By CSSS Fact Finding Team
“Citizenship is man’s basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen”, once said Earl Warren, a prominent jurist. His words rightly sum up the fate of millions of residents in Assam whose names are excluded from the draft list of National Register of Citizens (NRC) and the others who are in the detention camps in Assam declared as foreigners. More than four million citizens are excluded from the draft NRC list which was published in July last year. Simultaneously, the trials in the foreigners tribunals and subsequent sentencing of most of the accused to the detention camps after declaring them as foreigners has brought a state of panic, fear, and severe hardships including suicides to the citizens who are scrambling to dispel suspicion and stigma of being foreigners and to prove their citizenship, the source of all civil rights. In order to understand the process of NRC, the different perspectives on NRC and amendment citizenship bill and the difficulties faced by the people in this process, a fact finding team visited Assam from 13th to 16th June, 2019.
The team consisting of Irfan Engineer- author, social activist and Director of Centre for Study of Society and Secularism (CSSS), Prof. Dilip Bora, prominent scholar and Professor at Guahati University, Prof. Monirul Hussain, eminent scholar and Chair Professor of Centre for North East Studies and Policy Research at Jamia Millia Islamia, Hafiz Ahmed, social activist and educationist, Shahiuz Zaman Ahmad, scholar and activist and Neha Dabhade, deputy Director of CSSS, visited Guwahati and different villages in Goalpara. The team visited hearing centres for claims, hearing centres for objections, interacted with the officials at the centres like the disposing officers (DOs), the claimants and their families who were deposing at the centres, with journalists, academics, political leaders and members of civil society organizations. In the course of interaction, the team arrived at certain findings which will be elaborated below.
The conflict in Assam is old and not a new one. The issues which are foundational to NRC are not a recent development or rooted in post independent India. The conflict that culminated into the NRC is essentially communal and ethno-religious in nature based on hatred and paranoia against the Bengalis and Muslims. It dates back to pre-independent India ruled by the British when Assam was sparsely populated with massive tracts of uncultivated land. The state was rich in natural resources and fertile land. The British saw tremendous potential in terms of revenue from the state. For all practical and political purposes, the British encouraged cultivators from the over-populated province of Bengal to Assam to settle there and cultivate land. Large number of Bengali and other cultivators were encouraged to migrate to the tea gardens too. These migrants also included many Muslims. The immigrant Muslims and other Bengali Hindus settled in Brahmaputra valley accepted Assamese language and culture and denounced their Bengali identity to assimilate with the host community. As early as the 1930s, the immigrant Muslim community appealed to the colonial administration to enroll them as Assamese speaking Muslims in the census of 1941.
Yet the Bodos, the original tribe in Assam and the indigenous Assamese were gripped with an irrational fear that the Bengali Muslims and Hindus whom they considered foreigners were a threat to them. The Bengali Muslims and Hindus, who were expert cultivators, were given land in ownership by the administration. The migrants were also flourishing traders, in industries, bureaucracy and media. This domination of the Bengalis encouraged by the British policies was bitterly opposed by the Assamese and particularly the Assamese middle class. This fear of losing land, identity and culture to the immigrants soon transformed into conflict in the 1920s. The persistent agitation led the British to draw arbitrary borders in Assam under the line system, which barred the Muslims from settling down in certain regions of the state. These arbitrary borders were viewed by the immigrant peasants as a form of apartheid and there were protests but the line system stayed. So did the festering hatred against the Bengali Muslims and Hindus amongst the Assamese.
The power struggle continued and in fact became worse in the build up to the partition. The Muslims faced large scale communal violence and displacement. Thousands of Muslims fled the country to take shelter in then East Pakistan through the open border. However the Nehru-Liaqat pact gave them an opportunity to return back to Assam. The anti-Muslim sentiment gained rigour and the Assamese agitation continued. In late 1960s, several thousand Muslims were forcefully deported to East Pakistan under a draconian scheme called ‘Prevention of Infiltration from Pakistan (PIP)’, without following any legal mechanism of detection and deportation. The border unit of Assam police used to deport hundreds of Muslims without any hue and cry. But the agitation continued full-swing based on false propaganda and constructed xenophobia.
