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. 

“Utterly Failed To Prove Linkage”: The Discriminatory Barriers To Women’s Citizenship Claims in Assam 

Gayatri Gupta is a law graduate from NALSAR University of Law, Hyderabad, India and is currently working at the Supreme Court of India. She has a keen interest in human rights law and refugee and citizenship law. She worked at Parichay Legal Aid Clinic from January 2020 to March 2022. She may be reached at guptagayatri14@gmail.com.


Introduction

Nivedita Menon has argued that the foundation of citizenship “is primarily based on proof of birth in a heterosexual patriarchal family, an institution that structurally undergirds caste, class, and gender injustice” [emphases mine]. It is this unquestioning acceptance of the heterosexual patriarchal family—based on marriage and the sexual division of labour—that has helped produce and maintain a particular notion of the nation-state and citizen. Menon identifies the familial foundation of citizenship to be the reason why citizenship is exclusionary towards women and is thus an inherently feminist issue. In this article, I examine the legality of the sui generis citizenship determination regime in Assam against the standard of gender equality and anti-discrimination law.[1] Through a qualitative study of Gauhati High Court (‘Gauhati HC’) cases relating to the Foreigners’ Act, 1946,[2]I critically analyse the impact of the seemingly ‘neutral’ rule of demanding documentary evidence to prove citizenship on women proceedees.[3] I conclude that the Foreigners Tribunals (‘FTs’) in Assam operationalise these evidentiary rules to have a discriminatory effect on women litigants.

Understanding indirect discrimination

Articles 14, 15 and 16 of the Indian Constitution form the equality code. The scope of this code is not limited to the formal conception of equality but embodies a substantive notion, whereby existing individual, institutional, and systemic barriers are taken into account to ensure equal protection of the law.Anti-discrimination law, specifically the concept of indirect discrimination, is closely linked to the concept of substative equality [see Nitisha v. UOI, Anuj Garg v. Hotel Association of India, Jeeja Ghosh v. UOI, Vikash Kumar v. UPSC]. Indirect discrimination occurs when a seemingly ‘neutral’ provision, criterion, or practice puts persons belonging to a specific group (having one or more protected characteristics[4]) at a particular disadvantage by not considering the underlying effects of the provision on that group.

Many Supreme Court decisions have affirmed the existence of indirect discrimination. Justice Chandrachud in Navtej Singh Johar, while assessing the constitutionality of Section 377 of the Indian Penal Code,  observed that what is relevant is the “effect” the impugned provision “has on affected individuals and on their fundamental rights”. Thus, state action which is facially neutral but has a disproportionate impact upon a particular protected class of persons is prohibited by indirect discrimination. Most recently, in  Lt. Colonel Nitisha v. Union of India, indirect discrimination under Articles 14 and 15 was expressly recognized, and the Supreme Court adopted the two-pronged test laid down in Fraser v. Canada for an indirect discrimination enquiry. The first step is to assess whether the impugned rule disproportionately affects a particular group; the second step is to see if this rule has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

Having explained the contours of indirect discrimination law in India, the next section will analyse how apparently neutral procedures, such as those currently employed in Assam’s citizenship determination regime, disproportionately impact women proceedees, and end up excluding them from public participation.

Operation of Foreigners’ Tribunals in Assam

A separate legal regime focused upon ‘kaagaz’ (papers)has been created in Assam to identify ‘foreigners’ and ‘illegal immigrants’. Under the Assamese citizenship determination regime, inserted via Section 6A of The Citizenship Act, 1955 in the aftermath of the Assam Accord, persons of Indian origin who came from Bangladesh before January 1, 1966 and have been ordinarily resident in Assam since then are considered as Indian citizens. Those who came between January 1, 1966 to March 25, 1971 would have to register themselves with the Central Government, and their names would be cut off from electoral rolls for a period of ten years. At the expiry of ten years from their date of registration, they would be considered Indian citizens.

