Leah Verghese and Shruthi Naik are executive team members at DAKSH India.
The Gauhati High Court recently set aside an order by a Foreigners’ Tribunal in Assam that declared Haidar Ali a foreigner for failing to establish linkage with seven people whose names appear along with his grandparents’ names in the 1970 voter list. This order has once again brought to the spotlight the flawed citizenship adjudicatory process in Assam. To understand these processes better, the authors have analysed 818 orders passed by Foreigners Tribunal No. 4 in Hajo between 16 June 2017 and 30 December 2019 (obtained through RTI) and 787 orders and judgments of the Gauhati High Court delivered between 2010 and 2019, resulting from writ petitions filed against orders of the Foreigners Tribunals. In this article, the authors explore the process of adjudication of citizenship in Assam, in terms of fairness, procedural aspects, and time taken through an analysis of these orders.
Analysis of Foreigners Tribunal orders
98 per cent of the suspected foreigners brought before Hajo Foreigners Tribunal No. 4 during this period were Muslim. This is not reflective of the population of Hajo, which has a 44 per cent Muslim population, and neither are these numbers explained by the demographic composition of Bangladesh. The 1951 census showed that in East Pakistan (today’s Bangladesh), non-Muslims comprised 23.20 per cent of the population. This proportion became 19.57 per cent in 1961, 14.60 per cent in 1974, 13.40 per cent in 1981, 11.70 per cent in 1991 and 10.40 per cent in 2001. The abnormally high proportion of Muslims (as compared to their population in Hajo or even Bangladesh) brought before the tribunal during this period indicates that they are being targeted.
The orders also reflect a serious non-application of the judicial mind. A majority of orders followed a set of templates with only the names of persons, the police station involved, and the dates relating to the case being changed. The descriptions of investigations by the police are like movie scripts riddled with obvious plot holes. In 733 cases, the police claim to have met the suspected foreigners. During these alleged visits, the police asked these suspected foreigners to produce documentary proof of their citizenship, and 570 of them allegedly told the police that they had no documents to prove that they are Indian citizens. The orders do not mention what kind of documentary proof the police asked for. It is a little difficult to believe that when it comes to a matter as serious as citizenship, 570 people could not produce even a scrap of paper furthering their claim. This leads us to wonder whether the police’s accounts of these visits is credible. In 218 of these cases, the police also concluded which district in Bangladesh (mostly from Maimansingh) the suspected foreigners were from, despite the complete absence of any documentary proof of citizenship. Apart from these alleged meetings with the suspected foreigners, the orders do not describe any police investigation.
Although the police claimed they were able to meet suspected foreigners before submitting their enquiry report, in at least 98 per cent of such cases, they were unable to locate them subsequently to serve a notice to appear before the Foreigners Tribunal. The reason often cited in the orders is that the police could not find the person at their place of residence and local residents and the gaon burahs did not know of their whereabouts when the police enquired with them. We spoke to an advocate practicing at the Gauhati High Court (who has also appeared before the Foreigner Tribunals) who revealed that in some cases, the gaon burahs have also appeared as witnesses for the suspected foreigners and confirmed that the police did not question them and that the person does live in their village. The process adopted by Foreigners Tribunals does not allow the police to be cross-examined by suspected foreigners’ advocates. The lack of a procedure to cross-examine the police leaves no scope to challenge the police’s submissions regarding their alleged meetings with the suspected foreigners and their subsequent inability to find the same people.
The inability to find these suspected foreigners to serve the Foreigners Tribunal’s notice on them works out conveniently for the police and the tribunal. Unlike regular criminal trials where an accused is presumed not guilty and the state has to prove that they committed a crime, the burden of proof as per Section 9 of the Foreigners Act, 1946 is on the person accused of being a foreigner. This reversed burden means that if a person fails to appear before the Foreigners Tribunal, the Tribunal can pass an order declaring them foreigners without hearing the suspected foreigner. We found that 96 per cent of the orders we analysed were given ex-parte. In all these orders, the police produced no evidence to indicate that the suspected foreigners were not Indian. Yet, they were declared Bangladeshi because of the reversal of the burden of proof.
Only in 31 cases were the suspected foreigners allowed to refute the allegations made against them. All these 31 orders were passed by the tribunal member Giti Kakati Das. The progression of her career as a member of the Foreigners Tribunal gives an idea of the effect of declaring a low number of individuals to be foreigners. She was appointed as a member of this Foreigners Tribunal by an order of the Commissioner and Secretary, Home and Political Department dated 29 July 2015 on a contractual basis for one year. After one year, her services were extended for another year, till July 2017. Through a notification dated 20 June 2017, she was denied an extension along with several other members because she had not declared enough people as foreigners. She was reinstated only after she and the others challenged the termination of their services before the Gauhati High Court.