This agitation took a bloody turn with violent protests by the All Assam Students Union (AASU) eventually culminating into the Assam Accord in 1985. The AASU movement targeted the Bengali speaking Muslims as well as Hindus. But over the years and especially in view of East Pakistan’s struggle to gain independence, this anti- migration movement has assumed an anti- Muslim character leading to the Nellie Massacre which claimed lives of thousands of Muslims in Assam. At the peak of this anti- Muslim and anti- migrant sentiment, based on the Assam Accord, the Illegal Migrants Detection Tribunals (IMDT), 1983 was passed only for Assam. The aim of the Act was to detect illegal migrants in Assam and expel them. However, in IMDT Act, the onus to proof that an accused person is a foreigner was on the person who levels the accusation. The number of detections under this Act was very small since adequate evidence was required to declare an accused as illegal migrant. The fewer number of detections of foreigners also went against the unfounded and exaggerated claim that that the numbers of Muslim and Bengali Hindu migrants were so high that they were changing the demography of Assam.
This lower detection led to Sarbananda Sonowal, ex BJP Chief Minister, to approach the Supreme Court to strike down the IMDT Act which was eventually struck down by the Supreme Court in 2005. Around the same time, in 1997, the Election Commission undertook a verification exercise in which voters were asked to produce documents that would establish they had come to Assam before 1971. Those who could not produce documents were marked as D-voters. Again this process was arbitrary and no procedure or safeguards were laid down. Innocent Indian citizenships were randomly declared as D voters and referred to the Foreigners’ Tribunals.
In the meanwhile, the Supreme Court in 2013 ordered the state to carry out the process of updation of NRC. Thus two simultaneous processes of NRC monitored by the Supreme Court and detecting foreigners under the foreigners Act in the foreigners’ tribunal are under way in Assam. These two processes are guided by two different laws- Citizenship Act, 1955 and Foreigners’ Act, 1946. Though both these acts determine citizenship in India, they are distinct in their intention and historical context. The Foreigners’ Act is a pre-independence law grounded in undivided India having different borders than today, which was passed to identify foreigners and regulate their illegal stay in India. Based on this law, the undocumented foreigners who were distinctive in their appearance, language and facial features were identified and their stay in undivided India regulated. The burden of proof in this case was upon the person accused of being a foreigner to prove he/she was not a foreigner. In contrast, in the Citizenship Act, lays down different provisions which determine citizenship of an individual.
Based on the Foreigners’ Act, 1946, after partition, the border police in Assam started a witch hunt targeting innocent individuals especially Bengali Muslims arbitrarily and labeling them as foreigners. Cases were being filed against individuals merely because they have Muslim names. These cases were bogus and baseless since the border police’s report was completely fabricated devoid of site visit or home visit to verify the truth. It was next to impossible to detect any person as a “Bangladeshi” because they have the same facial feature, color, language, culture etc. Yet there was a random targeting of individuals as foreigners. This arbitrariness is also a result of the pressure to label maximum people as foreigners by the political bosses. This ordeal still continues as this process is still under way.
The second parallel process is that of NRC which somewhat is drawn from the Citizenship Act. The NRC in Assam is being updated based on March 24, 1971 cut-off date. This means individuals, who migrated to India illegally after March 24, 1971 and settled down here, will be viewed as illegal immigrants. Now the NRC requires each resident to submit two out of a list of 14 documents- legacy documents proving that the person or the generations before have settled in Assam from before the cutoff date and linkage document to show relationship with the legatee. Though the process is driven and monitored by the Supreme Court, the BJP is taking credit for the same. This is ironical given the tongue lashing the SC gave even to the BJP government for its sluggish pace to implement the process. It supports the Citizenship Amendment Bill which privileges Hindus, Christians, Sikhs, Buddhists, Parsis and Jains from Pakistan, Afghanistan and Bangladesh to acquire Indian citizenship with ease. This fits in with its agenda of majoritarian Hindu Rashtra.
The findings of the Team given below have to be understood in this context in all its complexities, communal undercurrents and chequered history. The contours of the conflict have kept shifting from before the independence till date but the underlining contention is the same- decitizenizing Muslims and stripping them of all rights out of cultivated and festered paranoia for political reasons.