The Foreigners’ (Tribunals) Order, 1964 is a subordinate legislation under the Foreigners’ Act, through which FTs are set up by the Central Government to determine the legal question of whether a person is a foreigner. In 2005, FTs became extremely critical after the Supreme Court struck down the Illegal Migrants (Determination by Tribunals) Act, 1983, and transferred all pending IMDT citizenship cases to FTs. Subject to the limited procedural requirements mentioned in the 1964 FT order, FTs are empowered to regulate their own procedures, raising concerns about due process and rule of law. With the publication of the final NRC list, a case can now come before an FT in three ways: cases referred by the Assam Border Police, ‘doubtful’ voter cases referred by an Election Registration Officer, and the appeals process in the NRC (which is yet to start).

It is important to note that under the Foreigners’ Act, the burden of proof is reversed and placed on the individual to prove that she is not a ‘foreigner’. Due to this reversed burden of proof, an individual is expected to discharge a higher standard of proof by supporting her citizenship claim with a wide variety of documentary evidence. The documents required in FT proceedings can be broadly understood in two categories of legacy and linkage: legacy documents showing the individual or her ancestor’s presence in Assam before March 25, 1971 (such as electoral rolls, land and tenancy records, the 1951 NRC); and linkage documents showing a link between the individual and her ancestors mentioned in the legacy document (such as birth certificates, school leaving certificates, gaonburah certificates).It is this seemingly ‘neutral’ requirement of producing documentary evidence to prove citizenship that is being challenged in this article.

Indirect Discrimination faced by Women in Assam

To test how the ‘neutral’ rule of demanding documentary evidence to prove lineage imposes an onerous burden on women, I analysed a total of 48 Gauhati HC cases from the year 2020. Out of the 48 cases analysed,[5] 30 cases (i.e. 62.5%) had female litigants. Within these 30, more than half (17 cases i.e. 56%) were argued on evidence,[6] and the remaining cases were challenges to ex-parte FT orders. I analysed the 17 cases which were argued on evidence, where the women litigants exhibited documents from as few as two to as many as fourteen.  Yet in all the cases except one, the documentary evidence exhibited was held to be ‘insufficient’ and the women were declared foreigners due to a failure in proving linkage. This means that although women litigants were able to exhibit documents showing the presence of their ancestors in Assam before March 25, 1971, they still failed in proving their lineage from these ancestors.

This difficulty in proving lineage is quite understandable considering the socio-economic status of female proceedees. Sexual division of labour and historical public-private divide has identified a  man’s role in the public world of politics and paid employment, and a woman’s role in caring and child-rearing at home.Thus, a man’s access to the public sphere is privileged, whereas barriers are placed on a woman’s entry to this public sphere. Consequently, women’s access to documentation used to prove linkage—such as voter lists with both their names and their parents’ names, birth certificates, school leaving certificates etc.—is abysmal.

Intersectional barriers to the access of documentary evidence

As per the National Family Health Survey-5, Assam is one of the twelve states showing a higher prevalence of child marriage than the national average. This indicates that a substantial number of Assamese women, especially in rural areas, get married and move to their matrimonial houses even before they can vote. This assumes significance because married women litigants struggle to produce any documents which link them to their father, and voter lists are one of the very few options available to litigants for this purpose. However, married women’s voter lists end up becoming worthless, since their names are reflected as ‘wife of’ (their husband) instead of ‘daughter of’ (their father) in the records.  In all the 17 cases I surveyed, the women litigants had been married for decades, with one of the cases specifically mentioning that the woman was married at puberty.

