Interview with Dr Rimple Mehta

Rimple Mehta is a Senior Lecturer at the School of Social Sciences, Western Sydney University. She has previously worked at the School of Social Work, Tata Institute for Social Sciences, Mumbai and School of Women’s Studies, Jadavpur University, Kolkata. Her research and field engagements broadly focus on women in prison, refugee women, and human trafficking. She engages with questions of borders, citizenship and criminology of mobility. Her paper titled “So Many Ways to Love You/Self: Negotiating Love in a Prison” won the 2013 Enloe Award and was published in the International Journal of Feminist Politics. Her monograph titled “Women, Mobility and Incarceration: Love and Recasting of Self across the Bangladesh-India Border” was published by Routledge in 2018. Her latest co-edited volume published by Orient BlackSwan is titled “Women, Incarcerated: Narratives from India”. She has worked with women in prisons/detention in Mumbai, Kolkata, Sydney and The Netherlands.

This interview was conducted over a video-call and has been edited for clarity.


Shreya UK: Good morning, Dr Mehta. Thank you so much for joining us for an interview with Parichay. I want to start with trying to understand how you ended up studying Bangladeshi women in Indian prisons. What led to this particular book – and scholarship – in the first place?

Rimple Mehta: Thanks, Shreya and thanks also to the Parichay Team for inviting me for this conversation.

Actually my work with Bangladeshi women in prison goes back a long way. I started as a social work student at Tata Institute of Social Sciences. As a part of my field placement, I was placed in an organisation called Prayas, which was working in prisons in Mumbai. I started as a student social worker and started looking at the various issues that confront women in prison – whether it was in terms of health issues, or connecting them to their family members or supporting  them in accessing Legal Aid. So there were a whole range of issues that I was working on.

In between all of this, the Bangladeshi women started coming and speaking with me because I knew Bengali. Initially, it was just in terms of conversation or just spending some time because it was difficult for me to do anything about most of the issues that they came up with, such as connecting them with their families in Bangladesh. They did have legal aid but their cases were slightly more complicated. So initially it was just about spending time and having conversations. And then the issues started emerging through those conversations. There were issues with regard to how they come to India; at what point they are arrested by the police? What happens with regard to their legal cases? How are they sent back to Bangladesh? Do some of them end up coming back to India? 

These questions remained with me, even after I finished my field placement. I went on to pursue them as a part of my PhD, because I just felt there was absolutely no information available, no knowledge around the experiences of these women. And so I decided to work on it. That’s how it started.

SUK: Tell us a bit about the point you mentioned earlier: how and why did these women cross the border in the first place? Secondly, how did their mobility emerge from gendered notions of freedom?

RM: There are a whole range of reasons why people from Bangladesh come to India. There are also a whole range of ways in which they come to India. Because my doctoral work was in prisons in Kolkata, the women I met with were largely women who were single – single in the sense that they travelled across the border alone. They did not come with their families. They were much younger, most of them   were between the ages of 20 to 25. They came for a variety of reasons. Some of them came looking for work. Some of them said that they had been trafficked. And some of them said they wanted to see what India looked like.

In fact, a number of women actually challenged my questions when I said in the conversation – did you come looking for work, for a better life? They said, ‘Rimple, if Bangladesh can feed me till the age of 16,17,18, then they can feed me even after that. We do have aspirations of different kinds. We do want to make a better life, and hence we’ve come here.’ 

But I’ve increasingly seen in the narratives of women who cross borders that gender based violence is really a key factor – a contributing factor to their mobility – which forces them out of their country – whether it’s violence in the natal family, in the marital family, or at the workplace. A number of these women were working in the garments factory in Bangladesh. There is also trafficking within the country, and so many of them would move away to find a more safe place to live in.

Gender based violence, thus, becomes a key factor in making that decision to move across the border. Apart from the fact that some of them said that they had aspirations to make a better life. But we need to see those aspirations in the context of marginalisation and violence that they experience.

SUK: Dr Mehta, you talk about gender based violence and how that often forces [Bangladeshi women] out. But once they cross the border and are eventually arrested, I’m sure they face a very different sort of violence. How do we understand the gendered aspects of immigration and incarceration? Do you think these two processes go hand in hand, especially in the borderlands but also beyond? I’m asking this question in context to something Uma Chakravarti says in the foreword [of Women, Mobility and Incarceration: Love and Recasting of Self Across the Bangladesh-India Border]. She talks about the prison gate as the border. It is in this context, I want to understand – does the border, or the immigration process produce incarceration? Or vice versa? And how do they, if it all, mutually reinforce one another? 

RM: I think most of these women’s lives were along the spectrum of gender based violence, which was furthered by the different institutions, whether it was the family, the state or the prison, and more broadly the criminal justice system. Because the nature of violence that they experienced was closely linked with their gender identity and the position within the gender hierarchy. Whether it was in terms of their expectations as a woman within the family. Whether it was in terms of their national identity, and what they were expected to do because they belonged to a particular nationality. 

I think that the intersection of borders and incarceration had a deep impact on their everyday lived experience. It completely worked as a nexus, which created what I call the ‘incarcerated immobility’ for their everyday life. It gives the notion, you know, that they’re moving, they’re moving across the border, they are crossing but that mobility is constantly juxtaposed or is confronted with different kinds of borders which continue to incarcerate them. So it’s almost like a mirage. It seems like it’s happening, the freedom is there. They keep moving towards this idea of freedom. But at each step there is a border which incarcerates them. 

SUK: How did you get into the field of border studies? Was that something you had in mind when you first started talking and working with Bangladeshi women? And since you do talk about these multiple borders – in your book, you make a distinction between political and social borders. Could you tell us a bit about how [these Bangladeshi women] distinguished them, what is the merit of understanding this distinction as well as the way they are interlinked? 

RM: Actually I had absolutely no inclination or even understanding of borders, or border studies, and that was not something that I thought of when I started working in the prison.

In fact, like I said, while working in the prison, I wasn’t really focused on ‘Bangladeshi women’, or foreign national prisoners. Once I started engaging with them and their narratives in prison, one of the things that I realised is that I will not be able to understand their lived experiences in prison unless I listen to and understand their experiences of the border,  their narratives and understanding of the border. So that’s how the border came into the discussion and that’s how it became a part of my conceptualisation of their experiences. 

When I started speaking with them, most of their narratives actually start with, ‘And when I crossed the border…’, because that was the key point in their life which actually changed the direction of what they were aspiring for and what they thought they were crossing the border for. It’s that moment which led them to being in prison. So unless I understood that moment and that experience of the border, it was not possible for me to understand what their life in prison meant. That’s how the border came into my research.

Not only did it come into the research but also their narratives really expanded my understanding of borders. It was borders at different steps. Just even crossing the border or the boundary of their home and then, crossing the political boundary or the border of the country – they could see the various levels that they had to cross before, what they saw as, aspired freedom. Only to then be incarcerated in another country. So that’s how the notion of social and political borders came up, especially when they were talking about the experiences of gender and gender based violence. These connections between the social and political borders became more pronounced.

But more than that, I think what was really intriguing for me is the way they conceptualised the political border and how they understood the relationship between India and Bangladesh. Some people might read their narratives and refer to them as being naive or say ‘Oh, they are not educated so they don’t understand.’ But actually if one reads through the narratives and the layers within that, what they are doing is challenging the heteronormative idea of the state itself. They’re doing that, not only by crossing its borders and aspiring to have a better life, but they’re also doing it through the way they conceptualise it; through the way they challenge the idea of neatly drawn [on the map] militarised  borders and the ways in which they build relationships across these borders. Thus, indicating to us that there is an idea of fluidity and fuzziness which can be adopted in our understanding of states and borders. When they keep referring to the relationship between India and Bangladesh over a period of time, they’re doing what we could also call, a sort of historical analysis.

So I do see a lot of theorisation within their narratives. They are doing it, both conceptually, as well as through their mobility – they challenge the idea of the state. I think we have a lot to learn and understand. It’s almost like they’re providing us a vision of what a state might look like

SUK: Can you tell us a bit about the legal framework, under which they are detained and how that governs their detention?

RM: Again, there are different states, different circumstances, under which they are arrested. If I were to just speak about the women in Kolkata who I met, most of them were arrested under the Foreigners Act. That was the only act under which they were arrested. But the women I had met in Mumbai often had different cases, along with the Foreigners Act or the Passports Act.

I think this also has to do with the histories of migration for particular groups. So for instance, in Mumbai, a lot of these women had been there with their families, over a period of time. Hence, their narratives were different from the women in Kolkata who, like I said, were much younger, they had moved across the border alone, not along with their families, and had not been in India for a very long period of time. That’s why it’s possible that since the women in Kolkata were arrested soon after their arrival, it was only the Foreigners Act which they were charged under. While the women in Mumbai, who had been there over a period of time with their families, had different charges attached to be names based on vulnerable contexts they might have found themselves in, and then hence became associated with some kinds of crime.

SUK: Can you tell me if this common Bengali identity somehow plays a role in how the experience of women in prisons in Kolkata might be different from those in Mumbai? I’m asking this because I remember reading a paper which analysed why Bengali immigrants in West Bengal are received differently as compared to Assam. I wonder if this Bengali identity somehow surpasses nationality and if so, what are the different ways it affects the experience of navigating these prison systems? 

RM: The experiences of women in prisons in Kolkata and Mumbai were definitely different. But I don’t think that in either of the spaces, even if they are Bangladeshi within West Bengal, that there is no hierarchy. I think we always find a way to create several layers of hierarchies. So even though, in terms of the Bengali identity and linguistic similarity, the women could communicate with the prison staff and other women within the prison, there was still the hierarchy in terms of the national identity. And that was very very clearly demarcated. The other women in prison, who were Indians by citizenship, always saw the Bangladeshi women as what they said ‘nogra’ or dirty. The prison staff would always refer to them as, again, dirty, or sexually very aggressive. They were assumed to be always creating trouble within the prison. So those hierarchies were deeply embedded within that context as well.

While in Mumbai, it was different in the sense that even if they were Bengali women, they would probably come together with the Bangladeshi women because they could speak the same language as opposed to other women in prisons in Mumbai because they’re either speaking in Marathi or Hindi or other languages which the Bengali women did not understand. Even the prison staff in Mumbai cannot speak in Bengali so then the language becomes a way in which the Bengali women and the Bangladeshi women come together. 

And in Mumbai or in other parts of the country, as we now know, the Bengali and the Bangladeshi – especially the Bengali Muslim and the Bangladeshi identity – is constantly converged as if they were one and the same. So that happens within the prison context as well. If one gets into the nuances and the layers of it, one understands the hierarchies that are deeply embedded, but also the points of solidarity which women find in a different context.

SUK: Yes, that’s very interesting. Going back to how we were talking about Bangladeshi women in Kolkata or in Mumbai and how they reimagine the state or the boundaries of the nation states. Can you tell us about how their experiential knowledge conflicts, or perhaps even conflates, with the legal knowledge – if it conflates at all? Secondly, what exactly are these re-imaginations and what do they offer to us when we are trying to understand or study nation state, how they work and how they define themselves? 

RM: In terms of how it’s different from the legal definitions, it’s this idea of fluidity of the border – the border not as this one straight line which one cannot cross. It is the fluidity and the fuzziness which they adopt, which is completely different from our idea of the state right? I won’t say our idea of the state but the legal idea of the state – the political idea of the state. Which is, the need for boundaries – which we also need to acknowledge and recognise goes back to our colonial past and the way colonial borders were drawn in our context. Which, as we know, was drawn on a piece of paper and a line was drawn across it. And so that’s one thing.

But the other ways in which they conceptualise, they really challenged the heteronormative idea of the state. One of the ways in which they do it is by building these relationships of love when they are in prison. And they build those relationships with both men and women who may be Indian by citizenship, knowing fully well that they may have to go back to Bangladesh, and these relationships may not continue. That they may not be able to continue to experience these relationships. They get into them with a certain kind of hope of continuity. I think that’s a really important idea for us because they create this, what I call in the book as, a ‘love nation’. Thereby, putting forth to us how we can look at borders in terms of relationships and affect with the hope of continuing them across what we create as borders – which they, on the other hand, conceptualise as fluid borders.

SUK: Can you tell us a bit about how these conceptions then blur the lines between what we comprehend as illegality or immortality, in context to your frameworks on ‘bhool’ and ‘aporadh’? How do they facilitate, allow or help these women navigate the prison system? 

RM: Like I said, they bring to us this idea of fluidity. The reason why it’s important for them to live with this idea of fluidity and this idea of a fuzzy border or the fuzzy nation state, is because their experiences just do not fit in the definitions of what we have created for sovereignty, for state borders or political borders.

So, the only way to live for them is to live by creating an idea of nation; conceptualising an idea of a nation state for themselves. One of the ways in which they do it is by looking at the spectrum of ‘bhool’ and ‘aporadh’. ‘I can understand that I made a mistake but how does it become a crime?’, they would say. Which again, I think, is questioning the larger idea of this illegality which is emerging all across the world. We see that we have more migrants, refugees and displaced people in the world right now than ever before because of all that is going on- wars, climate change, violence, human rights violations, unsustainable development projects etc. So the context of a lot of these mobilities, is really the context of marginalisation and  of different kinds of vulnerabilities. But when people move, it’s the idea of illegality that they’re confronted with. But in that context these women are  challenging the idea of the crime of moving across borders, given their realities. 

That provides us an important direction to understand that mobility, not just across the India-Bangladesh border, but in different contexts where mobility occurs due to different kinds of vulnerabilities. Different reasons for displacement are constantly addressed by the destination states in terms of illegality or legality – their definitions of legality and illegality.

SUK: So how does this idea of legality or illegality then affect morality – and not just for these women who are in prison but also the prison guards who are working there? How do they understand and navigate the moral grounds of such as immigration-incarceration, or say ‘crimmigration’?

RM: I think this goes back to the gendered idea of the state and the institutions such as the prison, and specifically with respect to the lived experiences of women. So one of the things that the women constantly heard from the prison staff was: why do you come to India? Do you not have food in your own country? Do you not have ‘maan-shonmaan’ (honour)? Why do you come here? And the assumption was that they come here for sex work. So, morality plays a very strong role, especially when you cross borders. That you’re probably just coming here [to India] for sex work. Or you clearly have very low morals and you cross the boundary of your nation. In terms of a gendered analysis for women, this added stigma and taboo with regard to crossing the social and political borders becomes deeply entrenched with the idea of legality and illegality.

SUK: There’s a part in your book where you use the word ‘emotional lives’ of these women. I wanted to understand how different this ‘emotional life’ is from the other aspects of their life, and is there a need to understand this emotional life independently? What is distinct or particular about this emotional life and how does it add to our conceptualisations of not just women in prison but also specifically Bangladeshi women who already exist within a very politicised context?

RM: The reason to highlight emotional lives or embodied experiences is to show people and their narratives from a different positionality, one which is different from this idea of legality and illegality. 

This is because most of the discussions, especially around people moving from Bangladesh to India, centre around whether it’s legal or illegal. Or whether they are taking our jobs. Or how do they impact the security or sovereignty of the Indian nation-state? So what I really want to do is shift our focus and see from the standpoint of pain, the standpoint of emotional experiences of these women, and then does it look different for us? Does the idea of the nation state then look different? Do these people then look different? 

We know the narratives that are created around Bangladeshis in India, right? The word that is largely used for them is ‘infiltrators’. There is a certain narrative that they steal our jobs. That they are terrorists. If it is specifically about women then these women are believed to come in here for sex work or they are only seen as victims who are trafficked. So what I’m trying to do is shift that narrative and see from a different place. What happens if we look at the embodied experiences of these women? What happens when we look at the emotional lives of these women? Do we look at them differently? That’s the idea I’m trying to put forth.

And I think that idea not only enables us to look at these women differently. It also enables us to look at our relationship with our neighbouring countries. It also helps us to look at our idea of sovereignty, and even largely the South Asian identity. What does it mean for that? 

SUK: Do you think these women see themselves the same way? Do they make a distinction between their emotional life versus other things? How do emotions fit into their everyday life in prison as well as before they were imprisoned? How would these women answer this question? 

RM: I’m not sure if they make that clear distinction. It’s more in terms of the way I’m reading and interpreting the narratives.

But the emotional aspect is clearly highlighted in each aspect of their life, whether it’s in terms of what they experienced when they were faced with violence; whether it was in Bangladesh or whether it was in India. Or the context which necessitated this mobility. All of this is being expressed in terms of a lived experience – of an emotional experience. I think reading and understanding and listening to those emotional experiences is extremely important for us.

Like I said, one of the experiences that they highlight the most is the idea of love. How they navigate the idea of love, within the prison, but through the different stages in their life, and make meaning of their experiences of violence through the understanding of love and their experience of love.

SUK: Yes, do tell me a bit more about these conceptions of love. How do they play out? What does this love look like in everyday practices amongst the women? And how does this then go back to your larger theory on the ‘love nation’?

RM: Again love was not one of the things that I was going to look at, or even had anywhere in my realm of conceptualization or understanding when I started working in the prisons. It was the women who challenged me to think and write about it.

One instance that I will never forget and was a really important learning moment for me was when one of the women came back from the Court and told me about this man who’s been professing his love for her in the few times when they met at the meeting area in the court. But that particular day, he apparently tried to hurt himself and banged his head against the wall because she just would not respond to his professions of love for her. By then I was really familiar with them and there was a good rapport between us. So I said, ‘But it’s fine, you don’t have to worry or feel guilty about it because you’re going to go back to Bangladesh, and he will not come after you there.’ There was another woman who was there, sitting around. She turned around and she looked at me. She stared into my eyes and said, ‘Do you really think love stories in prison end in prison?’ 

That was a learning moment because that’s when I realised that actually a whole lot of their narratives were evolving around love, which I hadn’t paid attention to. So when I went back to the recordings, I observed. That’s when I noticed that each time I asked them a question on violence, they would stop me or they would try to divert the conversation and be like, ‘Why do you want to hear those experiences? Let me tell you about my love story. Let me tell you who I love or what I’m doing to attract someone’s attention.’ That was the point when I started thinking about love. And, even listening. I think it’s also important for us as researchers to constantly be tuned into what’s coming up. This also relates to your previous question on why highlight their emotional lives. 

I think it really came from them. As if they were saying, ‘Just don’t keep talking about our experiences of violence. Just don’t represent us as victims. We are here, trying to make meaning of our life. We are engaging in relationships of love, which we believe can continue across the border. Which we don’t think will end once we leave the prison.’ 