Burden of proof:
The most contentious principle which is central to NRC is that the burden or onus of proof to prove that he/she is an Indian citizenship lies with that person. This is quite contrary to general jurisprudence where the burden of proof lies with the person who accuses. An exception to this general jurisprudence is made in the Foreigners Act as mentioned above. Journalist Gaurav Das elaborated some of the problems faced in this process. He explained that majority of the people in Assam are dispossessed, illiterate and poor. There is no concept of documents and ownership of land in the traditional life of the tribes. Due to the changing course of the rivers and floods, homes are destroyed making maintenance of documents almost impossible. There are no hospitals in shore areas thus making it impossible to acquire birth or death certificates. Citizenship is to be proved through proving legacy and providing a family tree. However it is noticed that due to a variety of reasons including personal and family feuds and enmity, it is not easy to get all the relatives in the family tree to the hearings or get hold of all the documents if one is estranged from the relatives or family. For example, the members of the transgender community generally severe ties with their family and live in a community. It is very difficult for them to go back to their families and seek help in terms of the documents.
Similarly, Anup Sharma, another senior journalist, pointed out that the state did little to create awareness amongst the citizens about the process or the documents needed. Government gave advertisements in the newspaper. But in the shore and rural areas, either the citizens have no access no print and electronic media or are illiterate. Only the local organizations organized camps and awareness campaigns to help the people in April. But it was too late and too little. The exclusion has led to fear and panic amongst them.
- Claims and objections:
So far like mentioned above 40 lakhs people have been excluded from the list. Out of these, approximately 15 lakhs are estimated to be Muslims and 25 lakhs Hindus and tribes. In addition, an additional draft of 1.02 lakhs names was published on 26th June which excluded more names. This exclusion is primarily due to their cases being heard in the foreigners’ tribunals. The persons whose cases are pending in the foreigners’ tribunals are not eligible to submit documents or apply in the NRC process. The NRC has a provision where other residents can file objections to the inclusions to the list provided that objector can prove why the particular person should not be included or how he/she is a foreigner. They have to give their details like their name, address etc and also be present for the hearings when the cases of the objections are heard at the hearing centres. The last day to file objections was 31st December, 2018. Till 30th December, only 700 objections were filed. However by 31st May, in a span of one day, 2.5 lakhs objections were filed.
Har Kumar Goswami hails from Barpeta district but settled in Guwahati now. His name was included in the first draft of NRC. But he was informed by a person in Gampura Village that a notice was served there summoning him for hearing as an objection was filed against his name being included in the NRC by one Rahul Sutradhar and Dhanmani Kakhoti. Goswami doesn’t know these two objectors. A visibly upset Goswami felt humiliated and bewildered. He explained that Goswamis was a typical Assamese surname and they are considered as one of the long settled inhabitants of Assam or part of the “mainstream”. He considered it humiliating to go for the hearing since the onus to prove the citizenship of a person should be with the state and not the person in question. Goswami has filed a FIR against the complainants and also demands action against the NRC officials who accepted this complaint of objection. But no action has been taken against them. Like Goswami, many of the persons against whom objections are filed find it ludicrous and outrageous. While the names of the rest of the family members are in the list, their names are objected to. They have to travel with their whole family to the hearing centre just to prove their citizenship. After going through this ordeal and reaching the hearing centre, it is commonly found that the objectors are not present thereby reinforcing the suspicion of bogus objections with a view to harass.
Similar harassment is faced by those whose names have not been included in the first draft of NRC. Oddly, while the names of other family members of the family make it to the NRC draft list, single or couple of names are excluded. The reasons for exclusion are as trivial as wrong spelling of the name and misunderstanding about the name. For example, Fulbar Ali, 16 years old, son of Sultan Ali Mahmud travelled with his family of 12 members since his name and that of his sister (14 years old) was excluded from the draft list. Both his and his sister’s names were wrong in the documents they had submitted. Fulbar lost the school certificate he had submitted as a proof document so the family had to get another one made from the school. Fulbar’s parents are daily wage workers. His grandfather who traveled with him for the hearing is paralyzed below the waist. They had to hire a private vehicle to travel for the hearing which cost them INR 6000 and also one day’s wages which is significant given that they have a hand to mouth meager existence. They arrived at the centre at 9am and were waiting for their turn for hearing even at 4pm. They were unsure if they will get their turn to depose today- only the officer will be able to tell. If they didn’t have their turn, they will return home and come back the same way next morning.
