is helping many who are struggling in Assam’s detention centres. Views are personal.