That ties to the idea of the ‘love nation’ that I was talking about. That the realities they are in, they are constantly viewed only through the lens of legality and illegality, or the straight lines the borders are assumed to be. They, on the other hand, are creating a conceptualisation of a nation state which is based on the idea of love which continues across the border. I think that’s very important for us to listen to and again, look at from a very different standpoint.

SUK: Considering how a lot of women also left behind their families when they were crossing the border, owing to some form of gendered violence, do you think their narratives somehow blur the binary between violence and love? Do you think there’s a sort of fluidity in which they understand their relationships with their families and people they live with in the prison system? How do they navigate this particular relationship between violence and love? What do they make of it when the two somehow permeate the same space, that is, finding love in the prison system or experiencing violence within the family?

RM: I don’t think that there can be any blurring between their experiences of violence and love. I emphasise on this as well in my writings. Whenever we read resistance – and in this case one of the ways in which we read their experiences of love is resistance to the heteronormative idea of the state, the monotonous life of the prison and a completely asexualized life of the prison – we have to see all of this resistance in the context of their experiences of violence and marginalization. It cannot be seen in a vacuum or understood without this context.

So, I would say that apart from their expressions of love, everything else that they do to resist the idea of the nation state, the normative practices within the prison – all of this resistance has a context of violence. They are resisting but also making meaning of their life where there is very little  to hold on to in terms of any kind of external support.

One of the things that I also talk about is the continuum of violence that they experience. The perpetrators change at different points and stages in their lives. Like I said, it can be the family, the state, within the prison or more broadly the criminal justice system. The perpetrators change but the continuum of violence is what constitutes their experience. It’s in that context that they’re resisting, and it’s their resistance which shows us not only the cracks within our understandings of the nation state, family, the criminal justice system, but it is also showing us different possibilities. It’s showing us where we can move, and what kind of alternative imaginations we may have. 

SUK: Can you tell me about what the scholarship was like in the field of border policing, detention, immigration when you were setting out to do research? When these ideas of love and affect came up, what sort of vacuum were you trying to fill, or if there was a vacuum at all? 

RM: There is, first of all, very, very little engagement within the prison in the Indian context. Very little. There is only a few works available for us to engage with. It was a vacuum. Mahuya Bandyopadhyay’s book, Everyday Life in a Prison was something that was available. It was a starting point for me to think that something like this is even possible. That some work has been done. And of course, Prayas’ work really helped me to contextualise my understanding. 

There was very little research available. And it was, again, only from the understanding of the prison. Since I started working with Bangladeshi women, I had to engage with the idea of the border. I had to look at migration as well as what’s happening in terms of ‘foreign nationals’ and how we are looking at them. There was a complete vacuum. That was one of the reasons why I decided to do this work because there was so little known about it at that point in time. This is when I did my fieldwork as a student of social work in 2008. At that point, we were not discussing the issue of Bangladeshis in India the way we are discussing it now.

So there was support available from the Tata Institute of Social Sciences, within which was Prayas and then Mahuya’s work. That is how I started. What I kept as my focus was the narratives of the women and just taking the lead from there. But the other space which really helped me is the Border Criminologies Network, which was also coming up around that time. It came about around 2013 because next year it’s going to be 10 years. I  got associated with the network almost from its inception. And that’s where it opened up the world for me to look at the interconnections between the prison and the border and the space of criminology of mobility. 

That’s where it started but again, at that point, I almost felt like, within India, I was just speaking to myself. There wasn’t a community that I could really speak to. But in the international space that discussion had started. Now I see that even within the Indian context we are using words like ‘crimmigration’, which has been there for a while, within the network and all the work that the network does. There are a lot of people who have started working in this area in India. When they get in touch with me to know a little bit more or to get a little more context, it’s absolutely fascinating because we really need more work in this area.

But one thing which I really think about and I think it has a lot to say about us as researchers or people who work in the field is: when do we start looking at a particular issue? Is it only when it takes on political attention? Only when it becomes absolutely necessary because legal provisions are being put in place or mechanisms are being put in place or institutions are coming up. Is that when we start looking at marginalised lives?

At different points and different political parties have dealt with the issue of Bangladeshis very differently. None of them have actually been forthcoming about it. This particular group has been used by different political parties for their purposes. But, when did we start looking at it? And why do we always need to wait for that political discussion to erupt and then to start focusing on these issues? If I started this in 2008, I know that this issue existed even before that. It’s just for us to sort of keep looking at spaces of marginalisation, whether they are in political discussion, or not. Whether they are part of election debates or not. Just looking at the amount of work that has come up now makes me wonder how, when and why we focus our attention on particular issues at particular points. And I think it’s really important that we do it beyond the political debates. Of course we need to respond. We need and we should be in that reactionary mode. We also need to be a little more forward thinking in our work, I think. 

SUK: Definitely. That is actually a really interesting point. But that also makes me wonder when we talk about marginality, how can we study or address the concept, as researchers, without necessarily only focusing on those who are being marginalised? And once we ask this question, one realises that power does not really exist in a binary between those who are marginalised and those who are marginalising. So, in a sense, we are always in a hierarchy of marginalisation.

How did you work through this hierarchy when you were studying the prison system? You were not only dealing with the women who were in prison but also the prison guards, people who worked in as well as enabled the prison. How did you navigate this space? How did they interact among themselves? How did they make sense of this fluctuating dynamic between the marginalised and the marginalising? 

RM: I think that there are two questions there. One is how do we understand marginalisation and marginal identities considering that there is a hierarchy within that. But for that I would say that we really look at reality from different standpoints. It’s very important for us to engage with people who are at the receiving end of institutions and power, to say it very broadly. We have to see how it impacts different groups of people. With respect to the Bangladeshi women, through their narratives, we are actually able to see the cracks that exist within our understanding of families, state and institutions within the criminal justice system. So when you look at institutions and structures from a different positionality, it gives a very, very different picture of reality. So I think that’s why it’s important for us, as researchers, to keep looking from different spaces because, again, it goes back to the importance of lived experience. This is what lived experience tells us, that no matter where we look from – anywhere else we look from – it will not be the same. So the first thing is, the importance of lived experience. 

The second part of your question is how do we navigate that when we go in as researchers? I think for the prison space in particular, there is a lot that we need to navigate when we enter that space. That is because you are also under surveillance as a researcher – constantly. And you also have issues around access. You wonder if you will even be able to go and speak to the people because there is so much opacity around these institutions. Access, therefore, becomes a big issue for us. So you navigate that. On top of it, you are also trying to work that out with the women that you’re speaking with. In my case, definitely my identity as an Indian citizen was constantly also coming up in the narratives of these women. It was not only my identity as an Indian citizen but more importantly, my identity as a non prisoner – a person who can keep going out. The women would often say, ‘We’re telling you all this but you can go out of the prison, I can’t. But since you can go out of the prison – you do this for me. You tell me what’s happening in the outside world. You tell me what people are discussing about us.’ In prison work, especially, where there is this binary of a prisoner and a non-prisoner and the non-prisoner researcher can go out of that space at the end of the interview, you can consciously work towards mitigating this hierarchy. But that binary remains at that point in time.

But I think one of the things that you said is really important. Even if this binary exists and we are trying to understand the lived experiences from different positions of marginality, one thing that we really need to be careful about – and do this in a conscious way – is not assume that power impacts only those marginal identities. The idea of the nation-state, the idea of sovereignty, the idea of legality and illegality impacts not only people who are not citizens. It also impacts all of us. It impacts the idea of security. We see that even within the citizens that hierarchy can be created because of this certain idea of state security. So, as long as we understand that we are all actually impacted by this, and not just isolate that one particular person with the idea of saving that particular person. If we move beyond that idea of benevolence and look at the structures and the way power is implicated in these structures, it will help us work through the hierarchies, and not just again victimise certain people in our narratives but try to address it from a structural position.

SUK: How did you address your own positionality as a researcher? I am asking this question in context to the ways you were received in the prison. What did the prison guards think of you coming in and going out? Did they ever ask you questions? How were your interactions with them? How did that make you understand or contextualise how power works within the prison system? Is it really concentrated in one particular group, identity, or rule?

RM: I’ll answer this in the context of the work that I’m doing now in prisons in Sydney, because that’s when I realised that as a researcher your positionality keeps shifting based on where you are working. In prisons in Mumbai, I was still seen as a student social worker, but in Kolkata I was seen as someone who’s pursuing higher education, who’s probably more ‘enlightened’ and hence needs to be respected. So the prison staff did extend that kind of treatment to me. But one of the things that constantly kept confusing them is why someone like me would want to spend so much time in prison. This was a question which came up very often. They would say, ‘You’re from a good family. You can do so many things with your life. Why are you here for almost a year coming every other day to spend so much time in a prison? 

There was that and but I think after a point you also become invisible. You become a part of that space, and then there isn’t that much attention that is given to you. You come and you go. That was my experience in the Indian context. But the moment I started working in a prison in Sydney, I realised that just my positionality as a person of a particular colour makes a whole lot of difference. 

That’s one level. But with the women, again, it’s the context. In the Indian context, the Bangladeshi women were still able to build some solidarity with me but they always saw me as an Indian citizen. But in this context, in Sydney now, the women from the Global South look at me in a particular way, and draw that kind of solidarity. 

For me, as a researcher who knows the privilege that I come with, I think it’s very important to constantly be aware and reflective of what I am doing in the field. How does it impact the women that I’m working with? Where do I sit with them? What time do I go to meet them? Because in an institution, all of this, ultimately impacts them because they continue to live in that space. Do I do it at a time when they’re supposed to be locked in? Will that help them come out at a particular time or will that mean that they will have to be locked in for longer? So, I have to make such calculations around time and space in a way that it doesn’t actually add to their experience of marginalization and discrimination. In that space, that struggle is really constant – even for me, as a researcher – to live with the reality that you are going to be walking out of that space. Then what do you do? 

The other dilemma which all of us as researchers are confronted with is – is this going to provide an immediate resolution or solution to some of the issues that women are facing in the present, right now? Or is it a work in progress that will have broader policy implications, which will then trickle down? These are these challenges that you’re constantly working with. But one thing which constantly helps me navigate the hierarchy between me and the women I work with is to be reflective, and to centre their experiences and their narratives within whatever decisions I’m taking or whatever I’m doing.

SUK: When you set out on this endeavour, what did you think was the utility of this scholarship? Given the ongoing debates on citizenship and immigration, do you think the initial purpose or the concerns you had going into this project has changed or shifted? Is there any difference as compared to when you were starting out? 

RM: Like I said, it’s not a new issue. We have just decided to foreground this in all our work now. But it’s been an ongoing issue. Some of the lived experiences in terms of how they are sent to Bangladesh or the uncertainties of their life within India, have been an ongoing issue for a long period of time. 

I can only imagine that now with all our attention, it’s probably just going to get harder for some of these women. This is because of the discussions around the issue of trafficking, legality and illegality, the citizen, and the foreigner. So these binaries are only getting deeper. It’s really crucial for us to then ask ourselves: where are we looking from? Whose voices are we highlighting? It’s very important that we don’t – again – just speak to the broader narratives and the discussions but that we really centre the lived experiences. 

The voices of people are going to be impacted by these changes that have taken place in the recent past. I definitely think that the uncertainties and the fear of survival is heightened, at this point, because of all the changes that have taken place.

SUK: Have you gone back to the correction homes in Kolkata or the prisons in Bombay after your research was published? You talked about how those women would say, ‘Oh, what do they talk about us?’ Have you told them the sort of things you write? Have they engaged with your work? What have their opinions been on how you write about them and how that work is then received? 

RM: Back when I was still doing fieldwork and I had started analysing and writing, I did take some of the writings back to ask the women, ‘What do you think? I’m writing this,’ and share my ideas. So I was able to do that. But, as you know, it’s really difficult to access the space so it has been difficult, particularly after the release of a film by the BBC, one that included an interview from a person within the prison. After that, a lot of guidelines were put in place for prison researchers as well. 

That’s the other issue that we have in terms of access. When people from outside the context come and research, it has all kinds of implications for our work and the way we can foreground the realities of people. So, access has been difficult but it’s in progress.

SUK: What did they say when you came back with your initial writings? How would they respond? What did they feel about it? Did they feel happy that their stories were being heard? Did that impact your relationship with them or what you represented to them?

RM: The part of the work at that point that I was able to take back to them was again their narratives of love. So when I shared with them that I’m writing this and this is what I’m thinking about, some of them wrote another couplet or they told me the starting sentences of a love letter. They added to it and sometimes they dictated to me, saying, ‘You write this.’

One of the women also said, ‘Oh you’re writing about love, then you also tell them that there are a lot of young Bangladeshi women in prison and winters are approaching. We need a lot of comfort, if you know what I am saying.’ It was the turning point in terms of understanding the emotional lives and central to which was their experiences of love that really shifted our relationship as well. But the tension that ‘you are going to go out and I’m still going to be here’ constantly stays. This tension is also fundamental to our relationship – no matter how much they trust me and no matter how much I try to be aware of the power hierarchies and work through them.

SUK: You also mentioned working within prisons in Sydney. Somewhere in the book, you also talk about studying detention centres in the Netherlands. I was wondering what it was like studying these different places. I wanted to know if you found any similarities or dissimilarities between how crimmigration works in ‘Global North’ versus the ‘Global South’? 

RM: Yeah, this is something that I’ve been thinking about a lot – especially after I’ve just finished the fieldwork for a project I am working on –  that is, just how similar the narratives of women are. I spoke about the challenges that I have as a researcher and how my positionality changes. The positionality of women also changes and different countries have different laws and we can put in different theoretical lenses to understand them. But the core issue of women’s mobility – especially visible mobility that is actually constantly bordered and incarcerated – seems to resonate across these different places that I have worked. That for me is very sad actually at one level. That gender based violence still is one of the major issues because of which women are moving across borders. And as a consequence of that they find themselves in different kinds of vulnerable contexts. Then that paves the pathways to the prison. So, this similarity really tells us a lot about gender and the nation state, and also family.

So much so that when I was making a presentation, based on my previous work [with Bangladeshi women in India], people in the audience actually thought I was talking about my work in Sydney. That for me was really striking because there is so much similarity. That’s why I feel that the strong, powerful voices of the Bangladeshi women really reaffirmed for me that that voice has a lot to offer. Not only for an understanding of the India-Bangladesh border, but for our understanding of border controls, the idea of the nation state, and how we look at mobility across borders. I think it has insights for a much broader context than just the India-Bangladesh border.

SUK: Is there any merit in comparing crimmigration across the ‘Global North’ and the ‘Global South’ – without necessarily assuming them as strict binaries? Secondly, how do we understand this new focus on ‘b/ordering’ in South Asia when its practices have been almost innate to these countries since 1947? 

RM: I definitely think there’s merit in trying to draw from and understand different concepts and theoretical frameworks that have come up, say in the Global North. Like crimmigration. We are borrowing that idea from there. And I myself have done that. Like I said, when I started this work there was a complete vacuum. This field of criminology of mobility opened up for me a really different area to explore, to understand and to engage with discussions. There is merit and value in that. 

But I don’t think we need to keep falling back to that concept. We really need to understand how it applies in our present context, specially because we are actually just on the way to formalising a lot of these processes. That formal link between migration policies and looking at the criminal justice system is still being established. We are seeing that detention centres are coming up. So we are at that stage. So we should start from where we are to understand the directions that we need to take. For which, we need to listen, to borrow ideas, read more, engage with ideas that are coming up in different places – but not just limit ourselves to that or keep only quoting that or falling back on that. I think we have a lot of space to contribute to those ideas and we should utilise that by looking at it from different standpoints.

SUK: I think your research actually does prove that because the women you speak to have such a perceptive idea of India’s border politics, of the way it impacts citizenship as well as the criminal justice system. At one point, one of the women you interviewed asked a question, ‘Why can’t they just send us back? Why are they continuing to feed us and keep us here? If we have done something wrong, why can’t they send us back?’ 

I wanted to understand how these women, first of all, critique or perceive the social, political and economic infrastructure of the prison system? What do their perceptions reveal about the infrastructure? How does it actually work? What sustains it? Why does the government keep them? Why does it not send them back?

RM: I think they are challenging that idea. They are really questioning this state and asking – what is it that you get out of doing this to us? Considering that we committed no other crime – we have not harmed another person – what is your moral ground to keep us here? That is the question they ask. 

But the way I interpret it is that the state is creating the Other. Creating someone as a threat to the idea of the nation state helps you secure your identity as a citizen. To secure your identity as a citizen, you constantly need the ‘Other’. So I think that’s the moral ground on which all nation states actually create the image of the Other. That’s what we’re seeing whether it’s in terms of the representation or discussions around refugees, people seeking asylum, people who were referred to as illegal migrants. All of these discourses, and the way that are represented – even in the media, if you see the words that are used to represent different groups of people who are migrating for different reasons – is creating them as a threat to the idea of the nation state. 

So, when you create the Other as the threat, you put mechanisms in place to constantly feel secure. This actually is also going to impact the citizen. The systems of surveillance and the idea of security, justified by the nation state, are impacting and creating hierarchies within the idea of citizenship as well. It sustains itself by creating the idea of the Other. 

SUK: That’s an excellent point. Going back to something you said in the very beginning of the interview – do these women come back? If they do, how and why? I ask this in context to a particular incident I came across in a book – which also featured in the newspapers years ago – about this one Bangladeshi woman who had been detained in Delhi and sent back to the border. Yet she came back some six-seven times. I wanted to know if you encountered similar stories and what was the reasoning that you were provided? 


RM: So actually one of the reasons why I ended up taking this up for my doctoral studies is a woman that I met again in the prison in Mumbai. It was the same woman I met after a few months of her being sent back. She was back in the prison. That’s when I understood that they are deported, then some of them again find their way across the border and they come into India. It is in pursuit of an idea of freedom.  It’s really looking for a better life, whether it’s in terms of their social life, their economic life, or even their emotional lives. It’s that search for freedom and that idea of freedom that they constantly look for which gets them back to India. And this is, of course, specific to some women but there are instances where women are trafficked across the border as well. Their circumstances are different.

SUK: Have you noticed the use of technology in border practices in the areas you’re working? Have you encountered it during your research or after? And what do you speculate will be the impact of increasing use of technology in crimmigration processes in South Asia? 

RM: One of the research projects that I worked on was looking at child marriages across the India-Bangladesh border. I did a few interviews along the border areas on the Indian side. That is when I observed the use of technology. A number of women when they came here and they were married – they had a child marriage –  were not always aware of the implications of this mobility due to marriage. They did not know the implications of their marriage on their citizenship. That they would not be able to go back to meet the natal family. One of the ways in which they kept connections with their family was through the use of WhatsApp, through internet and social media platforms. I think that helped them sustain the wider kin relationships as well.