The hearing centres have no place for the claimants and families to sit. The claimants and their families were sitting on the ground inside and outside the centres since there were no chairs or benches. Women had come with their babies and small children strapped on them all day long and even breastfeeding them in open on the ground amidst garbage and rain water. Some claimants who were rabhas (tribes) couldn’t understand Assamese and the language of officials of the NRC centres and vice versa. Due to incomprehension, the claimants were seen merely nodding their heads. The claimants, mostly poor daily wage workers came from as far as 700 kilometers with their entire families for the hearing. This is causing monetary loss and hardships to the citizenships. The statements written by the officials that have to be signed by the claimants are not understood by the claimants due to illiteracy and lack of education and awareness and signed blindly by the claimants.
- Bias against Muslims:
Though the tribes are facing hardships in this process, according to activists and scholars, the process betrays a clear bias against Muslims. To begin with, the figures itself indicates towards the bias. Out of the 40 lakhs excluded from the draft list, 15 lakhs are Muslims alone. Subsequently, objections are filed against 70 % of Muslims. The team was told that areas like Sibsagar and others which have majority of Hindu populations; the documents from such areas are not scrutinized strictly. On the other hand, documents from Muslim majority areas are scrutinized strictly. The Muslims due to illiteracy and poor educational backwardness find it difficult to understand and comply with the system completely. As explained by Hussain Ahmad Madani, social activist who has worked on more than 20 ‘D’ voters cases, Muslims often change names or there are mistakes in spellings of the names. Sometimes the authorities deliberately make typographical errors leading to mistakes in the names. To further elaborate on the arbitrary behavior of the officials with the Muslim claimants, he narrated an incidence where the Muslim claimant was asked about the sequence of serial numbers on the identity cards of family members two generations older! This is absurd and nobody would be able to furnish such information.
Some of the officers are also biased and thus they treat the Muslims with contempt. They discriminate against Muslims on the basis of their appearances and dressing. Lungi wearing and beard sporting Muslims are targeted. They are already assumed to be “Bangladeshi” before the due course of process. In fact the system supports such bias and discrimination. According to Jaynal Abedin, ex MLA and retired Professor, his brother in law and son in law, both DOs, were served with show cause notices. They were targeted for having admitted all the cases of exclusions/claims and not dropped any case. Thus, honest and sensitive officers are being penalized. There is tremendous pressure on the DOs to declare the claimants as foreigners.
The DOs that the team interacted with laid down before the team their own hardships. The DOs are usually professors and their assistants are school teachers. They are assigned the duty of NRC at a short notice, some even asked to join duty over SMS. They are not adequately trained for this long drawn process. Some teachers retired from their services while working on the NRC. While they are given NRC duty, they told the team, no alternative teachers are hired at the school or college which as it is has few staff. This is adversely affecting the quality of education of the children at the educational institutions.
The Muslims are willing to go through the process
While most of the excluded are Muslims and have to undergo stigma and hardships, they are still willing to undergo it all in order to get rid of the stigma attached to the label of “Bangladeshi” and “foreigners”. They want to prove their citizenship and rise above the stigma they face on daily basis. Thus though they complained about the problems they faced throughout the procedure, they are determined to follow it and end the suspicion for once and for all. They have been pushed to the margins and risk losing their citizenship. Thus the community has worked hard to get its documentation in place. Hussain Ahmad Madani informed the team that there was one Muslim family which had to depose at five hearing centres causing them considerable harassment but the family was determined to complete the process.