Despite these ground realities, judges still draw adverse inferences from female litigants’ inability to produce electoral rolls with both their and their parents’ names. For instance, Momila Khatun exhibited as many as 11 documents, including voter lists with her grandparents’ and parents’ names since the year 1966, and her own name in the 2017 voter list, written alongside her husband’s name. She specifically pleaded that“due to lack of knowledge and ignorance of the implications of the voting right she has not been able to enroll her name with the parents.”Yet, after twenty two years of her case referral, Momila Khatun was declared a foreigner as she was unable to show any connection with her parents through “cogent, reliable, and admissible” documents. Despite having no control over the documentation of her life and no agency on when and where her name was entered in the electoral rolls, she was heavily penalised for the same.

The discriminatory impact is exacerbated when we consider the status of women living in poverty belonging from marginalized and oppressed communities. According to the 2011 Census, 86% of Assam’s population lives in rural areas, with the female literacy rate in rural areas being 63%. Consequently, poor rural women are forced to drop out of school at a young age, resulting in the absence of their names on crucial documents such as school leaving certificates. Women’s access to such educational board certificates—which generally record the name of the student along with her parents’ names at the time of 10th/12th Standard—becomes very difficult. From the cases analysed, school certificates were exhibited in only 4 of the 17 cases, with women litigants having generally studied till primary school.[7] In only one case, Shahida Khatun was able to produce her 10th Standard HSLC admit card, showing a link between herself and her father. However, this was still held to be insufficient as the father could not depose to support her case.

For poor, rural, married Assamese women, faced with the impossibility of producing school certificates and voter lists, gaonburah certificates (issued by the village Panchayat Secretary to prove linkage between the daughter and her parents) are commonly presented to prove linkage. However, FTs often impose a higher evidentiary burden on women to produce these documents, and rarely accept them. From the cases surveyed, 12 female litigants exhibited gaonburah certificates and all of them were disregarded. FT members insist that for gaonburah certificates to be admissible (as held by the Supreme Court in Rupajan Begum v. Union of India), their contents must be proved by legal testimonies of the issuing authority i.e. the Panchayat Secretary herself. At this first stage itself, ensuring the presence of the issuing authority to depose becomes an uphill task,[8] as FTs rarely use their power to summon.[9] In the selected cases, even when the litigant was able to secure the gaonburah’s presence, their testimonies were held to be unreliable, with FTs citing non-production of contemporaneous records[10] or insufficiency of knowledge.[11] This shows how the deck is stacked against women in FT proceedings. The uncertainty around how an FT will consider a piece of evidence creates a ‘design of exclusion‘, heightening the precarious citizenship status of Assamese women.

Complete disregard of oral evidence

Lastly, even when one of the parents or a close relative comes forward to orally testify to prove the fact of linkage, their testimony is disregarded in the absence of any documentary evidence about the relationship. I identified 8 such cases in which either a father, mother, brother, or step sister deposed towards the existence of a relationship.[12] Dhiljan Nessa was able to show the presence of her father, Kitab Ali, through electoral rolls of 1966 and 1971. To prove linkage, she submitted a gaonburah certificate and her father even deposed as one of the witnesses, but his testimony was rejected. In 7 of the 8 cases, the Court held that oral testimony sans documentary support was not sufficient to prove linkage. Such a disregard of oral evidence of family members, who directly possess knowledge as to the existence of a parental relationship, goes against Indian Evidence Law. Section 50 of the Indian Evidence Act clearly states that oral evidence and conduct of someone who has “special means of knowledge” for proving the existence of a relationship between two persons is relevant and admissible. Thus, when the oral evidence tested on cross-examination is found to be credible and trustworthy, the tribunal should not insist on documentary evidence to corroborate each and every fact spoken. These basic evidentiary rules are being violated by FTs’ uninformed insistence on documentation.