So definitely there is a use of technology across the border. Some of the work that I have also been doing is near the Rajasthan-Pakistan border. There too, I have seen the use of technology, just to create that understanding of continued relationships. Even though we know that the context of that border is completely different and it’s much harder for communities on that side to remain connected with each other. India-Bangladesh border is still open in many parts but it’s not the same for the Rajasthan-Pakistan side. 

I was with one community in Barmer speaking about Partition and how their families were separated by the border. Just then someone got a call and they said, ‘Look, he’s my kin and he’s in Pakistan and we are still connected.’ So I think technology has still made that possible. But at the same time, like you said, technology is also being used for surveillance of communities and building evidence for certain communities against certain communities. I think that’s only going to increase, and we again have to be mindful of how it impacts different people. Like I keep emphasising, we need to keep looking from different positionalities to see its implications.

SUK: Dr Mehta we have come to the end of the interview. Is there anything you would want to add or ask?

RM: I think the questions were really really interesting and it helped me think through some of the issues. The only thing I would say is that, as researchers it’s really important for us to be transparent with our methodology and constantly explain and be open about why we do what we do. Where are we looking from? We have to be mindful of the kind of analysis and interpretation that we make, being aware of where our voice comes in, and where there are representations. So, that for me is key in terms of our ethical practice towards research but also the communities that we work with.

SUK: Definitely! Thank you so much for your time. 

Interview with Advocate M.R. Shamshad

M.R. Shamshad is a New Delhi based Advocate-on-Record at the Supreme Court of India. His practice spans a wide range of constitutional, civil, arbitration, matrimonial, and personal law matters in the Supreme Court and various High Courts in India. He represents one of the petitioners challenging the Citizenship (Amendment) Act, 2019 – Mr. Asaduddin Owaisi, Member of Parliament from Hyderabad (a copy of the Petition can be accessed here). The Citizenship (Amendment) Act, 2019 received presidential assent on 12 December 2019, shortly after which ~200 petitions were filed before the Supreme Court challenging its constitutionality. More than two years after the petitions were filed, the challenges are yet to be substantially heard.

This interview has been edited for length and clarity.


Md. Tasnimul Hassan: You represent one of the petitioners who has challenged the Citizenship (Amendment) Act, 2019 (CAA). What prompted you to challenge it and why do you see it as unconstitutional?

M.R. Shamshad:  I am representing the petitioner in my professional capacity, but I feel from my heart that the CAA is arbitrary, unreasonable, discriminatory; a law which will ultimately hit all those who are politically inconvenient to the regime which has brought this law. A reading of it may look very innocent, but it has very serious consequences.

Prior to the CAA, the Citizenship Act, 1955 (‘1955 Act’) had undergone about 9 amendments between 1957 to 2015, but it remained region and religion neutral. In the CAA, for the first time, the government chose religion and region as the basis for granting citizenship to a foreign national. The CAA primarily aims to alter the current 1955 Act to provide for the acquisition of Indian citizenship for a certain category of ‘illegal immigrants’ from only Afghanistan, Pakistan, and Bangladesh. In doing so, it lays down qualifying criteria that fail to pass the tests laid down for such laws in Part III of the Constitution, as interpreted in numerous landmark judgments of the Supreme Court.

MTH: One of the main grounds for alleging the CAA to be unconstitutional is that it welcomes migrants from certain religious communities while rejecting migrants from others. By having such manifestly arbitrary standards, you argue that the CAA in some form is encouraging (and to some extent, necessitating) religious conversion. Could you elaborate on this?

MRS: As I said earlier, CAA brings elements of region and religion. The Amending Act, particularly Section 6, offers an incentive to persons from Afghanistan, Bangladesh, and Pakistan to change their faith so as to avail the relaxed requirement of only five (5) years of residence for obtaining Indian citizenship, down from eleven (11) years prescribed under the Third Schedule to the 1955 Act.  The present legal regime is that a Hindu coming into India from a war-torn country (like Afghanistan) will be granted a long-term visa and will be put on the fast track for citizenship to be granted after 5 years of residence in India. Whereas a Muslim from the same country seeking refuge will not be eligible for a long-term visa and will have to reside in India for 11 years before he/she can even apply for citizenship.

On the face of it, this way of creating rights on the basis of specific religions (by excluding one religion) is contrary to the legislative policy in India. We have seen various legislations being passed by States defining ‘forcible conversion’ to include an offer of ‘better lifestyle’ & ‘divine pleasure.’ Here the State is granting ‘citizenship’ based on religion. That is why we say that the present framework under CAA is nothing short of incentivizing conversion by the State, in gross violation of Article 25 of the Constitution. I can also say that this is action by the State to glorify the concerned religion(s).

MTH: India is not a signatory to the UN Convention relating to the Status of Refugees, 1951. The CAA has been justified as a law for protecting refugees from minority communities from Afghanistan, Pakistan and Bangladesh. Why do you think India has simply not adopted the UN Convention, and chosen to go down this path?  

MRS: Well, as we know, the original Refugee Convention of 1951 was Eurocentric, emanating from the Second World War and thus explicitly related to a particular geographical area. However, the 1967 Refugee Protocol expanded the scope of the 1951 Convention to all countries.

India is not a party to the 1951 Refugee Convention. However, it is important to remember that India is a signatory to several other human rights conventions like the UDHR, ICCPR, ICESCR, CERD, CTCIDTP. Indian courts can also give directions to implement these international laws as it was done in the famous Vishaka (1992) case. The principle of non-refoulement, which states that no persecuted refugee must be deported to any country where they are liable to face persecution, has been recognised as a part of international law. It has become imperative that India does need a refugee law, however; even in the absence of India not being a party to the Refugee Convention, India must follow the other human rights treaties that it has signed and our country’s actions viz. CAA cannot be justified on the sole ground of it not being a party to the Refugee Convention.

MTH: You assert in your petition that CAA offends the principle of constitutional morality. What in your view should be ‘constitutional morality’ apropos of immigration?

MRS: The concept of ‘constitutional morality’ was conceived by Dr. Ambedkar as the shield of the minority against the tyranny of the majority. Recently, the concept has been defined by the Supreme Court in the Navtej Singh Johar case (2018) where the court has said that “‘constitutional morality’ which strives and urges the organs of the State to maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in multifarious ways.” The court also said that it is“the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality.” Regarding the CAA, this principle read with what Dr Ambedkar said is the answer to the question. In the present case, we witness that the State, instead of curbing the majoritarian sentiment, has very much legalized and institutionalized the ‘tyranny of the majority’ and populist ideas, and in doing so has adopted a standard apropos of immigration through certain notifications and the CAA, which clearly violates the concept of constitutional morality as adopted by the Supreme Court and as conceived by Dr. Ambedkar.

MTH: The CAA presumes religious persecution for persons belonging to certain communities. Some commentators have speculated on a CAA-NRC (National Register of Citizens) nexus, by which the CAA allows a pathway back to citizenship to a section of people left out of the NRC in Assam. When the Supreme Court adjudicates on the constitutional validity of the CAA, do you think it is important for the court to take the NRC exercise into account as well?

MRS: It is true that in the absence of a requirement to prove or even claim persecution to apply for citizenship, the CAA clearly appears to have an ‘unholy nexus’ with the NRC, aimed at identifying ‘illegal migrants’ residing in India. While the NRC exercise would result in identification of persons as ‘illegal migrants,’ the CAA seeks to simultaneously offer citizenship to illegal migrants who are Hindu, Sikh, Buddhist, Jain, Parsi or Christian on the presumed ground of persecution.

The other aspect is that the state has, in a way, placed the onus upon the individuals concerned to prove their citizenship by giving extraordinary power to the person who will scrutinise the documents, although it should be the other way around. Only those persons against whom the State has doubt of not being a citizen of India, should be called upon to produce the documents and not every ordinary Indian. We live in a system where making of documents inter alia ration card, income certificate, death certificate makes you run from one table to another, involving severe administrative hurdles – all that without any accountability of the officers concerned. Do you think the issue of citizenship will be easy for a lay person? Don’t you think religion, money, connections, education, etc. of the individual will play a crucial role in the process, which is undesirable, to say the least?

MTH: The NRC has been seen as one of the most ambitious judiciary-led bureaucratic exercises in the country. How do you see the role played by the Supreme Court in overseeing the preparation of the NRC list? Do you believe that the court acted in consonance with its constitutional mandate?

MRS: Firstly, it was a court-initiated drive. There can be a difference of opinion as to whether the Court should have taken initiative on this or not. Definitely, the Supreme Court has a role to play in this process. The Supreme Court bench presided by Justice Ranjan Gogoi (who himself came from Assam, and after demitting office as Chief Justice of India became a nominated Member of Parliament) passed various directions while undertaking the exercise of NRC in Assam. The Court gave validation to the set of documents which could be the basis for inclusion of names in the NRC. It fixed deadlines for this process. It appointed administrators to carry out this process. It recorded the provisions of funding for this purpose: obviously the government had to bear it. All this happened in the Supreme Court. In my opinion, there were severe complications involved. Many people did not understand the consequences of this process as a substantial number of people in that area are extremely poor and illiterate. Moreover, geographically, it is a flood prone area where houses keep shifting. However, the Supreme Court moved very fast to achieve this complicated exercise. And now, after this exercise was announced to be completed, the Executive appears to be saying that it shall be re-done. Why? Why after spending time—including the Supreme Court’s time and a huge amount of public money, this process needs to be re-done?

MTH: Now that the NRC is in action, what do you think the top court’s role should be in deciding the fate of 1.9 million people whose citizenship is in limbo as they are excluded from the NRC list? Also, there have been reports on how the NRC process disproportionately affects people from marginalized communities. Has the judiciary responded effectively to these structural barriers people face in the process of proving their citizenship?

MRS: Firstly, in view of the fact that this initiative of the Supreme Court has led to a serious political issue, as an institution, the Court must intervene to protect the outcome of the process. Secondly, the persons suffering due to non-inclusion of their names in the NRC must be given a fair chance, on priority basis, to agitate their grievance in front of the appropriate authority manned by people who do not carry prejudice on the basis of religion. Moreover, as the Assam NRC is an outcome of the Supreme Court regulated exercise by a dedicated bench, the best way would be to dedicate a bench of three judges to deal with the issue of those aggrieved persons. The Bench should take up the matter fortnightly and see how the administrative process handles attending to their grievances.

MTH: The Supreme Court in Sarbananda Sonowal (2005), called ‘illegal immigration’ no less than an act of ‘external aggression,’ and held that the Centre had a duty under Article 355 of the Constitution to protect states from illegal migration – how has this reasoning impacted India’s approach to policy and legislation on citizenship and immigration?

MRS: Many times, terminologies used in judgments create lots of concern in the public domain. It is not very unusual in our system. However, I must say that the directions issued from time to time in this regard were used by a set of political groups, in coordination with the media, to exploit them for their vote bank politics.  

MTH: What, in your opinion, has been the role of the Supreme Court in the CAA-NRC process? Has the Supreme Court played a broader role in furthering exclusion and statelessness since independence? Has this role changed (or possibly amplified) in the past few years?

MRS: The legality of the 2015 notifications and CAA are sub judice in about 200 writ petitions in the Supreme Court. They did not get substantive hearings, much like challenges to other major legislations like the criminality of triple talaq, amendments to the UAPA, the Kashmir issue etc. On the other hand, it is noticeable that the Supreme Court has taken up other urgent and non-urgent matters of national importance by prioritizing the hearings of matters at the administrative level or by passing judicial orders for their listing on an urgent basis. A few examples are issues relating to the Central Vista, Maratha reservations, the Tata & Mistry dispute, the contempt action against lawyer Prashant Bhushan, the issue of permanent commissioning of women in the army.

The active role of the Supreme Court is very crucial at this juncture. Right now, a citizen expects the most from the Supreme Court over any other institution. Incidentally, many of the pending issues relate to anti-Muslim rhetoric by the Executive. Conversely, at present, hearing of matters of constitutional importance itself has become an issue.

We thank Advocate Nabeela Jamil for her support in conducting this interview.

Interview with Suchitra Vijayan

Suchitra Vijayan is a researcher and author of Midnight’s Borders; A People’s History of Modern India’. In this interview, she speaks on her book, Indian and international refugee policy, and the ethics of representation when documenting the stories of minority communities.

This interview was conducted over an audio call and edited for length and clarity.

Anna Kallivayalil: Starting with the book’s title, ‘Midnight’s Borders’. What was the thought behind the name of the book? Does it bear any similarity with the use of ‘midnight’ featured in Jawaharlal Nehru’s ‘A Tryst with Destiny’?

Suchitra Vijayan: It was a challenging book for us to name. We chose the title from the ‘Tryst with Destiny’ speech. We were also wary that there existed another book, ‘Midnight’s Children’. By giving the book the name ‘midnight’, we did not want to indicate that it was derivative or reflected the same politics as Nehru’s speech or the Rushdian novel.

At the same time, we decided to keep the name to genuinely understand what ‘midnight’ meant and, in some ways, change that meaning. So, yes, the title is undoubtedly derived from Nehru’s speech. But the book is positively critical of the Nehruvian nation-state that has played out into what we see today.

AK: Taking off from that, the Nehruvian (and essentially, the mainland) understanding of the nation-state is that the Partition was a one-day, open and shut case that happened on the midnight of 15th August 1947. But as you’ve pointed out in the book, people from the border contest this popular belief, proving that they are still reeling from the effects of Partition. Another misconception that you’ve pointed out in the book is the idea that India’s borders are solid, where you’ve written about how porous the borders can be, especially the Indo-Bangladesh border. Could you tell us a little bit more about this observation?

SV: The’ Partition’ was a process that started much before 1947 and continues today. There is a violent history behind the Partition. The date of Partition is decisive of when and how the story gets told. We consistently focus on the date of the Partition itself to think about a historical moment that played out differently for many people.

If you see the patterns of Partition and migration patterns, the patterns of migration start much before 1947 and continue to happen today. I don’t think we understand how those who lived during the Partition saw the sub-continent. When I spoke to people in their 80s and 90s, their idea of a border was not the idea of a border that we have today. They had a completely different view of the sub-continent. For them, the idea of a border was alien. They only understood that there would be two different homelands, a Muslim homeland with the name Pakistan and a more secular homeland named India. Thus, the idea of borders was very different from what they are today. People would not recognise the heavily militarised borders of today. The idea of citizenship and belonging have also changed dramatically.

People had also left during the Partition, hoping to come back after things had settled down. However, some people left their homes due to untenable living conditions. This also sheds light on how people thought about the Partition and its resultant borders.

Thus, Partition is very much ongoing. The protests against the CAA/NRC continued the conversation about India’s citizens. Therefore, we should be mindful of when and where we start writing the history of Partition and its stories.

AK: When the legislature continues to believe that borders are solid, and when laws are built around that assumption, what are the possible ramifications that could arise from such an assumption?

SV: The CAA/NRC undoes the secular idea of citizenship in the founding documents of the Indian Constitution. It is really interesting to think about citizenship and minority rights. For long, the language of minority rights within the legal framework has been framed as the tool to protect vulnerable, marginalised and often historically oppressed groups.

This language arrives through the Convention on the Prevention and Punishment of the Crime of Genocide intended to protect minorities from the threat of annihilation. This language used within the Indian Constitution similarly fails to address equality and liberty adequately. The framework designed to protect a group from persecution itself cannot achieve the ends of equal citizenship. 

Even when you start with ideas of citizenship, it is crucial to understand that the ‘founding fathers’, so to say, had differing ideas of citizenship. The Constituent Assembly Debates show a sense of richness in terms of the word ‘citizenship’. Invariably, all questions revolving around citizenship do not focus on the nation-state. Instead, they focus on what it means for India to be a secular republic. Thus, as it was initially conceptualised in India, citizenship is very closely linked to the idea of secularism. Extending secularism to citizenship makes the Indian Constitution a phenomenal and revolutionary Constitution.

The ‘revolutionary’ Constitution not only created a social world made of contradictions, but it very soon became the tool of suppressing dissent, deployed laws like the Armed Forces Special Powers Act (AFSPA) and Public Safety Act (PSA) in Kashmir. Laws like UAPA and sedition laws are primarily used against the country’s minority and dissenting communities.

While the Constitutional ideas of secularism informed the initial ideas of citizenship, that was not what played out on the ground even back then. The Hindu majority always had an advantage over other communities. Things that the Hindu majority got to take for granted were not things that other communities got to take for granted. Seervai, in his book, ‘Partition of India: Legend and Reality, talks about how Jinnah wanted parity, not Pakistan, first. The idea of parity was not enshrined in the Constitution, even if it enshrined secularism. Implementation issues aside, the Constitution had a secular notion of citizenship in its original form. Citizenship cannot be ethno-nationalist citizenship. The Constitution did not envisage citizenship to be of an ethno-nationalist model. The ethno-nationalist model mandates citizenship to be linked to a shared ethnic identity, or in the case of India, religious identity. Hindu religion is seen as the basis of the republic, making it a Hindu nation and shared political, cultural, historical or even legal histories of belonging no longer matter. Here, Nationalism is inherited through the ancestry of being Hindu.

There is also a very interesting question posed to Nehru, where he was asked, ‘who becomes an Indian citizen?’ Nehru responded that whoever wants to be an Indian citizen can become an Indian citizen. Anybody who wants to belong to this land can become a citizen. This statement reflects a secular idea of citizenship and is very different from the modern idea of citizenship today. The secular model of citizenship never translated on the ground, but it was still theoretically an ideal approach to citizenship. The CAA/NRC and a series of other laws are ways in which the citizenship model has moved from the ideal secular model to the ethno-nationalist model.

It is now unabashedly clear who the state thinks are the real citizens of India. To be a citizen, you need to have specific ethno-nationalist characteristics. One of the ethno-nationalist characteristics is being a Hindu. This is a significant shift from the secularist idea of citizenship to the current ethno-nationalist model.

AK: I’d like to mention here that you had founded the Resettlement Aid Project, Cairo and worked with the project between 2008-2009. As someone who has worked with refugees previously, could you shed some light on Indian and international refugee and statelessness policy as it stands today?

