Rohini Mohan :
In a month, millions in Assam will learn if the government believes them to be Indian citizens. Anyone excluded from the National Register of Citizens, due on August 31, could face trial in the state’s quasi-judicial Foreigners Tribunals (FTs). It will be their final chance to prove they are Indian, short of a costly and difficult appeal in a higher court. If they fail, they could be detained immediately, and marked for deportation to Bangladesh.
It might seem like a straightforward process to identify and deport illegal immigrants, who are seen by many in Assam as a drain on the economy and a threat to national security. Home Minister Amit Shah has called them “infiltrators” and “termites”. Prime Minister Narendra Modi has sworn he’ll get them to “pack their bags”. The Supreme Court has also accelerated the process of detecting and detaining them.
The tribunals have declared over 1.17 lakh people foreigners since the 80s, with a sharp uptick in the last five years. But an investigation shows that their trials are arbitrary, deeply inconsistent, and riddled with errors.
Through the Right to Information Act, i requested the court orders delivered from July to December 2018 from all 100 tribunals in Assam. Though required to provide this public information, only five complied. But even these have been illuminating.
In the over 500 tribunal judgments analysed, about 82% of all people on trial were declared foreigners. Assam activists and UN human rights experts have raised concerns about possible bias in the tribunals, but this is the first time the tribunals are being analysed at this scale. The investigation revealed many flaws, but five are particularly alarming:
First, every one of the 113 individuals from the judgments i met were Bengali speakers. Lawyers and tribunal judges attested to the focus on people of Bengali origin.
Second, disproportionately more Muslims were tried and declared foreigners. They constituted almost 89% of the cases analysed. Nine out of 10 Muslims tried were declared foreigners, compared to 4 out of 10 Hindus.
Third, 78% of all orders were delivered ex-parte, without the accused ever being heard. The police claimed they couldn’t deliver the trial summons since the “illegals” were “absconding”, but i found several of the accused in their villages. Many weren’t aware they were declared foreigners, until i told them.
Fourth, unlike most criminal trials, the tribunals place the burden of proof on the accused – she is presumed a foreigner until she proves herself Indian. However, the police reports that form the basis of the accusation often appeared botched, incomplete and biased.
Fifth, many individuals who had managed to prove they were Indians had to repeatedly defend themselves against new complaints.
Ahmed, a 50-year-old scrap dealer was accused in 2005, declared Indian, and accused again in 2016. “Did i become Bangladeshi in the years in between?” Ahmed asked. He was declared Indian again, but the second tribunal case ensured his name didn’t feature in the July 2018 draft NRC list, which doesn’t include people on trial. In May, his neighbours pointed to the bamboo shed he lived in now. “When does a kabadiwala earn if he spends all his time proving he is Indian again and again?” one of them asked.
The National Home Ministry said in an email, “It is incorrect to say that working of the FTs is flawed,” but the investigation showed otherwise.
Few of the tribunals followed standard trial protocol. One declared all the people it heard “not foreigner” while another declared everyone a foreigner. Which documents were acceptable, what the written statements should contain, or whether maternal lineage was admissible, depended on each tribunal judge. Some accepted explanations for variations in age, name spellings, and surname mix-ups for married women. Others found these clerical errors reason enough to declare people foreigners.
Those who struggled most in this system were unschooled women, the elderly, the wretchedly poor, and the many affected by erosion in river islands – they were stripped of citizenship because government paperwork failed to capture their messy reality of early marriage, age, loss and forced displacement.
Justice seemed twisted on its head. The judges presiding over the tribunals are often not judges, but lawyers and going forward, can be bureaucrats. The Assam border police, despite its name, does not man the borders but is stationed inside districts. Residents and village headmen said the police didn’t do preliminary inquiries before filing complaints.
With the NRC exercise coming to an end, and millions poised to face these very FTs, it’s worrying how broken the institutions are. They will decide if entire families will keep their homes, property, and can live freely in this country. The State and Centre seem ready to put away numerous people; they’re adding 1,000 new tribunals to the existing 100, and 10 more detention centres to the existing 6.
Instead of being expanded and empowered, the FTs must be made more transparent and accountable. They must have more consistent protocols and follow recognised fair trial standards. The police must show evidence for their accusation, and be penalised if found issuing false complaints. As some retired judges have suggested, the presiding officers of tribunals must have more judicial experience.
Government records from decades ago are not perfect across India; people who lack flawless, consistent Indian paperwork cannot simply be jailed as illegal immigrants. Few of our parents or grandparents would qualify as Indian under the tribunal’s parameters.
For the BJP governments at the Centre and in Assam, heated debates over nationalism have been profitable politics. But as both Hindus and Muslims trapped in bureaucracy reminded me, perhaps others in India can cheer on or look away from this ordeal only because it hasn’t come to their doors yet.
(Rohini Mohan, an independent journalist, writes for Times of India)