In a series of identical cases challenging the FT orders, the Gauhati HC disregarded the oral testimonies of close relatives which were brought in to prove linkage in the absence of supporting documentary evidence.[13] However, another two-judge bench of the Gauhati HC insisted that all facts cannot be proved by documentary evidence alone, and that it was essential for FTs to appreciate oral evidence as well. This ratio remained lost in the chaos of FT proceedings until 2021; the bench led by Justice Kotiswar Singh in Haidar Ali v. Union of India held that it is unreasonable to expect people in adverse socio-economic conditions, especially in rural Assam, to have documents like registered birth certificates and in such cases, oral evidence may be led to prove relevant facts for citizenship claims. The bench unequivocally stated that “it is nowhere mandated that he [the litigant] must prove all these facts by documentary evidence only.” [emphases mine] The insistence on considering oral evidence has been reiterated in Md. Sujab Ali v. Union of India and Puspa Khatun v. Union of India.

The Haidar Ali judgment has not been challenged by the State; however, since these contradictory judgments on oral evidence are given by coordinate benches (benches of the same strength), the State can still cherry-pick an older judgment pre-Haidar Ali to argue against litigants. Until the matter is resolved by a full bench (of three Justices) of the Gauhati HC, FTs can continue to devise their own procedures and insist upon documentary evidence, operating in complete darkness from public scrutiny. Thus, documentary evidence has become an elusive piece of the citizenship puzzle, especially for women litigants in Assam.

Conclusion

The case laws reviewed show how the requirement of documentary evidence for proving lineage may appear to be neutral, but when considered in light of historical disadvantages and disenfranchisement faced by women, it places an undue burden upon them. Women are denied the exercise of their right to access justice because of a failure to take into account the pre-existing gender-based disadvantages that they face. When laws do not account for gendered social norms in participation in the public arena, documentation practises, literacy levels, and access to necessary legal processes, the effect of so-called neutral citizenship determination procedures is exclusionary.

The author would like to thank the Editorial Board at Parichay Blog, Arunima Nair, Arushi Gupta, Darshana Mitra, and Rupali Samuel for their suggestions and comments.


[1] Also see Ditilekha Sharma, Determination of Citizenship through Lineage in the Assam NRC is inherently exclusionary, Economic & Political Weekly (Vol 54, Issue 14), April, 2019; Amnesty International, Designed to Exclude: How India’s courts are allowing foreigners tribunals to render people stateless in Asssam (2019); Trisha Sabhapandit & Padmini Baruah, ‘Untrustworthy and unbelievable’: Women and the Quest for citizenship in Assam, Statelessness and Citizenship Review (2021); Saika Sabir, Gender Discrimination in the Indian Citizenship Regime, presented at https://law.unimelb.edu.au/news/alc/video-recordings-research-roundtable-on-citizenship-and-statelessness-in-india

[2] For the case study methodology, the author used the search word “Foreigners Act, 1946” on the SCC database, and narrowed down the results by the court (Gauhati High Court), and the time period (2020). The entire list of 49 cases accessed from SCC can be found here: https://drive.google.com/file/d/1fcSyrRMLNJuigOCjKCedUqiq-vVZS2I6/view?usp=sharing.

[3] ‘Proceedee’ is a word used commonly in the Foreigners Tribunal proceedings to refer to  the individual who is alleged to be a ‘foreigner’.  Another term that is commonly used is ‘Opposite Party’.

[4] ‘Protected characteristic’ is a term in equality law that refers to the personal characteristics, defined in the applicable law (such as race, caste, gender, age etc.), that are legally protected from discrimination.

[5] Serial no. 33 [XXX v. Union of India] has been excluded from the count since it was a suo moto writ petition dealing with decongestion of prisons and detention centres during the pandemic, and did not have any identifiable writ petitioner.

[6]  The list of 17 cases are as follows: Jarful Khatun v. Union of India, Raina Begum v. Union of India, Dhiljan nessa v. Union of India, Jayeda Begum v. Union of India, Shahida Khatun v. Union of India, Momila Khatun v. Union of India, Tapuran Bibi v. Union of India, Abia Khatun v. Union of India, Jamala Begum v. Union of India, Farida Khatun v. Union of India, Anur Bibi v. Union of India, Jahanara Begum v. Union of India, Surabala Namasudra v. Union of India, Shipa Begum v. Union of India, Amina Khatun v. Union of India, Golap Banu v. Union of India and Mohila Begum v. Union of India. Available at: https://drive.google.com/file/d/1fcSyrRMLNJuigOCjKCedUqiq-vVZS2I6/view?usp=sharing.