SV: I worked as a legal director with the Resettlement Aid Project, and I worked there between 2008-2009. One of the fundamental things that became clear to me working there was that the refugee policies, the rules, the systems we have in place are deeply flawed. The current refugee laws and procedures were created in response to the Holocaust and World War II crises. Thus, they responded very specifically to a Europeanized Jewish population who had to be freed from near-extinction. So even back then, these laws were profoundly flawed and insufficient to respond to the crisis after the Holocaust. A lot of it felt like a band-aid remedy.

Over the years, we developed systems and institutions. But all these institutions were based on the fundamental belief that people fleeing violence or persecution have to provide footnotes and citations for their oppression. When we were preparing resettlement cases and refugee testimonies, the authorities only wanted to know about the refugee’s life and what forced them to leave. Even preparing that document where we had to tell their story, the footnotes and citations of their oppression that led them to leave, was a profoundly violent and inhuman process.

The violence that leads people to flee is often seen within a context that does not consider history’s deceit. In reality, many refugee crises happen ​because of the Cold War​ politics and posturing, imperial interventions, the ongoing geopolitics of the world. Yet, these crises are not recognised in refugee testimonies. Instead, we outsource these great acts of violence to the refugee’s responsibility. The person fleeing violence has to justify why they are fleeing violence.

Eventually, all this goes back to the question of citizenship and the erosion of citizenship rights within the idea of the nation-state. If you look at the UN Human Rights Charter, it says that every person has the right to a state. This is increasingly flawed because the state then becomes foundational or the source of your freedom. By this understanding, we derive our rights from a contract with the state, and not because ​freedom and dignity ​are inalienable. This is a fundamental flaw with how rights are constructed within the UN​ charter and various rights documents.

Another significant flaw in the Indian and international refugee policy is that it does not deal with the impending climate crisis. Climate change is going to fundamentally remake the borders of the world. We already have at least 20 million climate refugees. The laws as they stand today do not even begin to address those crises. Hence, it is a deeply flawed system. But these flaws come from structural and racial inequalities of the world, and we cannot divorce these structural flaws from the more significant crises.

AK: Coming back to the book, I found it very interesting that you had added pictures along with the writing. There’s a part in the introduction where you’ve explained why you decided to add pictures with the book, do you think the pictures enhance the particular stories in a way?

SV: When I started the book in 2012-2013, it began as a photography project. It was to be a predominantly visual project. That became impossible early on, and I realised that the visual medium would not be enough. I had to come up with a way to tell the stories as I saw them. The book in front of you results from someone trying to make sense of so many things. But the book is also lacking certain things that we could not add. For example, there are no maps in the book. Almost any community I spoke to had their version of the maps, but I could not include these maps in the book for legal reasons. Another critique I’ve heard from people is that we should have included the state maps. The maps that we have included are all pre-independence maps.

For many of these communities, the maps dictated by the state are inherently violent because they do not see themselves reflected in these maps. This is true of communities in Jammu and Kashmir, Manipur, Nagaland, etc. In all these communities, the Indian nation-state depicts itself in its maps is not the way they see themselves.

We also had to remove​ some of the images from the book towards its end because they had the identifying features of the people photographed.

Further, the book was finalised before Ayodhya, the NRC, and the CAA. After these events, many of the people I interviewed no longer wanted to be a part of the book. There is no Gujarat chapter because people did not want to speak. Thus, the book in front of you is not complete. When you claim to write a book about people in the communities, and if they no longer want to be in the book, you should not put them in the book. It is not for us to decide whose stories are included in the book.

The book in front of you with some images, some maps, some poetry, is a reflection of the present. It is a reflection of the world we are in today. The book is not just a record of the stories told; it is also a testimony of untold stories that we couldn’t tell.

AK: Adding to that, in the introduction, you talk about the ethics of representation. You didn’t intend the book to “give voice to the voiceless”. The ethics of representation is a very sticky subject, and there’s a very fine line of difference between telling their stories and appropriating their stories, violating their privacy.

SV: It was not easy writing this book. We need to think about who gets to write about India and its people. I think it has always been the same people who tell the stories of India. It’s a particular kind of upper caste and upper-class men and women who continue to write books and tell the stories of people in India. This group of authors all belong to the same community, and their view of India is very similar. It is the same people who tell their idea of India, over and over again. Even with the growing Dalit representation, it is nowhere close to how the stories are told.

When I started writing the book, I had to be very clear about the privileges I had and where I was placed in the pool of people who get to tell these stories. For example, the fact that someone has a camera creates a certain unbridgeable distance between you and the person being photographed. So the very fact that I can do this puts me in a place of immense privilege.

A few years ago, there was not even this public acknowledgement of privilege. Now, admission of privilege is very performative. Acknowledging privilege does not improve the material realities of people on the ground. Privilege is something that all authors and persons who document others’ stories still need to be sensitive about, even if it is acknowledged.

There are specific improvements in the sense of who gets to tell people’s stories. A decade ago, I would not have been able to write this book. I did not come from a place of privilege, and I am, in some ways, an outsider. I very early on found out what cultural capital meant. If someone like me had to struggle to get the book published, imagine how hard it would be for someone who doesn’t have any of these privileges. The beginning is always acknowledging privilege. There is a considerable disparity between the actual realities on the ground and the social realities as we see written in books of India. Acknowledging privilege means acknowledging your complicity in everything you claim to fight through the book.

I was also very candid about the mistakes I made in the book. I am not infallible. It was essential to have a collaborative form of writing, which meant that I had to send back transcripts to the people I interviewed take out the interviews of people who no longer wished to be in the book. I was also particular about quoting the entire piece of what was said by the interviewee. Therefore, my contribution to the book was just analytical of these pieces of conversation. Another thing I was very particular about was being unabashedly critical of those in power, the structures that have led to such conditions. I would name the beast.

I wanted the book to ask some fundamental questions in a very public way. The ethics of representation is very murky. Power and privilege are always corrupt. How does that power then reflect when you write? A lot of that is introspection, the ability to say when you were wrong, admit to the mistakes made, and correct those mistakes.

AK: Reading your book had opened my eyes to so much that goes unreported in the mainstream media. Would you recommend young people to travel to the borders to learn more about their country or are there other ways in which we can be more aware?

SV: People need to start being more observant of their surroundings. I think that’s a crucial thing that we’ve lost over the years. We are not looking at the real world around us. To young people, I’d say speak to the people around you and make sense of what’s happening. That itself will take you a lot of time. I had spent a significant amount of time reading and trying to understand things around me before deciding that travelling to the border was necessary.

We also need to learn to hold the people in power accountable. It could be the government or any other source of injustice. Finally, be curious about the world in as many ways as possible. Engage with people even if they have a different viewpoint. After all this, we can even begin to start answering questions by travelling to the borders.

Travelling to the borders is a challenging and dangerous task; I find it hard to believe how I came back in one piece. However, travelling the way I did is not the only way to understand more. I think there are other ways, starting in our backyards.

Interview with Ravi Hemadri

Ravi Hemadri is Founder and Head of Development and Justice Initiative (‘DAJI’), a public charitable trust working on issues of justice, human rights, and dignity for marginalized communities, with a particular focus on urban migrant workers, refugees, internally displaced people, stateless persons, and Indigenous peoples. He has over two decades of experience in research and advocacy on the rights of Adivasis, Dalits, women, migrants, and refugees. He was also one of the advisors on the Securing Citizenship report.

The following questions were formulated with the help of Devashri Mishra and Aashish Yadav. This interview was conducted over an audio call and has been edited for length and clarity. 

Arunima Nair: What is the situation of the Rohingya refugees in India, and the socio-economic deprivations that they are faced with? How have they been affected due to the Covid-19 pandemic?

Ravi Hemadri: My organization DAJI has worked with the Rohingya since 2012, and has conducted mapping exercises with the UN High Commissioner for Refugees (‘UNHCR’) including on child protection issues etc. We’ve also conducted research with other agencies such as the Danish Refugee Council and the Asia-Pacific Refugee Rights Network. As part of this network and the Statelessness Network Asia Pacific (‘SNAP’), we’re also aware of situation of the Rohingya in Myanmar, Malaysia, Bangladesh etc.

In India, the Rohingya are the worst off among all other refugee groups. They are under UNHCR protection and care, unlike the Sri Lankans and Tibetans who are given refugee cards directly by the Home Ministry. Typically all other categories of refugees—like the Afghans and all the Myanmar refugees—fall under the ambit of the UNHCR. These categories of refugees have a precarious legal status, because UNHCR cards have uncertain legal validity. These cards are accepted by the law enforcement agencies as a customary practice. The UNHCR card gives some protection against detention since it’s a UN issued card. However, in the context of the 2017 campaign launched against the Rohingya in Jammu and other places, a junior Minister in the MHA stated on the record that UNHCR cards are not valid. That puts the Rohingya and other refugees under the mandate of UNHCR in a very precarious situation. Initially, when the whole Aadhaar scheme was launched, it was for all residents including foreigners (i.e. any foreigner who had continuously stayed in India for 180 days) which was a good start – several refugees did get Aadhaar cards, but then the Police took away the Aadhaar cards that many refugees had in 2017. The Government also has the Long Term Visa (‘LTV’) facility – anyone who has stayed in the country for a long time can get an LTV, and several Rohingya had also got LTVs in Hyderabad, Delhi, Jaipur etc., but a huge issue was created in Parliament along with the 2017 campaign against them in Jammu etc., and then the Government stopped issuing LTVs to Rohingyas.

AN: Is this lack of legal validity of UNHCR cards common across South Asia – presumably stemming from the fact that no country in South Asia has signed any refugee or statelessness conventions?

RH: The Rohingya are also the least skilled of all refugee groups who’ve come into India. The Afghans, for example, are comparatively better-educated and better skilled, with many engineers, doctors etc. among them. The Rohingya as the least educated and least skilled need the most support, but they have the least support from the Government. The UNHCR operates in India under a wider mandate between the Government of India and the United Nations Development Program (‘UNDP’). The only formal collaboration the UNHCR has with the Government is with respect to the repatriation of Sri Lankan refugees to Sri Lanka. UNHCR India facilitates the repatriation of refugees to Sri Lanka.

The term refugee is undefined in Indian law – they are treated as any foreigner, they’re also subject to detention when they enter India ‘illegally’ in West Bengal, Assam, Manipur etc. At least 300 Rohingya are in detention, including 70 children in these border states.

AN: Are the children separated from their families?

RH: As far as I know, till the age of 6, they’re allowed to be with their mothers, after that the boys are separated and sent to children’s homes and the girls are allowed to remain with their mothers up till 10 years. So a lot of children are separated—when they migrate across the border, many times those who are able to cross into India and those who are detained are fragmented families. Once they reach Delhi and get the refugee card, they are relatively safe from detention, but if caught in these border states, particularly without valid UNHCR cards, they are detained.

Since Rohingya are traditionally farmers, cultivators fisherman etc. in Myanmar, they don’t have any urban skills, and so most of them go to professions requiring the least skill, which is picking up recyclable waste in cities – 70% of Rohingyas in India are involved in rag picking. Because of that their income levels are very low. In Jammu, several used to work in cinema theatres, hotels, pharmacies etc. – but since the misinformation campaign started, these establishments started asking for Aadhaar cards etc., so they lost this kind of semi-formal employment. So definitely, the precarious legal status of all refugees, coupled with xenophobia particularly in the case of the Rohingya, have a deep impact on their socio-economic condition.

In COVID-19, they have been severely impacted in a similar way to other migrant workers – in the sense that they lost their jobs due to the strict imposition of lockdown, with no way of finding alternate employment, and in general as has happened with all workers, the employers have taken this opportunity to cut down salaries. In the Tablighi Jamaat incident in April, some Rohingya refugees from Mewat were part of the congregation. Some four of them were arrested and put in isolation for a month.

The Rohingya community in Myanmar has dispersed all across Asia and South-East Asia. You are right when you say that in South Asia and South-East Asia, except for Afghanistan, none have signed the refugee conventions.

India’s policy has always been ad-hoc: it has changed based on the diplomatic relations between the country of origin and India. When the whole student uprising started in Myanmar against the military in 1988, India gave the International Award to Aung San Suu Kyi. 1988 was when the Burmese activists started coming to India and taking refuge, there were camps set up to receive them in Mizoram etc. That slowly faded as relations between India and Myanmar grew, both economic and military. Even with the Rohingya, initially they gained visibility since 2012, when they put up a demonstration, because prior to that they were only being given asylum seeker cards and not refugee cards. Questions were raised in Parliament over why, since India has had refugees from Myanmar since 1988, Buddhists and Christians and so on were all given refugee cards, but Muslim refugees were not. After that they started recognizing getting refugee cards. There was absolutely no problem even in Jammu, but suddenly in 2017 political issues were raised at the local level. In 2017 the then Chief Minister of J&K gave a written reply in Parliament that there is no radicalization threat from the Rohingya settled in Jammu and Kashmir. Since 2017, we’ve only seen more xenophobia against the Rohingya.

AN: The Securing Citizenship report recommends that the Indian state must recognise stateless persons formally and issue identity certificates. These certificates will guarantee them legal personhood and the full gamut of rights until they are granted citizenship. The Ministry of External Affairs is empowered to grant identity certificates under the Passports Act, 1967 and the Passport Rules, 1980. Do you believe that this recommendation, as an interim measure, can combat discriminatory treatment in part?

RH: In the context of cases like Sheikh Abdul Aziz case (W.P. (Crl.) 1426/2013, Delhi High Court), where the person first said he in Bangladeshi, and Bangladesh refused, then he said Saudi Arabia, and Saudi also refused, in cases like this where he was very clearly a foreigner, this measure may work. Similarly with refugees, who are clearly foreigners from another country.

I don’t think the time is ripe for any solution of this kind in Assam specifically. When the NRC was finalized in August last year and there was a lot of international outcry there is a statement by the Government on the PIB website stating that there will be options available to persons excluded from the NRC and they will have to appeal their exclusion before the Foreigners Tribunals (‘FTs’). So that remains the official position, and this process has still not started even over a year since the NRC was published, despite appointing members to over 200 new FTs which have been established. Now they’re talking about re-verification in certain districts. It doesn’t seem that the Government is seeking any solutions at this stage. Our concern should be with the FTs, whether they’re appropriate platforms for the excluded to seek justice and inclusion in the NRC. I find it problematic to imply that the MEA will grant stateless certificates to such persons; the people will not accept it. Many Bengali Hindus I know are not happy with the CAA. Look at the irony – a person has been in Assam for decades, even if they came in 1971 they have been here for 50 years, yet to secure citizenship through the CAA, the Bengali Hindus, Buddhists etc. who have been excluded from the NRC will first have to admit that they entered India illegally! So it’s very ironic and insulting for someone who has been in the country for 60 years, even those whose lineages have been in Assam for 200 years, to call themselves ‘illegal migrants’ first. And we know how the smallest spelling mistakes or discrepancies have excluded people from the NRC.

No refugee is asking for Indian citizenship, except for the Sikhs and Hindus who have arrived from Afghanistan. Unfortunately the CAA is a political project – because the naturalization avenue has always been available, yet lots of Sikh and Hindu refugee families from Afghanistan, who came to India in the 1980s and they still haven’t got Indian citizenship! Recent news featured stories of Hindu refugees who came from Pakistan to Rajasthan, a lot of them have gone back! 11 refugees committed mass suicide. The problem in giving citizenship to these refugees from Afghanistan/Pakistan is more of a procedural problem as the law had always existed. The CAA doesn’t solve issues of refugees, even if we go by these three countries and these six particular communities that the Government has identified, they are not getting citizenship. It is extremely difficult and lengthy process that involves a lot of scrutiny. There’s a lot of corruption – every application of Pakistani and Afghanistani Hindus and Sikhs goes to all kinds of agencies – the Intelligence Bureau (‘IB’), Research & Analysis Wing (‘RAW’) etc. – each of which has to approve. There has been one case from a Bheel family who came 2-3 years ago whose application was rejected, they appealed to the Rajasthan High Court, which passed an order stating that their application should be considered, but by the time the order was passed they’d reached the Wagah border, and a woman of the family had died!

In the case of Assam, we are talking about resident populations, who have inter-generational relationship to Assam. It’s completely unjust, unfair, and completely violative of all international commitments to deem them illegal migrants. I see the problem more as an underlying ethnic tension between two communities, which manifests in the form of anti-foreigner movement. The Government has to admit that what is happening is wrong, only then can we move on to solutions.

AN: The report further recommends a path to citizenship for all stateless individuals in India keeping in mind India’s duty to prevent and reduce statelessness and to operationalise the right to nationality of such individuals. Do you think this recommendation can prove effective and model a path forward?

RH: One of the latest developments re: the Rohingya is that Myanmar has offered to take back people BORN in Myanmar. But then what will happen to children born in India, Bangladesh, Malaysia, Indonesia etc.? It becomes a very protracted situation. Myanmar has consistently refused to take back the Rohingya, even from Bangladesh. It is something that is going to be around for many years to come. There will have to be an international effort to come up with a solution to this. Otherwise, as we have seen, the Rohingya have become a floating population, risking lives, traveling on mechanized boats. The men keep moving across borders all the time; women and children are trafficked. This undocumented movement is then a threat to regional security. Therefore, populations like the Rohingya will have to be documented, they will have to be given some status in whichever country they are in, and they will have to be resettled internationally. This requires an international solution to the Rohingya issue. The Rohingya are stateless persons; since they are stateless, it is the responsibility of the India or whichever other country they are in to take them, give them residence, give them documents etc.

AN: You have worked with individuals who have been excluded from the National Register of Citizens (‘NRC’) in Assam, in an effort to legally empower them. Can you tell us about the ground realities of the current proposal of re-verification of the NRC? What role should civil society play to assist those facing uncertainty regarding their citizenship status in Assam?

RH: What happened in 2019, almost 2 million were excluded, and 120,000 declared foreigners by FTs so the situation was already bad. This re-verification exercise is going from bad to worse. Many Assamese parties, CSOs, and student bodies want numbers of exclusions to increase; as per media reports in Assam, the percentage of exclusions in Bangladesh-bordering districts is low. What will happen is that those who have been excluded from NRC and declared foreigners will be excluded from other rights and services.

We have recently done research of COVID exclusions in Assam, which will come out at the end of this month. We have noticed that already there is some exclusion from PDS, ration cards have been cancelled of some of those who have been declared foreigners, we have evidence from one district of a letter asking cards to be cancelled. A lot of people in Guwahati city people who were looking like they were from the border districts were not given the food rations. Another is land registration law, where there seems to be some new developments . What we thus fear is that there will be more and more marginalization and exclusion from rights and services. Such persons may lose freedom to travel freely in the country: we have seen how vigilante groups in states bordering Assam put up barricades on borders asking for NRC inclusion papers. So formally or informally they will be excluded and denied a lot of rights and services and freedoms.

