19 lakh 'foreigners' to be excluded, detained or deported? Govt of India has 'no clue'

By Teesta Setelvad*
Today, 41 years later, in a much-changed India where an ultra-right government is firmly in the saddle, the discourse has been twisted cleverly to identifying ‘foreigners’ and ‘infiltrators’. It is this peculiar, and seemingly parochial, precondition that has to be factored in to understand how and why a wide consensus developed around the process of a ‘free and fair’ National Register of Citizens (NRC).
Terms like ‘genuine Indian citizens’ have now emerged  to form an integral part of the wider humanitarian discourse within Assam. But the process of finalisation of NRC has been closely monitored by the Sureme Court since 2009. It actively began since 2013. On August 31, under this monitoring, the NRC coordinator declared the final list. What lies ahead for the 19,06,657 persons excluded? What is likely to be their plight in the coming months and what of their fate eventually?
At a hearing on July 23, 2019, the apex court monitored process was thrown open to groups working on the ground for ‘suggestions.’ The court, in its wisdom, did not interfere with a flawed conclusion arrived at by the NRC coordinator, Prateek Hajela.
In a deeply problematic order, Hajela suggested the exclusions of countless persons born in India prior to June 30, 1987 on the ground that one parent of such person is either a “doubtful voter (DV)”, or a “declared foreigner (DF)”, or a “person whose claim for citizenship is pending before a Foreigner’s Tribunal (PFT)”. This was clearly violative of Section 3(1)(a) of the Indian Citizenship Act, 1955.
These are persons who have lived in the country for several decades, and now, thanks to this, risk being declared stateless because of a deeply flawed process. Section 3(1)(a) of the Citizenship Act, 1955, mandates that every person born in India between Republic Day 1950  and June 30, 1987 shall be a citizen of India by birth. Yet the coordinator and, thereafter, even the Supreme Court decreed that they would ‘exclude’ such persons despite the existence of Section 3.
Thus lakhs of persons born in this category, that is between 1950-1987, have been excluded simply because one parent of such a person is either a “doubtful voter” or a declared foreigner” or a person who’s claim is pending before a Foreigners' Tribunal. This order was passed by the Supreme Court on August 13.
The matter will now be finally decided by a Constitution Bench. Initial reports suggest that, among 40-60 per cent of those excluded include those from such an abovementioned category whom the latest directives of the Supreme Court had signed a death knell to.

Filing appeal

Appeals of all the 19 lakh excluded will now have to be filed under the stipulated 120 days before the Foreigners Tribunals set up for the persons. To file such an appeal, each person will need to access a certified copy of the exclusion order and list of documents submitted by her or him to the NRC. Will the deadline of 120 days start ticking after these documents are accessed as is just and fair? Clarifications are awaited.
Details of the modalities and nitty-gritties of filing the appeals are eagerly awaited. Of special concern will be the issue of areas of jurisdiction. Of particular concern is where a victim of exclusion will have to go, which district of jurisdiction, and to which Foreigners' Tribunal, to file her or his appeal.
Through the NRC process, and the claims and corrections process, marginalised and unlettered sections of the population have been subject to inhuman procedural hassles, not least being sent to the Nagrik Seva Kendras, sometimes 200-400 kilometres away! It took repeated complaints to the Supreme Court to get this issue somewhat clarified through an order of April 10, 2019. However, even during the ‘re-verification process’ this torture continued.
Discussions are rife in Assam about how de-centralised the locations of these Foreigners' Tribunals will be given the vast distances in the state. Already the state government is trying to overtly centralise the process by locating these tribunals in ‘six zonal areas’ of the state. All these logistical issues will remain crucial in the accessibility to justice for all those excluded.

Complex background

The background to this humanitarian crisis is complex. In Assam, there has been, apart from the NRC process, the ‘D’ voter process initiated by the Election Commission of India (ECI) in the mid-1990s. In 1997, more than 3 lakh people were marked as “doubtful voters” overnight, without even the pretence of any prior investigation whatsoever.
This was violative of judgments of both the Supreme Court of India and the Guwahati High Court, most especially Sarbananda Sonowal, 2007, Moslem Mondal, 2012, where fair investigation is emphasised as a pre-requisite for anyone being served such a notice.
Some more ‘D Voters’ were added in later years. A study shows that a majority of those declared “doubtful voters” were women, some newly-wed. Some have subsequently been able to prove their citizenship, others not.
However, many people marked as “doubtful voters” are still disenfranchised and have, to date, not received any notice from Foreigners' Tribunal to prove their citizenship. The children of such persons, following the Supreme Court order of August 13, 2019 (and in apparent violation of Section 3(1) (a) of the Citizenship Act, 1955), have now been excluded from the final NRC list.

What next

All those excluded from the NRC list have to appear before the Foreigners' Tribunals. These tribunals have already been in existence dealing with those cases of persons declared ‘D’ voters (by the Election Commission) or those ‘referral cases by the Assam Border Police’ who are ‘suspected foreigners’.