[7] Raina Begum v. Union of India, 2020 SCC Online Gau 4873[Class II]; Fardia Khatun v. Union of India, 2020 5 SCC Online Gau 4735 [“Class I”]; Shahida Khatun v. Union of India, 2020 SCC Online Gau 3097; Shipa Begum v. Union of India, 2020 SCC OnLine Gau 482 .

[8] Jarful Khatun v. Union of India, 2020 SCC Online Gau 3835; Tapuran Bibi v Union of India, 2020 SCC Online Gau 2977; Abia Khatun v. Union of India, 2020 SCC Online Gau 2774; Anur Bibi  v. Union of India, 2020 SCC Online Gau 1269; Surabala Namasudra v. Union of India, 2020 SCC Online Gau 473.

[9] Para 4, The Foreigners (Tribunals) Order, 1964. See Jarful Khatun v. Union of India, 2020 SCC Online Gau 3835 wherein the FT rejected the proceedee’s application to summon the Gaonburah.

[10] Dhiljan Nessa v. Union of India, 2020 SCC Online Gau 3668 [“Gaonburah issued the certificate on verbal request though he never maintained official memo number/reference to issue such type of certificate”];

[11] Golap Banu v. Union of India, 2020 SCC Online Gau 202 [“He (Gaonburah) issued the Certificate only on the basis of personal knowledge and not from any records. DW-2 stated that he has known the petitioner when she was about 10 years old”]; Jahanara Begum v. Union of India, 2020 SCC Online Gau 1393 [“Gaonburah admitted to the fact that he does not know the father of the petitioner and further that the petitioner is known to him only since 1996, which is much after the cut-off date of 25.03.1971”]; Amina Khatun v. Union of India, 2020 SCC Online Gau 4191.

[12] Jarful Khatun v. Union of India [brother], Raina Begum v. Union of India [mother], Dhiljan Nessa v. Union of India [Father], Tapuran Bibi v. Union of India [Brother], Jamala Begum v. Union of India [Brother], Farida Khatun v. Union of India [Brother], Jahanara Begum v. Union of India [Brother], Anur Bibi v. Union of India [Step sister].

[13] Rahima Khatun v. Union of India, 2021 SCC Online Gau `106, ¶6; Jarful Khatun v. Union of India, 2020 SCC OnLine Gau 3835, ¶6; Tapuran Bibi v. Union of India, 2020 SCC OnLine Gau 2977, ¶6; Anur Bibi v. Union of India 2020 SCC OnLine Gau 1269; Jahanara Bibi v. Union of India, 2020 SCC OnLine Gau 1269, ¶6. Two-judge benches led by J. Manojit Bhuyyan.

State v. Bikram Singha, FT Case no. 129/2017

Read the order here

Date of the decision: 10.09.21

Court: Foreigners’ Tribunal-II, Karimganj, Assam

Presiding Tribunal Member: Mr. Sishir Dey 

Summary: In a decision on the determination of the citizenship of a person, the Foreigners’ Tribunal recognised the statutory right of citizenship by birth for persons born in India prior to 1.07.1987  under Section 3(1)(a) of the Citizenship Act, 1955. Further, the Tribunal ruled that it could rely on a common Application Receipt Number (ARN) and joint inclusion in the Final National Register of Citizens (NRC), published on 31.08.2019, for the purpose of establishing linkage between the Opposite Party (OP) and their parents, as the NRC is ‘final’ and thus can be used as evidence to corroborate citizenship claims. 