 So civil society has two roles to play: first in highlighting citizenship by legally empowering communities to support them in fighting their cases before FTs, and the second is supporting them in securing access to services, and participation in local government. What may happen is that 2-5 years down the line the Assam Government may say that you require NRC inclusion to fight Panchayat elections. Unless a stop is put to this madness, the madness will go on advancing. If at all this crisis gets resolved, it’ll take many years; if it doesn’t get resolved, it will be very unfortunate and will become another Rohingya-like situation – the population will go footloose, there could be mass violence, and it will be a threat to regional stability and peace. It’s easy to target persons who aren’t considered citizens: even attacks on Rohingyas are because the attackers know they can get away with it with no repercussions.

AN: The Securing Citizenship report calls such persons precarious citizens since they are facing the threat of arbitrary deprivation of their Indian nationality. The Securing Citizenship report recommends that India must affirm the citizenship of precarious citizens in Assam who have been rendered vulnerable from the operation of the NRC and the Foreigners Tribunals (‘FTs’). Drawing on your previous work, do you think this recommendation is viable? What could be the possible challenges in its implementation?

RH: Absolutely, they should be treated as Indian citizens. One of the problems with FTs and the entire process is that the benefit of the doubt is not given to the applicant. So the smallest discrepancies in names, dates, locations etc. are treated as enough grounds to exclude someone or declare them as foreigners. One of the things about Assam is that it’s an ecologically sensitive region: lots of flooding, lots of shifting river basins and islands coming up and disappearing, so people shift a lot. So people have shifted a lot, according to one report 140 villages have disappeared in Assam in last 20 years. I have with me FT orders where for reason of shifting locations, people have been considered to be migrants from Bangladesh and declared foreigners. The exclusion is a political project – the members are required to declare a certain number as foreigners, they’ve been given a quota.

On the one hand, if someone says they’re stateless, people will argue that you can’t say that as they all have the option of going to the High Court. The question is how many can even go to the HC? Secondly, if there is still an option open for appeal, why detain people? Not only should they be considered citizens, they should not be detained. Even if FTs have to exist, there has to be a complete overhaul of the system, there are too many procedural problems, there is too much political interference in terms of appointment of members etc. There has been controversy over this: there is a case of some members who went to the Gauhati High Court over their non-continuation as FT members, there he has clearly alleged that his appointment was discontinued because of low level of declaring people foreigners (Sri Kartik Chandra Roy & Ors. v State of Assam W.P. (C) No. 4868/2017).

AN: The Securing Citizenship report recommends that the National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) must be further empowered to function akin to an Ombudsman to tackle discrimination faced by vulnerable groups such as stateless persons. Do you agree with this recommendation?

RH: SHRC is in disarray in Assam, it is not functional at all as far as I know. The last time I went there the office was closed for no reason. One of the issues however is that FT decisions are often upheld by the High Court, the High Court is in a way validating the arbitrariness. HRCs should look at procedures and appointment of members, which is a responsibility that the HC has.

AN: But with HRCs as they currently exist, there is little they can do to have their recommendations enforced, right? The most they can do is serve show cause notices to the government or release a set of recommendations, which the government can very easily choose not to comply with.

RH: Yes, that’s correct. The High Courts have the responsibility to look at procedures because of this lack of enforcement on the part of the HRCs. There’s just too much arbitrariness in the process.  

AN: In your opinion, how can awareness and research around statelessness be foregrounded in human rights discourse by civil society and academia? Accordingly, how can we effectively use the Report in such advocacy efforts in India?

RH: There are certainly increasingly internationally many people being excluded from citizenship. Lots of Governments are using this to exclude minorities from citizenship. People also need to understand the link between rights and citizenship – we’ve seen in this country how communities have been deprived of rights, resources. Their land has been taken away, their water and air have been polluted. Resources are being taken away, we have a history of the state denying resources to people. I see citizenship deprivation as a continuation of the same policy of depriving people of natural resources. Other rights groups like farmers, women, Dalits etc. need to understand that this is one way through which the Government is trying to control the population.

AN: How would you respond to the counters that the issue in Assam, and the necessity of the NRC exercise, flaws and all, are in order to protect indigenous Assamese lands and cultures from historical encroachment and movement of non-indigenous persons, and that Assam has borne the brunt in terms of shrinking resources due to the waves of illegal migration by virtue of being a border state?

RH: This is certainly an issue to be considered: the protection of indigenous populations. However, Assam is no Tripura: the Assamese elite are not the same as Tripura’s indigenous people. In Tripura in the course of 70 years, the tribals were 70% in 1950 or so, now they’re 30%, the proportions between indigenous and non-indigenous populations has completely reversed. This is what happened in Tripura, which is highly problematic. This isn’t the case in Assam. In Government jobs, trade, industry etc., while trade has more Marwaris, in Government jobs you’ll hardly find any Bengalis. Even this spectre of large-scale illegal economic migration is suspect. Bangladesh’s economic situation is much better than in Assam, and the fishing and leather industries are thriving, so why should there be economic migration in Assam? There are some refugee flows of Buddhists happening, but not large-scale migration. While I agree that land should be protected as in Meghalaya and Himachal Pradesh, the bogey of illegal migration and targeting minorities as ‘illegal foreigners’ is not the solution. Depriving people of citizenship will be counterproductive to India’s objectives of peace, development and justice.

Interview with Oliullah Laskar

Mr Oliullah Laskar is an advocate who practices before the Gauhati High Court. He is part of the Barak Human Rights Protection Committee (BHRPC), a human rights organisation based in the Barak Valley in Assam. We speak to Mr Laskar about the difference between citizenship and immigration laws, the working of the Foreigner Tribunals, the problems with the NRC, and the tribulations of a lawyer who has fought cases before the FTs.

The interview has been edited for length and clarity.

Oliullah Laskar: Before I begin answering your questions, I would like to give you some context to the Foreigners Act, 1946 and its use as a legislation to determine citizenship. The Foreigners Act (Act) is not equipped to deal with the situation in Assam or across India, if the NRC is implemented across the country. Because the mischief that was sought to be addressed by the Foreigners Act is different from the situation at hand.

The earliest version of the extant Act was passed as an ordinance in 1942. It was amended to become the law that is presently in force —the Foreigners Act 1946.

The Statement of Object and Reasons of the Act calls it a war emergency legislation. During the World Wars, governments tended to be more stringent about their boundaries and had placed restrictions on the entry of foreigners and immigrants. So the context of the promulgation of the legislation was the World War. We have to examine the context and immediate use of the Act in order to understand its present ineffectiveness.

The Foreigners Act, 1946 was not meant to be a legislation to determine citizenship. There is a difference between citizenship and immigration laws. An immigrant is presumed to be a foreigner and on the basis of that presumption she is denied most rights that are otherwise available to a citizen. However, in a citizenship determination exercise, we are determining the rights of people who are presumed to be citizens and already being treated as such.. Therefore, there is a distinction between immigration laws and laws relating to determination of citizenship.

You will find this distinction being recognised in international law jurisprudence. Even agencies of the UN have affirmed that the burden of proof should lie on the State in citizenship determination procedures. But in procedures related to immigration, in most western countries, the burden of proof is on the alleged immigrant. This was discussed in the Sarbananda Sonowal case. But the Supreme Court failed to distinguish between the process related to identification of immigrants and that of citizenship determination exercises. The SC did not make a distinction between otherwise distinct phenomena and therefore it was ruled that the burden of proof in a citizenship determination exercise, like the NRC, should be on the person alleged to be the foreigner.

The categories of persons to whom the Act is applicable is directly related to the question of burden of proof. If we assume that any person can be tried under the Act, then we will find ourselves in an absurd situation — anyone can be accused of being a foreigner.

If anyone can be sent to the Foreigner Tribunals (FT) there will be no meaning of the voter list, casting your vote, forming the government.  If people who have elected the government are being sent to the FTs, what is the legitimacy of the government? At present, we are in this difficult situation because of our failure to distinguish between immigration laws and laws for determining citizenship.

Natasha Maheshwari: In 2019, the Office of the United Nations High Commissioner for Human Rights noted that in “nationality determination processes, the burden of proof should lie with the State and not with the individual”. Section 9 of the Foreigners Act, 1946 places the burden of proving citizenship on an individual. Do you think that the IMDT Act, which placed the burden of proof on the State, was more equipped to deal with the question of citizenship?

OL: Citizenship is a very important question. It is not only the question of a person’s rights but of his life as a member of civilised society. The life of his progeny also depends on his citizenship. So it is a very, very serious matter. In fact it is more significant than capital trials.

If we follow a standard of due process or abide by the rule of law rules then the procedure will be stringent. The procedure adopted should be as stringent as that of a criminal trial.

In cases where a person who already enjoys her rights as a citizen under a legal presumption, like having her name in a voter list, is alleged to be a foreigner, the burden of proof should lie on the person who questioned her citizenship status. But in cases where an alleged immigrant is asked to prove her citizenship, the burden of proof should lie on the immigrant herself.

Like the Foreigners Act, the IMDT Act also used a quasi-judicial procedure to determine citizenship. Citizenship should be determined through a trial conducted by a regular court of law, the burden of proof being on the shoulder of those who allege foreignness of the person who is otherwise legally presumed to be a citizen. The proof that is given should be beyond reasonable doubt. Quasi-judicial tribunals like FTs or IMDTs can deal with cases of people who have a legal presumption of being a foreigner like people overstaying the validity of their travel documents which are now being dealt with in criminal proceedings conducted by judicial magistrates. The tribunals, therefore, appear redundant.

NM:  In your opinion, what are some of the problems with the NRC?

OL: There are criticisms from both sides  i.e. advocates for the NRC and those who are against it. The advocates of the NRC say that many people who should not be in the NRC have been included in the list.

Though the NRC intended to detect illegal immigrants, the process was not limited to them. Every citizen of India living in Assam had to file an application giving proof of their citizenship. The burden of proof was on them.

How is the government examining the capacity to vote of the very people who elected them? This is the main problem with the NRC. The other problem is that Clause 3(3) of the Act states that certain persons can register as original inhabitants (OI) if the registering authority is satisfied that they are OIs. But there is no definition of the term OI or procedure for determining who they are. In practice, this clause is applied on the basis of linguistic and ethnic identity.

Another problem is the virtual exclusion of certain types of oral and documentary evidence from the NRC process. As per Section 3 of the Citizenship Act, 1955, people who are born in India before 1987 are citizens by birth.

However, in the NRC application form, there was no provision to claim citizenship by birth by producing a birth certificate. Several countries have restricted the right to claim citizenship, but the basic democratic principle is that a person born in a country has a right to claim citizenship.

However, there is another distinction —  if it is applied to immigrants whose country of origin is known and admitted then it is a different question. If a couple has immigrated from another country with their child and are now living in India with valid travel documents then maybe the country of origin can grant citizenship to their child. But if neither India nor the country of origin recognises the citizenship of the child, then the child will be rendered stateless.

With respect to the right of a person to stay in a country, the European Court of Human Rights, in the case of Hoti v. Croatia,  has ruled that a person who has lived in a country for a very long time cannot be thrown out. 

While India hasn’t ratified the two international conventions on statelessness, Article 21 can be read in a manner such that a person cannot be rendered stateless, because without citizenship one will not have any dignity. Statelessness is the absence of rights. Hannah Arendt has called it civil death. Therefore, Article 21 will prevent a person from being made stateless.

NM: The objective of the National Register of Citizens in Assam was to identify illegal migrants, a long-standing demand of the Assam movement, which found expression in Clause 5 of the Assam Accord and Section 6A of the Citizenship Act, 1955.  Do you think that the NRC has been successful in fulfilling this objective?

OL: I don’t know whether the NRC has failed in its objective but the rhetoric of illegal immigrants is questionable. There are no authoritative findings which prove that there are a large number of immigrants in Assam. The Supreme Court has relied on Governor S.K. Sinha’s report. However, what is the authority of a Governor to make such a report? He is a Governor not the Government.

He did it in his personal capacity and not as the head of the State of Assam. As a Governor does he have this authority? What was the methodology by which he arrived at these numbers?

The works based on census reports does not reveal a significant amount of illegal immigration from our neighbouring countries. There may be illegal immigration but not as much as has been made out to be by the S.K. Sinha report.

An independent enquiry on the question of illegal immigrants should be made and if the committee concludes that there are a large number of illegal migrants they should be deported to their country. But which country do you deport them to? If it is Bangladesh then you cannot do so unless the Bangladeshi government accepts them as their citizens.

In its judgment in Assam Sanmilita Mahasangha, the Supreme Court directed the Indian government to speak with their Bangladeshi counterpart to discuss deportation. However, this was not implemented. The acceptance of the Bangladesh government may depend on the process that India uses to detect illegal immigrants. If the process is agreed upon by both countries then if someone is found to be a Bangladeshi immigrant, the government will take them back.

There are many instances of people extending their travel visas and continuing their stay. Article 36 of the Vienna Convention on Consular Access requires the government to inform consular authorities about an arrest. If the Bangladesh authorities find that a person who has been arrested for overstaying their visa is a Bangladeshi citizen then they will take them back. The Kulbhushan Jadhav case, which was fought before the ICJ, dealt with the issue of giving consular access to a foreign national. And if consular access is not given, civil society organisations intervene and contact the government of the country from which the person originates.

In the paragraphs above, I am referring to cases in which immigrants are involved. But the NRC is not directly related to such immigrants; the NRC is a process to deprive people who have been living in Assam for generations together of their rights as a citizen.

Even the Prime Minister of India has assured Bangladesh that the NRC is an internal matter. This means there is no question of deportation — the NRC is simply an exercise to make people stateless.

Amnesty International India’s report titled Designed to Exclude shows that the FT members are pressured to declare people as foreigners. There is a process of assessment of the performance of the FT members.  Declaring more people as foreigners is considered an assessment of excellence. Comparatively, the members who declare less people as foreigners are considered to have performed poorly.

Most of the FT members are on contract and they are under tremendous pressure to declare as many people as foreigners as possible. Apart from this, the Gauhati High Court (HC) has generated a sort of jurisprudence on the foreigner tribunals. There are mainly two rules made by the HC (there is no legislative basis for them):

1. In proceedings before the FT oral evidence has no significance.

2. If a document bears an unauthorised impression of a national emblem then it is not admissible.

For establishing linkage, often, women produce a certificate issued by the elected local government (Panchayat president). Panchayat presidents function under Assam’s Panchayat Act. Under the Prevention of Misuse of National Emblem Act 2005, and the Rules made in 2007 there is a schedule enumerating the authorities who can use the national emblem. Panchayat presidents are not allowed to use the national emblem. But they continue to do so.

So when the certificate is produced by the Panchayat president saying that he knows of this person and that they are the son/daughter of so and so whose name appears in the 1971 voter list, this certificate of proof of relationship is not admitted. This is because it uses the national emblem. However, no Panchayat president is ever prosecuted for wrongful usage.

In India the only thing which is considered to determine admissibility of evidence is relevance. If it is relevant it is admissible (the latest judgment on the matter is the verdict of the 3 judge bench in the Rafale review case). If a document is obtained through  criminal or illegal means it is still admissible if it is relevant. But the HC ignores this rule when it comes to trials under the Foreigners Act, 1946

So the first rule excludes oral evidence and the second rule excludes the documents that are available to many people.

These rules make it easier for the FTs to declare people as foreigners.

In most cases people fail to establish relationships with their parents. Section 50 of the Evidence Act, which lays down the evidence that can be used to prove a relationship, is also ignored.

In some cases oral evidence is recorded but not discussed in the decision by the FT or HC. According to the HC oral evidence has no significance before the FT. By excluding oral evidence, the HC has also disregarded the Supreme Court’s decision in the case of  Lal Babu Hussein v. Electoral Registration Officer. While the judgment does not directly deal with the admissibility of oral evidence, it assumes the admissibility of all types of evidence before the court in citizenship matters. 

NM: Recently, at a lecture at the National University of Juridical Sciences (NUJS), you said that the NRC process is exclusionary and discriminatory towards women in general and women from marginalised communities in particular. Can you elaborate?

OL: In 2016, I was sitting in a courtroom in the Gauhati HC. The bench was dealing with challenges filed against FT orders. The Presiding Judge, who is now the CJI of Sikkim HC, Justice A.K. Goswami asked why most of the challenges to FT orders were filed by women.

It is simple — more women are declared as foreigners by the FT which is why more women come to the High Court. It was a general observation made by the Court so the lawyer arguing did not answer Justice Goswami. But the question remains.

Most people who are declared as foreigners belong to the poorest section of the society. These people are uneducated and don’t have a board exam certificate or a birth certificate which can be used to prove relationship with their parents which in turn proves their citizenship. Additionally, the registration of marriage, particularly in the Muslim community, was not compulsory. It was made compulsory by an SC judgment pronounced much later.  However, even after it was made compulsory, a marriage that is not registered is still valid. As a result, many women do not have marriage certificates. Lastly, though the law gives women the right to inherit property, in practice this does not happen in most cases. As a result, often, women are unable to produce documentary proof to establish a relationship, particularly with their fathers.

In the case of men, some of them study up to matriculation and have board certificates. Those who do not have board certificates have land documents on which they mutate their name in the place of parents. They can use this document to show their relationship with their father. Men also put their father’s name on the voter list.

Women are frequently married before the age of 18 (even after the Child Marriage Act was enacted in 2006). So a young woman who marries before attaining majority  cannot enrol herself in the voter’s list of her paternal home; thereby proving that she is daughter of her father. So she enrols her name after she attains majority. Since she is already married, she uses her husband’s name in the voter list and not her father’s. So, the voter list does not help her to prove her relationship with her father.

There are several other reasons why women are excluded from the NRC, most of them deeply rooted in patriarchy. I have also heard of cases where a woman, who has left her husband’s house because of a domestic dispute, gets a notice at her matrimonial home. Because of the domestic dispute, the husband does not communicate the receipt of the notice. As a result, an ex parte order is passed against her. 

The reasons I have mentioned are not exhaustive. If fieldwork is conducted there are many other reasons that will come up. For example, if a family receives a notice from an FT in the name of a woman then too much importance will not be given to it. This is because a woman is not thought of as a very important member of the family. Even if the family appoints a lawyer, they will look for a cheap lawyer and won’t make too much of an effort to collect the documents that are required.