In addition to concerns of fairness, the suspected foreigners also had to go through long drawn proceedings. Given that most of the cases we analysed were decided ex-parte, we expected that these proceedings would have at least progressed swiftly. With a lack of information on the exact filing date of cases before the Foreigners Tribunals, we attempted to understand how long cases took to be disposed of by approximating the filing date as the median date of the year in which the police were asked to investigate the suspected foreigner. This Foreigners Tribunal took on average an astounding 3,637 days, i.e., nearly ten years, to dispose of a case. Of course, with the focus on Foreigners Tribunals in recent years, it is interesting to note that 92 per cent of the cases analysed were disposed of in the years 2018 and 2019 alone. It is also interesting to note that in 82 per cent of the cases, the report of service of notice being forwarded or notice being served in a substituted manner was done in the years 2018 and 2019, although the cases dated as far back as 1999. The cases seem to have been kept in cold storage for several years, then taken out, dusted, and disposed of with undue haste in 2018 and 2019. Further, even though cases were pending for such a long time, the Foreigners Tribunals decided these cases post-haste once the police reported that they could not find the suspected foreigner to serve the tribunal’s notice. In such circumstances (where the individual could not be found) the matter could be decided ex-parte. On average, the tribunal took 39 days from the date of receipt of this report to give ex-parte orders.
97% of these orders direct that the proceedees be deported. Very few of these, if any, will be actually deported since deportation requires Bangladesh’s consent. According to data placed before the Lok Sabha as of 10 December 2019, only four Bangladeshis have been deported pursuant to their declaration as ‘foreigner’ by Foreigners Tribunals in Assam. If deportation is not possible, persons declared to be foreigners are supposed to be sent to detention centers within prisons in Assam, pending deportation.
Analysis of High Court judgments
41% of cases in the High Court judgments and orders pertained to orders passed by Foreigners Tribunals in the districts of Morigaon, Barpeta, and Goalpara. Although none of these districts share a border with Bangladesh, Barpeta has the largest number of Foreigners Tribunals. 35% of the High Court decisions we analysed involved ex-parte orders passed by Foreigners Tribunals.
All the persons whose cases reached the High Court in the set we analysed, had some form of documentation, ranging from electoral rolls, land records, and panchayat certificates. 61% of them had electoral rolls and 39% had permanent residential certificates/ certificates from the panchayat. In 66% of these cases, the Foreigners Tribunals found the documentation unsatisfactory, and in 38% of them, documentation was rejected because spellings did not match. In 71% of the cases, the secondary evidence was deemed not to be admissible. Secondary evidence is usually a copy of the document and not the original. Such evidence gets rejected because either these were not certified copies or the person who created the document (e.g., panchayat member, school principal, etc.) could not certify its contents. One in two people were declared foreigners because the authorities that issued the documents produced before the tribunals failed to appear before the Foreigners Tribunals to testify that the documents produced are genuine and authentic to their knowledge.
Along with issues of procedural fairness, the issue of judicial delay was apparent in this round of analysis as well. The High Court took 477 days (1.3 years) on average to decide these cases and the average number of days between hearings was 116 days.. For these numbers to be put in context, they were compared with similar figures for other cases before the Gauhati High Court. As per data available in the DAKSH database for other cases, the average number of days between hearings was 31 days, and the overall time taken to dispose cases was 277 days (0.7 years). The cases filed against the orders of Foreigners Tribunals seem to be taking considerably longer than other cases before the Gauhati High Court, even though these did not involve complex questions of law.
We found an increase in the number of writ petitions filed before the Gauhati High Court in 2016, with the number of cases being close to double that of the previous year. The Government of Assam set up 64 Foreigners Tribunals in 2014, in addition to the then existing 36 Foreigners Tribunals. The spike in High Court cases may be because of the increase in the number of cases before the newly established Foreigners Tribunals.
The question of citizenship in Assam is nestled in a confusing tangle of documents, bureaucracy, and legal procedures which Foreigners Tribunals and the Gauhati High Court are tasked with resolving. Haidar Ali’s case aptly illustrates this. Ali was declared a foreigner on specious grounds even though he produced eleven documents supporting his claim of being an Indian citizen. This citizenship question is not merely a legal issue. It is also deeply embedded in the political history of Assam. Despite the end of the anti-foreigner agitation in 1985, the anxieties around the issue of migration from Bangladesh remain and have been exacerbated by the National Register of Citizens (NRC) process. Thus, given the political and popular pressure to find and deport foreigners, it is not surprising that the process followed by the Foreigners Tribunals so far has been arbitrary, biased, and unfair. These tribunals High Court needs to be mindful of the lived experiences of identity documentation to avoid an overly legalistic approach in the interests of justice. This issue acquires additional significance in the current context with 19 lakh people excluded from NRC whose cases will get referred to Foreigners Tribunals. Business as usual cannot go on. The process of adjudication of the claims of the persons excluded from the NRC needs to be shorn of the politics that has characterized the process so far and be molded into a fairer and less arbitrary process.