While the NRC gives opportunity to be included in the NRC, the foreigner’s tribunal offers no hope of inclusion or justice:
As seen above, NRC process is full of loopholes. It is also arbitrary to some extent. But the people in Assam especially the Muslims have hope and faith in the process. The process is monitored by the Supreme Court and thus there is some hope of impartiality and systematically laid down procedures. The NRC with all its flaws still offers a window to the citizens to be included into the list and get rid of the stigma of a foreigner. The officers are also regulated by some rules. There are remedies and opportunities of hearing and appeal. This is in stark contrast with the process followed by the Foreigner’s Tribunal. Though the tribunals have been in place since 1964 and the stories of the inmates have been heart wrenching, the dark and completely outrageous side of Foreigners’ Tribunals came into open with the arrest of Mohammad Sanaullah, ex army officer and Kargil war veteran owing to his army service background.
The Foreigners’ Tribunals came into existence in 1964 under the Foreigners (Tribunal) Order, 1964. A parallel process has been in place in Assam for decades – the border police, who investigate cases and refer them to the Foreigners’ Tribunals, set up under the Illegal Migrants (Determination by Tribunals) Act, 1983. Although the Act was struck down by the Supreme Court as unconstitutional in 2005, the tribunals remain operational as quasi-judicial bodies that determine citizenship under the Foreigners’ Act of 1946. If the Border Police finds anyone`s citizenship doubtful, they can refer the matter to Tribunal for inquiry. If the tribunal declares the person as foreigner, he or she is sent to the detention camp. Deaths have been reported from the detention camps which as activists have described are more of district jails with appalling conditions than camps. Cases of suicides are reported across Assam after residents are declared foreigners facing the prospects of spending the rest of their lives locked away in the detentions camps separated from their beloved family members. The government has ordered construction of more detention camps and foreigners tribunals. Ironically, this is seen as a precursor to the exclusion of large number of citizens outside of the NRC final list since those excluded have the option to appeal to the Foreigners’ tribunals for hearing within 60 days of the publication of list or if they don’t, the state will refer their cases to the Foreigners’ tribunals. And the Assamese people have little faith in the foreigners’ tribunals.
Therefore it is significant to problematize the foreigners’ tribunals:
- Problematic role of the police
The border police file cases against the suspected persons. It is their job to identify the foreigners. But the team was told that the border police arbitrarily identify innocent Indian citizens as foreigners and file cases against them. The border police are also under political pressure to identify more and more people foreigners.
- Service of notice
Any trial is fair when the person accused is served a proper notice and when he/she are intimated about the charges and trial. But most of the times, the notice is served at some conspicuous place in the village like under a tree or in a village square and not at the address of the accused. Thus the accused does not in fact receive the notice and therefore can’t depose at the tribunal to present his/ her case at the given date. Once a notice is issued, the accused is bound to appear before the Tribunal. But if the accused failed to appear before the Tribunal, he or she will be declared foreigner by the Foreigners tribunal ex-parte. This is gross injustice. Often the foreigners’ tribunal assigns the serving of the notice to the border police itself who have arbitrarily identified the person out of malice and wants the person to be declared a foreigner. Most accused come to know about their status as declared foreigner after the police comes to arrest them!
- Composition and procedures of the tribunal:
The tribunals are quasi-judicial bodies. As explained by Mr. Abedin, the High Court is appointing young and inexperienced lawyers having law degrees on contractual basis for two years on the tribunal. This contract can be extended subject to the “performance” of the officer. The unwritten message is that he/she has to declare maximum applicants as foreigners. These law graduates generally hail from AASU which has essentially driven this process based on xenophobia and discrimination.
Therefore the tribunals don’t consist of legal experts who are training or having fixed tenure. The tribunal has the powers determine its own procedures to expedite disposal of cases. Many a times, the officials are seen to be blatantly biased against Muslims and Bengali Hindus and declare them as foreigners merely if the accused have Muslim surnames or Bengali sounding surnames or based on their dress and appearances without giving them a fair opportunity to present their case. This is against natural justice and a mockery of established legal principles.
Does the Foreigners Tribunals offer hope after exclusion from NRC?