NM: Persons excluded from the NRC were supposed to receive rejection orders by March. Thereafter, the appeals process would begin. Now, because of COVID-19 and the catastrophic floods, the rejection process has been paused. How do you expect the appeals process to proceed? And how has the pandemic affected the lives of the people whose citizenship is in limbo?

OL: I am not sure. I saw a statement attributed to the new state coordinator of the NRC or an official from his office saying that they were in the process of preparing the rejection orders. However, due to technical problems in the database of the information preservation system, the data needed to be re-entered. This process of re-entry of data will take a few months.

But this pandemic has devastated the lives of people;  people have lost their jobs and there is scarcity of means to attain a livelihood. So even if the appeals process starts after the pandemic ends, it will be very difficult for these people because they will still be struggling to sustain themselves.

NM: As someone associated with the Barak Human Rights Protection Committee, what do you think is the role of broader civil society in resolving the question of citizenship and migration in Assam?

OL: A few years back I tried to speak with people who were working with human rights groups to make a position on this issue. If by civil society, you mean the human rights community, I think these people should come together and take a clear position on these issues.

The other part of the civil society, that is, bar associations, employees associations, the leadership of whom are members of the dominant communities, are not bothered about what is happening to the people excluded from the NRC.

 Even the people who profess to work from a human rights perspective are divided on the issue on ethnic lines. But some groups — for example, some women’s right organisations have taken a stand on one or two issues. However, even they haven’t taken a collective position and dealt with the NRC issue as a whole.  If an initiative is taken to get these human rights organisations to work together it will be much better. 

NM: Several FT lawyers have spoken of harassment and stigmatisation that they face due to the nature of their work. To add to that, a 2017 performance appraisal report of the members of the Foreigner Tribunals evinced that members who had declared a greater number of foreigners were more likely to be retained of their services in contrast to those who had declared fewer foreigners.

As an FT lawyer who has contended with threats and is arguing before a tribunal that is potentially prejudiced, what has been your experience? What motivates you to continue taking up citizenship law matters?

OL: I don’t appear before the FT very often because my practice is primarily before the HC. So personally, I haven’t faced one which is remotely uncomfortable. But I have heard about this from other lawyers. The newspapers had also reported a case of a scuffle within the courtroom.

But there were two cases that I recently dealt with — an interlocutory application was filed in both the cases but the application was not taken on record. So the lawyer in the case contacted me. I advised him to approach the local bar association. A delegation of the bar association spoke to the tribunal member but the application was still not taken on record.  Our request was only for the member to take it on record, if he felt that it was not sustainable the tribunal could reject it by passing an order. Then, I filed a writ petition before the HC, which directed the tribunal to accept the application

This shows that some of the tribunals are hostile towards the lawyers and they don’t even follow the minimum rule of procedures.

Natasha Maheshwari is a 5th year student at Maharashtra National Law University Mumbai. She is a core team member at Parichay.

“I’m too hungry to think of the Pandemic”: An Interview with Iftikar Hussain Siddique from Assam

Iftikar Hussain Siddique is a paralegal in Assam doing his part in ameliorating the conditions of those whose names are excluded from the NRC. This interview seeks to unearth the on-ground realities of Assam as it withstands floods, a pandemic and an identity crisis begotten by the NRC process. Mr. Siddique recounts his encounters and stories highlighting the condition of Assam at the juncture of this confluence of issues. 

This interview has been edited for clarity and length. 

Aarushi Mittal: Thank you for agreeing to speak to us. Can you tell us a little bit about your work, and how you came to be working as a paralegal?

Iftikar Hussain Siddique: My work includes helping those who are excluded from the NRC List. My aim is to help those from our community who fall within the weaker section of the society. In my initial years, I tried to ensure a healthy and hygienic environment for children. It was around this time that I started helping D-voters in getting their case through along with advocates. Essentially, I assist people in filling up the forms that need to be submitted. Since a sizable proportion of the population is uneducated, they need some sort of help in filling these forms and understanding what they entail. 

Since these are uneducated people, they don’t know where their thumb impression needs to be put or if one needs to be put at all. They tend to ask around for help from shop owners. They don’t know anything which is written in the form. This is where my role begins. Further, I also help them in checking if their name is on the list. My friends and I assist them in formulating their claims to citizenship. We were guided by lawyer Aman Wadud in this regard. This is how we tried to help people on the grassroot level. We prepare them for hearings by explaining what all needed to be said and what documents had to be submitted. 

Sometimes the biometric machines do not function, so we collected data on which places need a functioning biometric machine to ensure that procedure was not stopped. It is important to submit certain documents, while others are often ruled to be redundant. For instance, many people had submitted their Panchayat documents which were not accepted by the courts as valid proof of citizenship. So, we tried to help them collate a different set of documents which could be submitted. 

AM: It has been one year since the final list of the NRC was released. Rejection slips stating the reasons for exclusion were supposed to have been issued to excluded persons, allowing them to file appeals. However, no rejection slip has been issued so far. What has been the impact of this delay on people?

IHS: A very funny yet very astounding impact of this has been with respect to marriages. People now ask whether the name of the prospective bride or groom is on the NRC and whether there has been any adjudication to that effect. There is no other standard. People who have returned from detention camps, their children are in most detriment. This is a major trouble. Halima Khatoon’s daughter is being rejected simply because her mother was declared a foreigner. This is reasoned by claiming there are chances of a legal appeal, and that they would have to pay for these cases by selling lands. 

On our part, we tried to help 2000+ families by providing them ration. It is absolutely imperative at this point in time when floods have wiped out fields and the pandemic has taken away work that such provisions be undertaken. People don’t have ration cards or any other means to procure a day’s meal. Many people in the detention camps do not have ration cards. While the government provided Rs.1000 to families, that is barely adequate. Jabeda Khatoon, who had submitted almost 15 documents and was still declared foreigner, had her entire house destroyed as a result of a cyclone. Aman sir tried to help out by contributing some money to fix her house. She was extremely sick and yet she couldn’t go to a hospital because of her status as a foreigner. We tried to get in touch with a few organizations to help her. With a family with no source of income, the cyclone, pandemic, and NRC impacted her greatly. 

In this one river island, there was almost 5 feet of water. The people would survive on barely any meals.  There had been waterlogging for almost 2 months. We were able to help on the first day of Eid. This was a situation which existed across the spectrum. There was once a huge population among 52 households built of concrete, the floods barely spared a few. These people definitely get impacted. The delay creates trouble in that sense. 

AM: Assam has faced the twin blows of COVID-19 and floods.You personally have been involved in a lot of relief work in lower Assam. In your observations, how has this situation impacted persons left out of the NRC? Has there been any government aid? 

IHS: The first lockdown was of 21 days. Those who left their houses were beaten up. Further, there was no sale of food grains. Social distancing is a luxury, one which no one can afford. People can’t leave homes, and even if they do, they don’t have a market for their grains since people aren’t leaving homes. Before COVID, hunger was enough of a concern. The pandemic was not a concern for poor people, hunger was. People would say that they were too hungry to think of COVID. 

Another issue is the weakened health conditions of those in the detention camps. This is exacerbated with the onset of the pandemic.  One by the name of Rajkumar was a daily wager and was travelling to work, he was not aware of the imposition of the lockdown. The police ended up beating him up badly for flouting the lockdown rules. Daily wagers are severely impacted. 

The government is only concerned with testing for people who are COVID-19 positive. The political parties come door to door to spread their agenda. They advertise schemes. The Health Minister himself does not wear a mask. The BJP representatives are flouting the norms of social distancing left and right. In furtherance of the elections which were slated to happen, too many meetings are held and there is no social distancing or use of masks. 

Guwahati has some restrictions, but these are being flouted by political parties. People don’t trust the hospitals. They just buy medicines and stay home. I believe that Modi and Trump both would simply use the pandemic as an excuse for inefficient functioning. So, they are causing COVID to worsen to bolster their excuses. People have tried to reduce their expenditure on subsidiary items like clothing or going out. The poor Muslim people have been targeted specifically and deemed to be the cause of the spread. They are making a disease communal. While the doctors are cooperative, the media has portrayed a communal image. 

The masks are not provided, the government should be distributing masks. The hospitals are not good, doctors are not treating patients properly. Those who are positive are caught and after two days they are released. No containment zone is being made. The people who are positive are not being treated adequately. Hygiene again is a luxury – when a person cannot afford food, how are they to buy sanitizers. The government spends so much money on ancillary things like prizes to state toppers – this is not the time to make such promises. You need these funds to fight COVID. The NGOs must be employed in this regard too. People don’t have soaps to take a bath, hand washing is not possible. The pandemic is for the rich to worry about. 

AM: We know that persons declared foreigners by the Foreigners Tribunals are being detained in detention camps. What are the conditions within these camps? There is a stand-alone detention camp coming up in Goalpara–what is the status of that camp? How have local communities near the construction site reacted to the presence of the detention centre?

IHS: Jails had quite a few cases since they have people coming from outside. If one person is positive then all would be positive: jails were sealed and people testing positive were removed. The Supreme Court ordered that those who had been in the camps for over 2 years be released. As a result of the same, less than 50% people were released. 

However, now those who leave the camps, they will have to go to the police stations. This has caused a spike in the number of COVID-19 cases in Police stations. Those with COVID-19 still have to travel once a week. One person, who had to walk to a police station for almost 2 hours, had COVID. I asked him to inform the officers as him going to the station would not be safe for the police station in any way. The police asked him to come next week. There is no proper system in place. These people should not be asked to traverse to these stations at a time like this for a few months. Public transport is not functioning, police stations are far off and women cannot cycle to these stations. People need to walk for hours on end and be exposed to the risk of contracting a deadly disease. There is a need for intervention to that effect. 

As for Foreigners Tribunals, they are not currently functioning. The Buksa District Tribunal, however, has sent multiple notices. People do not have money, and these notices are released. Now they need to pay lawyers for this. People cannot fight these cases. They say that they’d rather have poison than exist like this. I cannot sleep listening to these stories. I do not know how I would tackle these situations. One person goes through multiple trials and tribulations with reference to their identity as an Indian. I’ve stopped asking people because it disheartens me so much. 

The detention camp in Goalpara had stopped construction initially and now it has begun again recently. Those who are excluded are really suffering. People keep asking me questions on how to ensure citizenship. They wake me up at 5 AM asking me how to go about this. I tell them that once the process begins again, I will help. The process of scanning documents has recently begun, they have started curating speaking orders. However, official documents still remain inaccessible.  

It’s great for government teachers, the lockdown, they can work at home. The poor people however are in too much pain. This one person had no money whatsoever and we gave him some money. We tried to give some food to people — however so many people came that we had to call the police to calm the crowd. People require food. If you give food to one person, multiple people come for it. Parents ask for food for their children. This one time, I gave one packet of biscuit to this one child and he ran off. It made me cry. His mother kept weeping outside my house. She was a widow. She couldn’t reconcile with the reality that had befallen her. 

AM: Have the FTs been functioning during the pandemic? If yes, do you think adequate measures are being taken to make sure that people are able to receive a fair trial?. Are cases dismissed hurriedly given that there was a pandemic or is the pandemic being used as an excuse to deny due process?

IHS: The advocates have lost a lot of money as a result of this lockdown. They used to earn a lot of money in these proceedings. What will happen is that they will now increase their charges for the case. This would further deprive people of the justice that they deserve. People will receive lesser money for their assets due to the lockdown. There might be people who are witness to some cases. If they are casualties to the pandemic, someone loses their chance at citizenship. People might not be able to come. People are not able to procure documents. It takes about 15 days to get documents, this is effectively delayed. People need to apply for certified copies. If these offices do not have officers however, they cannot procure such certified documents. The District Collector’s offices cannot be approached by outside people. How are they to fight cases?

The 6th citizen concept has become the talk of the town recently as a result of Clause 6 of the Assam Accord. People will be deprived of political rights, rights to buy land, or get jobs. In 1950, many places were really backward, they were not consulted in the first consensus. They remain unnamed. This would be highly unfair. It is a really bad situation. The 200 members appointed for the FT aren’t doing anything, they are just being paid taxpayers’ money. The staff that has been appointed to operate computers and all are not being paid salaries since March. They need to cover costs on their own. The system is not at all effective or people friendly. The reverification is also being discussed. People are being harassed. It’s a politically motivated system of harassment. Nobody knows how the government plans to tackle this. It eludes everyone, it’s only politics.

Aarushi Mittal is a 3rd year law student at West Bengal National University of Juridical Sciences. She is a research volunteer with Parichay.

Interview with Swati Bidhan Baruah

Swati Bidhan Baruah is a vocal advocate for the plight of the transgender community in Assam. Not only was Ms. Baruah Gauhati University’s first transgender law student, but she also went on to become Assam’s first transgender judge. Ms. Baruah has fought and won several cases for the recognition of trans rights. Her organization, the All Assam Transgender Association, has been consistently working towards the realisation of the rights of the transgender community.

This interview has been edited for length and clarity.

Natasha Maheshwari: Ms. Baruah, you filed a plea before the Supreme Court against the exclusion of 2000 persons belonging to the transgender community from the National Register of Citizens (‘NRC’). What motivated you to file the case? What was the Supreme Court’s response? Were they sympathetic to the problems of the community?

Swati Bidhan Baruah: Many transgender persons are abandoned or disowned by their families. When they leave their homes in search of a community, they stay with us. Neither do they have any connection with their parental homes nor any documentation that can help them establish linkage with their parents or guardians.  In such a situation, will they be termed as foreigners? Are they not citizens of India? 

Additionally, the first step of the NRC process i.e. the NRC form, allowed persons to choose from three gender categories — male, female, and other. By including the ‘other’ category, trans persons were given the right to identify themselves. However, when the first draft of the NRC was published, many trans persons found themselves to be excluded from the list. That is when I spoke to Mr Prateek Hajela, the then NRC Coordinator. Mr Hajela assured me that the government will implement the necessary evolving principles required to ensure the inclusion of members of the transgender community. This would be done through a claims and objections procedure. 

But the claims and objections procedure forced trans persons to identify as either ‘male’ and ‘female’, i.e. the ‘other’ category was not included. Now, let’s assume that I chose to identify my gender as ‘other’ while filling the NRC form and later, did not find myself included in the first draft of the NRC. While filing a claim or an objection, the ‘other’ category was not mentioned, thereby forcing me to identify as either male or female. So on one hand, the NRC process purports to allow trans persons to participate in it while simultaneously disallowing us from identifying ourselves. This process is violative of the 2014 NALSA judgment which gave trans persons the right to self identify in addition to leading to discrepancies in data thereby leading to problems in proving citizenship. 

When I spoke to Prateek Hajela about this he did not provide us with a satisfactory response. This is why we found it imperative to file an intervention application before the Supreme Court. 

[The NRC] is also violative of the rights of orphaned children. How are they supposed to identify themselves as citizens? In order to be included in the NRC, you have to show the authorities your family tree and establish linkage parents. That becomes impossible.

In the court, the ex-CJI told us that we have missed the bus, the Court could not restart the procedure [to ensure our inclusion].  My submission is that if we have missed the bus, aren’t trains and flights available? Why do they not want to accommodate us? However, the Supreme Court did not dismiss our petition. They kept it standing and issued notice to the State Government. The matter is still pending. 

NM: What is the experience of the transgender community in Assam during the NRC? Were the NRC Seva Kendras (‘NSKs’) receptive to the trans community’s complaints? Did they help members of the community to look for their legacy data?  What has been the community’s experience in producing legacy and linkage documents necessary for inclusion in the NRC been?

SBB: The officers at the NRC Seva Kendras were extremely insensitive. Most members of the trans community do not have any documents to prove their citizenship; the government has not taken any initiative to recognise them. As a result they find themselves excluded from the NRC process. 

The officers did not allow us to enter the Seva Kendra. Often, quarrels took between trans persons and officials. But this has not been highlighted by the media. I believe that the media plays a very important role in sensitising members of the society and officers of the government. It is very important that the NALSA judgment is implemented so that our rights are realised and recognised. 

The NRC process requires you to enclose documents to show your father’s presence in the country before the year 1971. Thereafter, you have to produce your birth or school certificates to establish a relationship with your father. This entire process is violative [of trans rights] and doesn’t have any evolving principles. 

Most trans people do not have documentation that will enable them to prove citizenship. Let me give you an example: let us assume, before transitioning, you were a boy, your name was Rahul. Now, you have transitioned to a girl and your name is Reshma. How do you prove that Rahul is Reshma? The state government is responsible for ensuring that trans persons possess documentation to show that Rahul and Reshma are one and the same person. A few trans persons left home at an older age and still recognise their parents or know of their whereabouts. When they visited their parental homes, their parents refused to give them the required documents. So, in such cases, how do you expect them to produce documents that will enable them to prove citizenship and be enlisted in the NRC?

In 2018, the Ministry of Home Affairs published a report publishing its plans for a nationwide NRC. If the Government of India is planning to extend the NRC process to the entire country it will be a gross violation of the rights of the trans community and orphaned children. 

NM: What were the efforts made by civil society organisations to ensure the inclusion of transgender persons in the NRC? Was the government receptive to these efforts?

SBB: No efforts were made, they did not do anything to help us. Seeing the discrepancies in the NRC process, my organisation, the All Assam Transgender Association, filed an intervention application before the Supreme Court pleading for a trans friendly NRC. 

NM: How can the government make sure that transgender persons are included within the NRC, i.e., what would a trans-inclusive NRC look like?

SBB: I believe that the government should keep the trans community in mind before initiating any process (and I am not referring to the NRC alone). They should recognise us as a part of society, we should not be alienated and marginalised. Keeping in mind the Supreme Court’s judgment in the NALSA case, the government should evolve a process that is trans friendly. Necessary principles need to be framed specifically for the trans community. If a trans person does not have documents then self-identification should suffice and be accepted as a valid document. If NRC Seva Kendras can exist for men and women, why can’t transgender persons have one?

NM: In 2018, the United Nations raised concerns of the purposeful exclusion of minority groups from the NRC by the local authorities. Do you agree with this concern?

SBB: Yes, I do. The NRC should not violate anyone’s interest. And I am not referring to trans persons only. For example, take yourself, you are born and educated in India. You are religious to the motherland. If someone comes and initiates a process that might declare you as a foreigner, how will that make you feel? It is very problematic!

Instead of implementing an NRC, I believe that the government should define the border.  This will prevent trespassing. There should also be an Inner Line Permit in the state along with a law to protect the interest of domiciles. So, there are other ways to protect the rights of the indigenous communities. The NRC is an extremely regressive alternative.