Teesta Setalvad

We reported that, on July 19, 2019, in reply to an un-starred question No-3804, the minister of state of home affairs stated in the floor of Parliament that up to 31 March this year, 1.17 lakh people have been declared foreigners by the tribunal, 63,959 people have been declared foreigners by an ex parte order.
Those who contested the case claimed themselves to be Indian, very often people are declared foreigners because of minor anomalies or variations in names, age and place of residence in documents. Any contradictory statement or not proving documents as per evidence law could cost them their citizenship.
Given the high human stakes involved and the balance of power against the marginalised and the unlettered, it is crucial that these tribunals function transparently, following acceptable and standardised processes of allowing appeals and evidence, precluding existing complaints of the sheer arbitrariness in their dealings.
Open, fair and judicious trial is the fundamental guarantor of every citizen living under the rule of law, apart from being a fundamental right guaranteed under Article 21 of the Constitution. India’s claim to these fundamentals will, once again be put to test in every case before the Foreigners Tribunal given that citizenship is the very basic of rights and to be arbitrarily being declared ‘non-Indian’ is akin to a ‘civil death’.

Exclusion, detention, deportation

In July this year, the Citizens for Justice and Peace (CJP) undertook a rather depressing task. We compiled a list of citizenship and NRC related deaths in Assam: 60 people who had lost their lives and whose deaths are connected to citizenship related issues. Today the number is higher.
Sayera Begum jumped into a well hours before the list was published on a rumour that she may not have made it to the list. Tragically, her family found that she actually had. While some of the others have allegedly committed suicide due to frustration, anxiety and helplessness related to the NRC, some reportedly took their own lives fearing the deadly detention camps.
Although those excluded from the final NRC will not be detained immediately, the Damocles' sword will be an ever-present peril. Once declared “foreigner” by a tribunal – whose functioning(s) have hitherto been marked by arbitrary and ad hoc functioning — he or she may be detained in such camps, with an intent to deport.
There are already around 1,100 detainees in six detention centres across Assam. Reports of pathetic conditions abound. As of now, Assam has six detention camps. These operate out of makeshift facilities in prison compounds located in Goalpara, Kokrajhar, Silchar, Jorhat, Tezpur and Dibrugarh. There are also reports that new facilities have been planned in other parts of the state.
The government has admitted to 25 deaths within these camps between 2013 and now. Our film, "Behind Shadows—Tales of Injustice from Assam’s Detention Camps" makes for chilling viewing and the fear of detention has driven women and men to despair, and even death in the state.
Only last year, on May 10, 2018, the SC has directed the release of those detenues who have completed more than three years in detention. While this order has rightly put an end to indefinite detention, questions around the initial three years of arbitrary confinement, remain.
On the contentious deportation issue, there is little clarity. The state of Assam in its affidavit before the Supreme Court in on-going matters filed in February 2019 admitted to only four declared foreigners being deported since 2013!
On a recent visit to Dhaka, external affairs minister S Jaishankar even said that NRC is India’s internal problem. To date, India has not spoken to Bangladesh about deporting “declared foreigners”.
Under these unclear political circumstances, will the option be indefinite detention? A person declared “foreigner” has of course the right to appeal, to the higher courts, also an onerous and resource consuming process. Detained, she or he is denied a dignified life, and also a dignified death.
At least 15 lakh plus cases will now be heard by Foreigners Tribunals (3,70.000 did not file for registration before NRC). The number is high and the limitation of 120 days may seem inappropriate and need extension.
What is needed foremost is some clarity and commitment on the status of such persons who will be compelled to undergo a legal process, not just at the initial stage, in the Foreigners' Tribunal through their appeals but also, possibly, in subsequent appellate forums like the high court and the Supreme Court, even.
Will the state ensure their basic rights remain intact until then? Will political expediency not snatch these away as the media glare dies down? The spectre of statelessness is what haunts the populace. Denied the right to a nationality by a state, stateless persons are particularly vulnerable to abuse.
We have seen this with the Rohingyas. India has not signed either of these international proclamations that bind the signatory country to norms and procedure: the 1954 Convention on Status of Stateless Persons nor the 1961 Convention on the Reduction of Statelessness. However, as judgements of the higher courts have so far asserted, Articles 14 and 21 of the Constitution apply to both citizens and non-citizens in India.
Two judgements are worthy of mention. In NHRC vs State of Arunachal Pradesh, 1996, the Supreme Court has held that rights under Article 21 are as much available to non-citizens as to citizens, and to those whose citizenship is unknown. Or else, stateless persons are at the risk of being deprived of access to basic rights, including access to education, health care, employment, the right to buy or sell property, open bank accounts, or even get married.
In 1981, in Francis Coralie vs The Admn, Union Territory of Delhi, the Supreme Court held that it is the fundamental right of everyone in this country to live with human dignity, free from exploitation.
Our Constitutional foundations and the fundamental freedoms guaranteed under Article 14 and 21 should be the guiding principles to mitigate NRC and citizenship-related crisis affecting Assam. The institutions created and the measures put in place to redress grievances of the 15 lakh plus excluded must pass this litmus test.
Turmoil, trauma and a vicious targeting have dogged an otherwise consensual process for over four years in the state while the wounds have festered for decades. It is time the process forward is constructive and provides some healing.
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*Well-known human rights activist, director, Citizens for Justice and Peace, fighting for those sought to be declared foreigners in Assam. A version of this article first appeared in Sabrang India