The persons excluded from the NRC final list have 60 days to appeal to the foreigners’ tribunal to get a hearing and a chance to be declared a citizen of India. If the person excluded doesn’t appeal in that period then the state itself will refer the case to the tribunals. But given the nature and the bias of the tribunals, the Assamese have little hope for justice from the tribunals. Khaddam Hussain, lawyer and social activist who is handling cases at the tribunal feels that tribunals will declare most applicants as foreigners as they have been doing so far. He suspects that around 5 million persons will be excluded from the final NRC list. If the person is still not satisfied with the outcome at the tribunal, he/she can appeal in the High Court under its writ jurisdiction. However, the High Court’s scope of interference is limited and it can merely issue the writ of certiorari for correcting errors of jurisdiction, as and when the Tribunal acts without jurisdiction or in excess of it, or fails to exercise it or if the Tribunal acts illegally in exercise of its undoubted jurisdiction, or when it decides withoutgiving an opportunity to the parties to be heard or violates the principles of natural justice. The certiorari jurisdiction of the writ Court being supervisory and not appellate jurisdiction where facts can be reassessed and re-appreciated, the Court cannot review the findings of facts reached by the tribunal. Thus the decision by the tribunal will very much spell doom for the declared “foreigners”.
What happens to those excluded from NRC and subsequently declared “foreigners”?
It is not stated by the state or the Supreme Court what fate lays ahead for the persons who will be excluded from the NRC and declared foreigners by the tribunals. What is ominous is that the state has ordered construction of more detention camps. There is no possibility of deporting these “foreigners” since India doesn’t have a treaty to that effect with Bangladesh from where it claims the foreigners have come from. It seems that such a large number of persons, mostly innocent Indians will be incarcerated in prison like detention camps indefinitely depriving them of their most basic rights. The Citizenship Amendment Bill (CAB) that is being pushed by the BJP which ensures citizenship to persons of all religions except to Islam. CAB has thus sharpened the divide between the Muslims and Hindus by privileging the Hindus over the Muslims and determining citizenship on the basis religion. The issues around citizenship like NRC and CAB are being exploited by those in power to polarize the society along religious lines for electoral gains and political hegemony. But this comes at the cost of millions of innocent lives caught in the barbwire of this divisive and hateful politics.
Recommendations of the Team:
- Objections filed on the last day which were clearly politically motivated and baseless without details of the objector should be dismissed. The person’s name against whom the objections were filed and the objector wasn’t present for the hearing should be included in the NRC final list by default.
- Citizenship Amendment Bill is against the secular state and attempts at establishing ethno- religious state by privileging other religions over Islam and excluding Muslims. Thus this Bill should be withdrawn.
- The poor, labourers, residents in riverine areas and tribes who have collective ownership of land should be exempted from producing documents for NRC since they have no access to them. The state didn’t facilitate building of primary health care centres or schools etc to get birth certificates or school certificates in the first place.
- There should be no detention camps. The so called “foreigners” should be allowed to stay with their families, given work permits and allowed to lead a normal life.
- The Foreigners Tribunals which will be a forum for appeal after being excluded from the final NRC list should be regulated with systematically laid down rules which will ensure fair trial and justice.
Citizenship in Assam is a long contested issue shaped by forces of migration, partition and movements based on communalism, xenophobia and hatred for the “other”. This conflict will not end with NRC but will take different forms as long as the hysteria and paranoia against the Muslims persist. Different instruments will be reinvented to dehumanize and decitizenize the Muslims so long as the hatred exists. It is miscarriage of natural justice when millions of citizens are put through the harrowing labyrinth of documents and legal process to prove that they rightfully belong to the country they have lived in all their lives, served and called their home. Post independence, India is governed by the Indian Constitution which is secular and gives rights to its citizens to settle in any part of the country. India belongs to all its citizens equally. As much as one is sensitive to the need to preserve the autonomy, identity, cultural traditions and livelihood of Adivasis, it doesn’t justify or call for decitizenization and violence against any community. Processes like NRC are based on narratives erected on hatred, stigma and majoritarianism which seek to strengthen binaries and intolerance in a democracy. More significantly these processes are tearing apart the social fabric of the state by institutionalizing exclusion and discrimination. Determination of citizenship in a country on the basis of religion is a dangerous precedence which weakens the very edifice of a secular and plural democracy.