NM: Foreigners’ Tribunals (‘FTs’) are vested with extraordinary power due to the highly restricted criterion for judicial review. They are also allowed to evolve their own rules of procedure. As Assam’s first transgender judge, what is your opinion on the competence of the Foreigners’ Tribunals, which are quasi-judicial bodies, and its members to decide a person’s citizenship?

SBB: They may be vested with extraordinary powers but their orders are often challenged before the High Court and Supreme Court. They are also quashed, if need be. So there is nothing to worry about. A discrepancy, if any, seems to have arisen in ensuring the appointment of FT member judges. After the NRC process was completed. the government was supposed to set up more Tribunals to ensure justice to the persons excluded from the NRC. However, despite the selection of 200 member judges, their appointment has not been disbursed. And yes, there is executive interference and bureaucratic resistance in the functioning of the FTs.Of course, it is a matter of concern. But, in respect of matters concerning transgender persons, if we find any discrepancies in the FT orders, we will challenge them in addition to questioning the credibility of the FT member. 

NM: What, in your opinion, has been the role of the Gauhati High Court in upholding due process in cases before Foreigners’ Tribunals?

SBB: Several Muslims were excluded from the NRC solely because of their name. Suppose a man’s surname is Ali, but his father’s surname was Hussain and his mother’s surname was Begum. Now this man has given birth to 4 children. So one child uses Ali as his surname, another writes Hussain, and the third writes Begum. Their surnames do not match with each other and as a result they were declared as foreigners. The Gauhati High Court intervened in cases like these and rectified the judgment of the FTs. Of course, the court is the ultimate remedy. We must have some faith in the judiciary. There are good judges with a strong conscience who have expanded the area of jurisprudence and rectified the mistakes of the FTs. 

Natasha Maheshwari is a fifth-year law student at Maharashtra National Law University Mumbai.

Interview with Aman Wadud

Aman Wadud is a practicing lawyer in Assam, where he provides ground-level legal services and support to those who are at risk of being stripped of their citizenship status, owing to the National Register of Citizens (‘NRC’) process. He appears before the Guwahati High Court and the Foreigners Tribunals in Assam, and has also argued before the Supreme Court of India. His voice has been crucial in highlighting the ethnic and religious prejudices in the adjudication of citizenship in Assam. Apart from his litigation practice, Aman was heavily involved in the NRC process which involved travelling across Assam to spread awareness about the Court-monitored NRC. He has recently received the Fulbright-Nehru Master’s Fellowship for 2021-22, and hopes to continue to build on his work through this opportunity. In this interview, we discuss his work, citizenship adjudication in Assam, and the recent petition regarding the release of detainees in light of COVID-19.

This interview has been edited for clarity and length.

Devashri Mishra: I hope to discuss themes and questions which derive from your previous interviews, public appearances, talks delivered in colleges, your engagement with Parichay, and your work. But before any of that, congratulations on receiving the Fulbright-Nehru Master’s Fellowship for 2021-22! Can you tell us about what inspired you to apply for the Fellowship and how you believe it aligns with your work? 

Aman Wadud: Thank you so much for inviting me to do this. 

Earlier this year I was in the United States, where I was invited to speak at the Harvard India Conference at the Harvard Kennedy School. I was also invited to Harvard Law School, Columbia Law School, Yale Law School, Massachusetts Institute of Technology. I met a lot of professors, scholars, lawyers, and I ended my trip with testifying before the United States Commission on International Religious Freedom Hearing on Citizenship Laws and Religious Freedom, where I was a witness. Through this trip, I realized that an advanced degree in the United States will help my cause, widen my perspective and enrich my knowledge on International Human Rights Law, and comparative constitutional law. I want to understand how citizenship is defined in different constitutional settings and the application of citizenship laws. The jus soli concept came into being in the United States through the 14th Amendment in 1868, almost 150 years ago. The law has not changed till now, and anyone born in the US is a citizen by birth. Although when our republic was founded, citizenship was granted on the basis of the principle of jus soli citizenship, this slowly got diluted into the principle of jus sanguinis. This was still further diluted in the  Citizenship (Amendment) Act, 2003 and now, both parents are required to be Indian citizens. Since my work is centred around citizenship law, and I work before the Foreigners Tribunals (FTs), and High Court, I think that an LL.M. with a focus on human rights and comparative constitutional law will benefit my cause. Apart from my litigation, I’m also involved in advocacy work on statelessness. Around 135,000 people have already been declared to be foreigners in Assam and have been rendered stateless, along with their family members. Considering that most of my cases are pro bono, this prestigious Fellowship will allow me to study as it covers all basic expenses and will additionally provide me a small stipend. The network that I will build through this Fellowship will help me with my work as well. 

DM: Absolutely, and I think we’re all eager to see how your work carries forward after your stint in the US! We were extremely happy to hear this news here at Parichay, and we’re certain you’ve been getting similarly warm reactions from everywhere. There have been a few articles and social media reactions which indicate that you’re one of the first North-East Indians to receive this Fellowship – is this true? 

AW: Actually, I’m only the second North East Indian to receive this Fellowship in international legal studies, the first was Babloo Loitongbam from Manipur who received this Fellowship in 2004, sixteen years ago! In this category of legal studies, I’m the first from Assam. In terms of the response I’ve received, I’m overwhelmed. Look, to apply for this Fellowship, you need 3 years of experience, and I’ve had 10 years of experience and I’m deeply involved with the cause of fighting citizenship cases. I must have the blessings of a lot of people that I get so much love for my work. Over the years, because of the citizenship cause becoming a movement, I have received many calls and emails, inviting me to speak at several events. That’s probably why people relate with me, and maybe even because I use my Twitter handle quite effectively in furthering my cause. We have to keep in mind that no one was speaking for the cause of citizenship, and it only became fancy to do so only when the NRC list was released, and again when the CAA protests broke out on a national level. Before that, no one spoke about it. I have been working on this since 2014, and continuously speaking about it, possibly that is why people are emotionally related to me. In Assam, I think people know me because cases of the disadvantaged are referred to me from almost every sub-division of the state, and I’ve fought all these cases. These cases have taken me to many places in Assam, and I also travel for meetings and legal awareness, and for training lawyers here. That way, I know a lot of people and a lot of people know me! I’ve been working sincerely, and working really hard, and so by the grace of God, that may be why many are able to relate with me. I’m overwhelmed by the love and wishes I’ve received over the last few days!

DM: What you said about the rise in the debate around citizenship post the NRC coming about, and more so when the CAA was passed, is a very visible development, even in academic circles in law schools. The conversation around citizenship caught on significantly at the national level only recently, and it seems to be on an exponential rise. How do you think this development is seen by those living this reality everyday?

AW: In law schools, people have started taking interest in this. I’ve spoken to professors who admit that they used to skip the citizenship provisions while teaching constitutional law, and would skip to other chapters. Most of them did this because it seemed unimportant at the time. But now, it has become a practical, and important aspect of constitutional law, even in teaching, and it is no longer something we can take for granted. Perhaps they thought it could never be questioned but finally, we know that there can be a process where everyone may have to prove their citizenship. And that is probably why the interest has increased. I wish people had taken cognizance of what is happening in Assam, which has been happening for a long time. If you go to Economic and Political Weekly you will find articles on Assam, otherwise hardly there was any writing, however, several scholars such as Anupama Roy, who are authorities in the field, have written a lot on the subject. But it has remained a relatively minor field in academics, and before the NRC or CAA debates, a citizenship issue was not considered fancy enough to discuss. 

It is regrettable that people did not give adequate attention to the citizenship crisis in Assam, possibly many lives could have been saved if they had. As you know, detention centers in Assam started in 2009, around 10 years ago, where people were being detained indefinitely. Finally, in 2018, Mr. Harsh Mander filed a petition before the Supreme Court, which reduced the period of detention to three years and it brought an end to indefinite detention. Thirty people have died in the last three years. If enough interest had been given to these issues by professors, academics, and students, possibly it would have made a huge difference to this number. But, I’m happy people are finally paying attention.

DM: To go back a little to your mention of your trip to the US earlier this year – particularly your witness testimony during the Hearings at the US Commission on International Religious Freedom. You spoke about how marginalised groups are adversely affected by the citizenship determination process, especially because many of them do not have documents. Can you tell us a little more about why marginalised groups struggle to provide documentary evidence of their citizenship?

AW: The nature of proving citizenship is such that it is entirely dependent on documentation. Because there is a prolonged problem of citizenship in Assam, the Bengali Muslim community, especially, has always been very careful about documentation. 

Firstly, the primary document is the Voter List, but since most people accused of being ‘illegal migrants’ are illiterate, there are often anomalies in the names in the Voter List. There are inconsistencies in titles especially for Muslims, the father could have the title Ali, while the son’s title is Ahmad, but this is not a concern for Muslims. But for Hindus, the title remains constant, except for women whose title changes upon marriage. So the Voter List has anomalies with age and name. 

Secondly, there is a huge problem of erosion in Assam. Every year, around 800 hectares of mainland is eroded by the Brahmaputra and Barak rivers. People become homeless and shift from one place to another, and they have to record their name to the village they move to. So, there is a different Voter List for their original home, and a different one in the village they have shifted to. For example, if the person’s name is Amjad Ali, the Tribunal may say that the Amjad Ali names on both Voter Lists are different and some other Amjad Ali has been picked up, especially if there is a difference in name and age which happens often owing to typographical or clerical errors. This causes a lot of problems for people who migrate, as the Tribunal is given more reason to doubt the veracity of the evidence. 

It is not only erosion, but because these are poor people, they do migrate for their livelihood, although this group constitutes a lesser number of people and those affected by river erosion are much more.

Thirdly, women are another vulnerable group in this context. Women get married early in Assam since the minimum age is 18 years now (earlier it was 21 years). They vote only after marriage because of being married at around the age of 18 itself, and they do so in their matrimonial home and not in their parental home. This is true for almost every woman who is accused of being an ‘illegal migrant’ in my experience, I have hardly come across any woman whose name is recorded with her parents on the Voter List. Thus, a woman’s name is usually recorded with the husband in the Voter List. This is how women lose the most important document to prove their citizenship, as the voter list is a public document which is not required to be proved by the issuing authority. So, a brother who comes to depose as a defense witness, can prove his citizenship as defense witness because of being able to prove a relationship with their father, but the sister is not able to do so, whose citizenship  is being questioned as she does not have documents to prove it. This is the most important problem here in documentation for proving citizenship. Apart from Voter List, a woman can rely on Gaon Panchayat certificates, school certificates, nikah namahs – which are all private documents. There are also jamabandi certificates which can be relied upon but those are rare since these are poor people, who do not generally part with their land, and especially not to give to their daughters or sisters. This is a big problem in every society, that women do not receive land. If they do, land documents are reliable documents , but need to be proved by the issuing authority. The bottom line is that if their names are not on the Voter List with parents, it is difficult to prove citizenship before the Tribunals. If a seasoned lawyer is approached with a woman’s case, they will immediately say it’s a bad case, or refuse to take the case. This is bad, and of course they should not do this, but they also think that this will be a difficult case so they refuse because of the absence of documentary evidence. They could rely on the deposition of relatives, under Section 50 of the Evidence Act, but in practice , this does not happen because oral evidence is hardly relied upon by the Tribunal. Even if the father himself comes to testify, the Tribunal says that oral evidence is not enough to prove citizenship. Now, with NRC, children’s documentation is also weak as a result, and I fear that they may become yet another vulnerable group in citizenship cases.

DM: So when those accused of being ‘illegal migrants’ are ‘declared foreigners’, they are taken to detention centres, which you mentioned earlier. You recently approached the Supreme Court (‘SC’) in a plea to release persons ‘declared foreigners’, under the Foreigners’ Act, 1946, from the detention centres in light of the COVID-19 pandemic. What are your thoughts on the role of the SC in releasing people stuck in detention centres throughout the COVID-19 lockdown? Was the Supreme Court’s decision and the administrative response as you and your team expected when you filed before the Court?

AW: The SC in regard to detention and citizenship matters, is not as sympathetic as it should be. We filed our petition because the Court had already taken up a suo moto case with regard to decongesting the prisons in the wake of the COVID-19 pandemic. We felt that since detention centres are located in prisons, detainees should be released on the same basis as prisoners being released to decongest prisons. So we filed this petition praying that all detainees should be released unconditionally, without the earlier conditions imposed by the Court, i.e, completion of three years in detention, and requirement to submit two sureties of INR 1 Lakh each upon release, and appearance before police station every week. Since these are very harsh conditions, we argued that being a ‘declared foreigner’ should not attract such penal consequences. Persons are purportedly detained for the purpose of deportation only, but since March 13, 2013, which is when the formal deportation procedure began, only four ‘declared foreigners’ have been deported as per the Assamese Government’s affidavit before the Supreme Court. So if they cannot be deported, why detain them? Thus we prayed that these conditions be done away with, and that everyone be released in wake of the Coronavirus Pandemic.

The Hon’ble Supreme Court was pleased to reduce the detention period from three to two years, and reduce the financial bond to be furnished to INR 5000. This is a welcome Order, and 350 people have already been released. People like Minara Begum, who was detained in 2010, could not be released earlier because of the onerous requirements of the financial bond to be furnished by sureties in the 2019 Order which reduced the detention period to three years. When the requirements were reduced this year, a lot of people came forward with INR 5000 and detainees could be released. When Minara Begum was detained in 2010, her daughter was only 15 days old, she grew up in the detention centre with her. Their release and numerous others’ release was secured because of the Hon’ble Supreme Court’s order in our petition. But, I very humbly disagree with the Order in the sense that I think it is unreasonable to even detain people for two years if there is no scope for deportation which is the stated purpose of detention. Persons released after three or two years, with the surety, still have to appear before the police station. Everyone can be asked to meet this condition of appearing before the police station. Surety can be taken to meet this requirement, and instead, the surety requiring these huge financial bonds can be dispensed with, and I am certain many will come forward to give surety as well. As I said, in the last three years, 30 people have died in the detention centres which anyway have pathetic conditions. Detainees are forced to live there without having committed any crime, which takes a huge toll and they are under huge mental trauma. I agree that it is a favourable decision and I bow down to the decision of the Hon’ble Supreme Court, but I had hoped the entire system of detention would be dispensed with. I would have been happy if each and everyone had been released. 

DM: In a recent interview, you spoke about the pressure on bureaucratic and judicial officials to manufacture foreigners where none exist. This raises a larger question of how the determination of citizenship should ideally take place. What are some of the best practices/legal principles that we should incorporate into our system, and are there jurisdictions which we can look to for guidance?

AW: Firstly, I wonder if there is even a citizenship determination process in other countries which is comparable to the way it is determined in India. I’ve researched a lot, but there is no process that can match the way it is done here. 

Secondly, the basic problem is that while all tribunals in India are set up under a legislation, Foreigners Tribunals are set up under an Executive Order. The foundation itself is wrong. In the 1964 Order too, there is a requirement for members to have judicial experience which has slowly been relaxed, and altogether dispensed with. Initially, lawyers with 10 years of experience were appointed, then in 2019 lawyers with 7 years of experience were appointed. I’ve come across several recent appointees who only enrolled as lawyers 7 year ago and many of them have not even been practicing lawyers. Many appointed to the Tribunal do not have adequate experience to deal with the most important right in the Constitution – citizenship rights. 

Citizenship is the most important constitutional right, and as it is often called, and it indeed is, the ‘right to have rights’. If you take away citizenship, you don’t have any rights. Although the Constitution of India states that Article 14 and 21 are applicable to everyone, in practicality this is not true. For eg — ‘declared foreigners’,  do not have any rights despite this constitutional guarantee. They are stripped of all possible rights to live a normal life. If you look at the composition of the Tribunals, it is easy to understand the problem, many members do not even know how to write an opinion, they are not familiar with fair trial procedures, principles of natural justice or the basic principles of the Evidence Act. Although the Hon’ble Gauhati High Court selects them, they are the appointees of the Home Department of the Government of Assam. In 2017, there were remarks in the performance appraisal reviews of these members, which said their performance was unsatisfactory only because they could not declare more people as foreigners. If members declare more people as Indian, then their performance is considered unsatisfactory. All Tribunal members are on a contractual basis of two years, and those selected in 2019 are on a contract of 1 year. Thus, maintaining a job through renewal by the Government requires that the rate of declared foreigners be high, because the Government is engaged in vendetta politics and they are hell bent to prove more people as foreigners. The report by Arunabh Saikia on Scroll where Tribunal members refer to citizenship as ‘wickets’ and how many ‘wickets’ each has taken — that’s how casually they look at it, and that’s how many members decide cases as well. 

Recently, in the Dhubri district of Assam, they replaced all the Muslim government pleaders with non-Muslim government pleaders. There should at least be some pretense of following due process, or of being fair, but the Government is brazen. There should be some representation, especially in Dhubri district where Muslims are the single-largest majority but they have all been replaced. It is clear that the government wants this process to work in a way that does not meet the standard of a fair trial. I can say this with full responsibility and conviction, that this process does not meet the fair trial standard. The investigative process makes a mockery of the guarantees in the Constitution because a fair investigation is part of the right to a fair trial. When I speak of the investigative process, I become speechless because there is no investigation to speak of, and anyone can be picked up randomly and be accused of being an ‘illegal migrant’. For example, my client Mohammad Sanaullah, who is an ex-army veteran who served the country for 30 years, who was in Manipur in a counter-insurgency operation, Hifazat, when the forged ‘confessional statement’ of  him of being an ‘illegal migrant’ was signed. Hifazat means security, and when he was securing his country, he was accused of being an illegal migrant by the Assam Border Police. I shudder at the thought. This is why I really wish that the academics, scholars, and law schools, who have taken so much interest in the citizenship issue now, had done so earlier. Injustice anywhere is a threat to justice everywhere, and because people did not speak up when injustice was happening in Assam, it is haunting us all over the country. Every person who believes in the rule of law, and the theory of justice, must speak out against the gross injustice happening in Assam. This is not what the founders of India envisaged, and our Constitution says that all are equal before the law, and that the rule of law is supreme. These kangaroo courts should not exist because they do not follow due process. As a responsible citizen, I feel very sorry that no one did enough to raise their voices. 

DM: It is of note though that while the rest of the country, and the world, did not pay attention to the issue in Assam keenly, you and other lawyers have continued this fight at the FTs there. As a young lawyer, what has been your experience working in the FTs? Within the community of lawyers, how has your experience with the Bar Association, and others litigating before the FTs panned out? Did you have a mentor to guide you in this process?

AW: With regard to upholding the Indian Constitution, and inspiring me to become a human rights lawyer, I had two mentors. Firstly, Mr. Prashant Bhushan with whom I interned in the SC in my fifth year, in January 2010. In 2014, I met Mr. Harsh Mander as well. Both of them mentored me in that sense. But my inspiration to litigate in the field of citizenship specifically is owed to the fact that I’ve been accused of being a Bangladeshi myself, by my batchmate in secondary school. While studying law, I initially wanted to appear for UPSC, but I realized I would lose my voice. I wanted to speak out about what was happening. I realized I needed to tell the stories of how people of Indian soil are accused of being illegal migrants in their own motherland. They are abused and massacred in the name of being illegal migrants. Although we elect MPs and MLAs, they don’t speak about these issues. Our leaders and representatives should speak, because they have social and physical security, unlike me. I’m faced with threats to my life and my career but I continue to speak because I cannot compromise on what I believe. That’s why I gave up my dream of writing the UPSC exam, because I want to speak the truth and tell my stories. The day I stop speaking the truth, I will not be able to live with dignity. And it’s not just about my dignity, but the right of the persecuted and marginalized and voiceless people  to live with dignity, that is what keeps me going. It is a right that predates the Constitution. It is an inherent right, the Constitution and the Hon’ble Supreme Court through various judgements only confirmed the right to live with dignity. Any person born in any country, whether Stateless or legal or illegal, possesses rights to live with dignity (The word ‘illegal migrant’ itself is wrong, but it is the language of the Citizenship Act, which is why I’m using this term.)

Several lawyers have fought these cases, but it was just a case for most of them, and not a cause. In 2014, I started fighting these cases and I realized that most of the people who approached me were rickshaw pullers or thela walas who could not pay my fees. I realized that I belong to a privileged background, so I was not after money but the core of it was that I empathize with them. Empathy, not sympathy, because I saw myself in their position, because I know I could be one of them. When I was in secondary school, a friend called me ‘Bangladeshi’ so if instead of him, it had been the Border Police, they would have referred my case to Tribunal and I would be standing in the FT defending my citizenship. I saw myself in their place and I started doing this pro bono. In 2016, someone from my nani’s (maternal grandmother) place who knew that I practiced in the Supreme Court approached me. Moinal Molla had been detained for two and a half years by then, because of an ex parte order declaring him to be a foreigner. Both of his parents were declared Indians by the same FT. His writ petition and review petition were dismissed by the High Court and they had no money to go to the Supreme Court. 

We had a small group of friends then, and I told them that this was a good opportunity to help someone and simultaneously get the word out about detention centres in Assam, and the arbitrary process of FTs by which one can be declared foreigner ex parte. In 2014, the issue was an elephant in the room in Assam which no one wanted to talk about, and outside Assam, no one knew. It was, and still is, a taboo to appear for the defense in these cases at the FTs or HC, they think they will get branded in a certain way, sadly. One of my friends told me that she will give her zakat money, and another friend also came forward. Eventually, we landed up in the SC, and we briefed Mr. Raju Ramachandran about the case. The case got remanded to the FT in Barpeta, Assam, where I appeared 11 times and fought his case fully pro bono. He was declared an Indian and released after 2 years, 11 months and 29 days of detention. This story got out when notice was issued for the SLP by the SC, and eventually when he was released, it made big news! There have been subsequent cases of Mihir Biswas, Kismat Ali, Ashraf Ali, Mohd. Azmal Haque, and Sanaullah, which I fought and tried to publicise to bring the focus the issue deserves. At least people are talking about it, even jurists like Faizan Mustafa are writing about the FTs being kangaroo courts, and rightly so. Constitutional experts and jurists are speaking about this now, and I wish it had happened sooner. The blame also does lie on the civil society in Assam, which could not tell the world what is happening, and we had to start it. 

DM: There is often this narrative around the NRC, that there is political consensus on the need for this exercise, but its implementation has alienated people. Is it true that this consensus exists and if yes, could it have been done in a way that could have been fair and independent? 

AW: There was no such consensus about NRC from all groups of people – why should everyone’s citizenship be scrutinized? But then the SC ordered that the 1951 NRC should be updated in Assam, and since it was the Hon’ble Supreme Court’s order, we took it very positively. We thought that if at all there should be scrutiny, a Court-monitored process would be better than merely an Executive process. We wanted closure – how long will one group of people accuse another group of being illegal migrants? We thought that this issue must end; every election is fought only on this issue. In 2016, BJP fought and won the election only on this migrant issue. Hence, the Bengali Hindus and the Muslims took part in the process very actively. Plenty of lawyers, civil rights activists, and organisations travelled all across Assam to create legal awareness about how to fill up the form. I was also one of the privileged people who got to travel all over Assam, particularly the minority dominated areas, and I told the people I met, in each and every meeting, that this is a Court-monitored process so they should have faith in the Supreme Court of India. I assured them it would be a free and fair NRC, but the process turned out to be very harsh. There were several rounds of scrutiny, but people thought that “This is the last time going through this process, after this, do not accuse and abuse us as foreigners, let there be closure!” 

The Supreme Court quoted Shri Prakash Jaiswal’s statement before the Parliament about ‘5 millions illegal migrants’. Although, Shri Prakash Jaiswal himself withdrew that comment, this withdrawal was not recorded and the SC recorded only his first statement. After the process, only 1.9 million people were excluded. We found that many relatives, including my own cousins, were excluded from the NRC, which is how these numbers reached 1.9 million. But, in an Economic Times report, NRC authorities say that apparently names included in the NRC were deleted later on. In June, the NRC authorities issued another order for rectifying the Order which excluded people. What can be more outrageous than this? After excluding people from citizenship in an Order, they turned around to say that there are anomalies in that Order! Citizenship is not a petty thing. After the NRC list was out, when 1.9 million were excluded, the supporters of NRC began speaking against it. 

Today, we say – notify the NRC, and confirm it. There were 3.29 million people who applied for it, and 1.9 million have been excluded, so the others should receive the national identity card. That is the requirement under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. More than one year later, nothing has happened. Within a week, excluded people were supposed to receive rejection orders so that they could appear before the FT. The Guwahati HC selected 200 people to be appointed to the FTs in 2019 as I mentioned earlier, who are taking salaries of around INR 85,000 without doing any work, through taxpayers’ money. There is no issuance of notice because the very people who advocated the NRC found that their propaganda did not match the reality because allegedly there is ‘less exclusion’ so they do not accept this NRC. Now, the Home Minister says there will be another NRC in Assam, and the BJP government in Assam also says that they will scrap the NRC to hold another round of NRC, recently they stated they want re-verification. INR 1600 Crores were spent only by the Government in this exercise, which involved 55,000 Government employees, and these costs do not even include the costs incurred by the common people travelling across the State. People went through a lot of harassment during the process, and some even committed suicide for fear of losing their citizenship. How can you ask people again to produce documents in the name of re-verification? This would be a betrayal of the faith which people reposed in the Supreme Court when the Court ordered that the government update the NRC.

Devashri Mishra is a fifth-year B.A. LL.B. (Hons.) student at West Bengal National University of Juridical Sciences, Kolkata. She is a member of the Parichay Blog Team.

Interview with Prof. Niraja Gopal Jayal

Niraja Gopal Jayal is Professor at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi and Centennial Professor at the Department of Gender Studies, London School of Economics, London.  Her scholarship has focussed on citizenship, democracy, and governance. Her book Citizenship and Its Discontents (Harvard University Press, 2013) won the Ananda Kentish Coomaraswamy Prize of the Association of Asian Studies in 2015. Her other books include Representing India: Ethnic Diversity and the Governance of Public Institutions (Palgrave Macmillan, 2006) and Democracy and the State: Welfare, Secularism and Development in Contemporary India (Oxford University Press, 2019). She has also edited Re-Forming India: the Nation Today (Penguin Random House, 2019) and Democracy in India (Oxford University Press, 2009), and has co-edited The Oxford Companion to Politics in India (Oxford University Press, 2010); Local Governance in India: Decentralization and Beyond (Oxford University Press, 2005); and Interrogating Social Capital: The Indian Experience (Sage, 2004), among others. She has held visiting appointments at King’s College, London; EHESS, Paris; Princeton University; University of Melbourne; and University of New South Wales.  In 2009, she delivered the Radhakrishnan Memorial Lecture at All Souls College, University of Oxford. Some of her recent articles and op-eds can be found here and here.

This interview was conducted over email and has been edited for length. 

Arunima Nair: Current arguments around citizenship have frequently highlighted a shift: that Indian laws have moved from citizenship based on birth in Indian territory (jus soli), to citizenship based on descent (jus sanguinis). In your book Citizenship and Its Discontents, you argue that India’s trajectory is not quite this linear. Could you elaborate on this?

Niraja Gopal Jayal: That was an argument about the historical trajectory of the idea of citizenship. The questioning of the linear narrative in my book (which, by the way, was published in 2013, when I did not anticipate that the CAA would gather such momentum in just a few years) was an attempt to jog historical memory and remind ourselves that jus soli was such an embattled idea even in the moment of constitution-making. Though it was eventually endorsed by the Constituent Assembly, Dr. Ambedkar alluded to how contentious it had been when he described the drafting of it as a “headache.” Subsequently, the Citizenship Act 1955 expressed this unambiguously, and the process of attrition only began in 1986 with the amendment to give effect to the Assam Accord of 1985. So we saw, first, the emergence of a conditional jus soli – citizenship by birth available unconditionally, and regardless of their parentage, only to those born before 1987, while a person born in India between 1987 and 2003 was required to have one parent who is an Indian citizen. From 2004, this became even more restrictive, making ineligible for citizenship by birth a person born in India who has one parent who is an “illegal migrant” at the time of his or her birth. The debates around these amendments articulate the very prejudices and arguments heard for a restrictive conception of citizenship in the Constituent Assembly. They are a sign of the constitutional settlement having been less stable than we assumed it to be.

AN: Are ‘refugee’ and ‘migrant’ used interchangeably in Indian politics? What are the histories of these words and their usage in India? 

NGJ: Before I explain the distinction, please note that the word migrant in India has in popular parlance (at least till before the migrant workers’ crisis in the shadow of the pandemic) been prefixed by the word ‘illegal.’ It is in the Citizenship Amendment Act 2003 – which came into effect in 2004 – that the term “illegal migrant” entered the law, signifying someone who has entered India without legal authorisation or stayed on without it. It was a dog-whistle reference to Bangladeshis in Assam and the northeast more generally. 

Technically, refugees are compelled to flee their country and seek refuge in another land, due to political or religious or other kinds of persecution, and this movement is involuntary. Migrants, on the other hand, are understood to move voluntarily, more often than not for economic reasons. Such movement is also presumed to be legal because migrants typically have visas or (depending on which part of the world we are speaking about) guest worker permits. At the time of the Partition, these two categories acquired religious and normative overtones, such that Hindus and Sikhs coming into India from their homes in what had now become Pakistan were referred to as refugees, deserving of succour. On the other hand, Muslims who left their homes in India for the newly created state of Pakistan, but chose to return to India to reclaim their lives and livelihoods after the violence had abated, were termed migrants, deemed to be undeserving of the same consideration because they had after all chosen to go to Pakistan in the first instance. 

This offers an interesting contrast with the contemporary Hindutva discourse which defines both countries in terms of religious identity, such that Pakistan is an Islamic nation while India is a Hindu nation rather than a secular multi-religious one. The construction of India as a nation in which its Hindu citizens are by definition privileged, was therefore not the dominant understanding of India in 1947-48, but has acquired currency in recent times with the politicisation of religion and religious identity in our polity.

The political usage of ‘illegal migrant’ in India has thus made explicit that encoded identity of migrant = Muslim, while refugee = Hindu. This usage is consistent with the long history of these terms in India. Note that refugees from Tibet or indeed Tamils from Sri Lanka are still referred to as refugees, fleeing persecution. The CAA, in a sense, imports this distinction into its use of religious categories. It implies that Muslims cannot, by definition, be refugees because they cannot be persecuted in the three Muslim-majority countries they come from. 

AN: The Citizenship Amendment Act, 2019 requires applicants to prove that they belong to one (or more) of the six enumerated communities (Buddhists, Christians, Hindus, Jains, Parsis, Sikhs) from one of the three neighbouring countries (Afghanistan, Bangladesh, Pakistan), but the rules for the Act are yet to be notified, and it is unclear how an applicant is supposed to prove this. However, is this the first time that the religion of applicants was explicitly referenced as a criteria for obtaining Indian citizenship? How can the administration determine religion in such cases? Also, how did the local administration determine the religion of migrants to be registered?

NGJ: The Ministry of Home Affairs has reportedly sought more time to frame the rules. The text of the Amendment Act certainly does not mention any requirement for proving religious affiliation, nor does it require the experience of persecution to be proved. In fact, one of the objections of the Intelligence Bureau (as recorded in the report of the Joint Parliamentary Committee on the CAB) was precisely this: that these provisions could be misused by “infiltrators” from neighbouring countries, presumably because they could claim to belong to one or other of these religions in order to gain entry for purposes such as espionage. It is baffling how functionaries in the local administration could determine anybody’s religious identity.

While this is the first time that religion has been explicitly mentioned as a criterion for determining citizenship, religion did find mention in the 2004 Rules of the Citizenship Act, which delegated limited duration powers to the District Collectors of border districts in Rajasthan and Gujarat to register people most of whom had come in from Pakistan after 1992, on Pakistani passports and valid visas that they had outstayed. The Rules invoke religion explicitly, as they refer to these people not as migrants, much less as ‘illegal migrants,’ but as ‘minority Hindus with Pakistan citizenship who have migrated to India….with the intention of permanently settling down in India…’ 

AN: One of the disproportionate effects of our current citizenship law is that children born after 2004 are particularly at risk of having their citizenship questioned in any verification exercise. This is because, per the Citizenship Act, any person born in India after 2004 is an Indian citizen by birth only if one parent is an Indian citizen AND the other parent is not an ‘illegal immigrant’. One example of how this has played out in practice is the NRC exercise in Assam: a child, who has a parent who’s either been declared a ‘doubtful voter’ or whose case is pending before a Foreigners Tribunal, will be excluded from the NRC on the basis of the Act. Is this creating a problem of inherited statelessness?

NGJ: Indeed it is. This is affecting people whose parent(s) may have come in 40 years ago, even likely have voted in elections. These individuals born after 2004 (who would today be 16 years of age or less) have known no other home but this. It is decidedly unjust to render them stateless and amounts to punishing them for something they had no control over – the place of their birth. The predicament of infants and children in the Assam NRC is deeply worrying.

AN: How have our citizenship laws historically grappled with (if they have at all) the statuses of women, Dalits, Adivasis, and other socially vulnerable groups?  Documentation is very  central to citizenship determination. But, as has been repeatedly pointed out, there’s a mismatch between the expectations of a formal legal regime and the sociological reality of Indians—particularly the poor, illiterate, and marginalised, who simply do not possess and cannot access any documents. And it isn’t just a question of the number and types of official documents—but the veracity of official documents themselves is constantly questioned, constantly challenged. Why is there such a pervasive suspicion of documents? Is this particularly acute in border states? Have government policies or judicial bodies taken note of this sociological reality in the context of citizenship?

NGJ: Let me phrase my response in terms of, first, a distinction between formal and substantive citizenship. The poor, minorities, Dalits, Adivasis and women belonging to all these groups enjoy the formal status of citizenship – but, for these groups, substantive citizenship, the ability to meaningfully exercise rights, is far from realized. 

Given the marginalisation and vulnerability of these groups, given the convergence between poverty and the absence of documents, and given the histories of prejudice in our society, these groups, more than others, will – through the instruments of the NRC/NPR – be pulled backwards, perhaps even deprived of the formal legal status of citizenship. For them, this would be a move from the substantively second-class citizenship they hold to formal legal second-class citizenship or worse; from an enfranchised status to potential disenfranchisement. This, if nothing else, should disturb our conscience.

Secondly, you are quite right about documents. It is a fact that the poor and disadvantaged are also historically the most poorly documented. The veracity of such documents as they possess is frequently called into question – in one case, the Bombay High Court deemed somebody’s passport as having been acquired by fraudulent means. As we saw very recently, poor people in Assam suffer the ravages of floods almost every year, and papers are regularly lost in such natural calamities. The state’s obsession with the requirement of paper as proof is one side of the coin; its habitual distrust of the authenticity of the document offered is the other.  

AN: Discussions around citizenship have primarily circled around the state’s perspective, and the state’s sovereign prerogative, in granting citizenship—which has meant debating laws, rules, and whether these laws and rules are fair or not. What does Indian citizenship mean to the various communities who are in line to receive it? What are their hopes and expectations from being conferred Indian citizenship? 

NGJ: My interviews in Rajasthan with communities – mostly Dalit and Adivasi – who had migrated from Pakistan suggests that to them Indian citizenship means just the basic paperwork to be able to get employment, send their children to school and college, access the public distribution system, get a patta for land, get an electricity connection and so forth. It had little or nothing to do with any sense of affective belonging, much less any feeling of religious identity. Those who could have got it in the citizenship camps organised by the administration often could not afford it. Even after the CAA, we will not know till the Rules are framed as to whether this fast-track citizenship will come with a hefty price tag or not.

AN: You have written that even as the years between the Partition and the present increase, we seem to be reopening, and not reconciling, the wounds and ‘divisive legacy’ of that epochal event. How do you think this affects our relationship with our neighbours? Can an ‘internal matter’ dealing with foreigners and citizens be resolved without international cooperation? 

NGJ: The CAA has already made manifest the unhappiness of our neighbours. The threat of deporting ‘illegal migrants’ to Bangladesh, led to a statement from the High Commissioner of Bangladesh in India to the effect that people from his country would prefer to swim to Italy in search of employment than to cross over to India. In fact, there is speculation that, given the impressive economic indicators of Bangladesh today, there may be less migration from Bangladesh to India now than in the reverse direction. Already, with 1.1 million illegal Indian immigrants, Bangladesh is the fifth largest sender of remittances to India. The High Commissioner of India in Bangladesh has reportedly not been given an appointment with Sheikh Hasina for four months. These incidents suggest some deterioration in a hitherto robust bilateral relationship. Afghanistan too was hurt by the insinuation that Hindus and Sikhs are persecuted in their country. In fact, some instances of persecution after the passage of the CAA have come to light. It is well known that Pakistan’s treatment of its minorities is far from good, and that untouchability is also practised against its Dalit citizens, but present day India is scarcely in a position to lecture others on the question of how minorities should be treated.

Arunima Nair is a Core Team Member at Parichay. She is a second-year LLB student at Jindal Global Law School.