Facts: The Election Officer marked the status of Bikram Singha (“Opposite Party”) as a ‘doubtful’ voter. This was done after the Election Officer suspected the citizenship of the Opposite Party (OP) whose name was in the electoral roll of 1997. Electoral officers are authorized to flag people listed on voter rolls, supposedly without adequate Indian documentation, as “doubtful” voters. This process started on 10th December 1997, when the Election Commission under the advice of the Asom Gana Parishad (AGP) government marked 3,70,000 voters as “doubtful”. A doubtful voter cannot vote because their Indian citizenship is under suspicion. As a result, D-voters are disenfranchised by the government on account of their alleged lack of proper citizenship credentials. 

The Election Officer alleged that the OP had not produced any documents to the Local Verification Officer, and referred the case to the Superintendent of Police. Subsequently, the case was referred to the Foreigners’ Tribunal, which adjudicated upon whether the OP was a foreigner or not. To prove his citizenship, the OP produced as many as twelve documents and two witnesses. It was his case that he was born on 06.01.1978 at Jamirala village. In effect, he argued that he was a citizen by birth under Section 3(1)(a) as he was born in India before 01.07.1987. In addition, he contended that his ancestors and family members had been permanent residents of Jamirala, and his father’s name was enlisted in the Voters List of 1970. His father even served the Indian Air Force for 29 years.

In response, the State contended that Section 3 was not applicable, as only Section 6A applied in Assam. In other words, since the OP had not submitted a document prior to 01.01.1966, his parents may have been ‘foreigners’ who migrated to India between 01.01.1966 and 24.03.1971. Further, the OP had relied on his name being included in the NRC to corroborate his claim of linkage with his parents who were born and ordinarily resident in Assam prior to 25.03.1971. The State expressed doubt about the same, specifically “about the finality of Assam NRC published online on 31 August 2019…Submitted that Exhibit – 6 may not be considered as a legally valid document” (paragraph 10). The OP responded that the finality or the legality of the NRC could not be doubted, as it had been published as per the direction and monitoring of the Supreme Court of India. 

Holding: The Foreigners’ Tribunal (FT) (correctly) affirmed the OP’s citizenship under Section 3, noting that Section 6A deals with “persons coming to Assam from ‘Specified Territory’. Their children are not covered by the provisions of section 6A but are covered within the ambit of Section 3 of the Citizenship Act 1955. Thus Section 3 of the Citizenship Act is applicable in Assam as rest of India unless and until it’s repealed, amended or struck down, but nothing of these has happened yet” (paragraph 14). Thus, it may be presumed that the OP was born in India prior to 01-07-1987. Therefore OP is a citizen of India by birth in terms of Section 3(1)(a)

The FT noted that the OP proved his linkage with the persons he claimed to be his parents. To prove his father’s citizenship, the OP submitted his father’s Discharge Certificate Book from the Indian Air Force (Exhibit 3) that showed that the OP’s father had served the Indian Air Force for 29 years. This discharge book also contained the name of the OP, his grandfather, his mother and his siblings along with their relation to the OP’s father. The FT took note of the Discharge Certificate Book and the Pension Payment Order (Exhibit 4) in the name of the OP’s father and held that these two documents prove that the OP’s father served in the IAF. If further held that the Indian Air Force must have verified the citizenship and antecedents of the OP’s father before inducting him (paragraph 12).  The OP also submitted digital evidence of proof that he along with his parents jointly applied under the same Application Receipt Number (ARN) for inclusion in the NRC, and after several rounds of scrutiny, they had all been included in the Final NRC published on 31.08.2019. Although the name of the OP was in the final NRC, the FT noted that it could only be taken to be proof of his linkage with his parents, but not his citizenship. This is because the Standard Operating Procedures state that a D-voter is not eligible to be included in the NRC unless the FT rules that the voter is an Indian citizen. But, the name of the OP was included in the final draft of the NRC despite being identified as a ‘D’ voter and without a clearance from an FT. The FT responded to this anomaly by observing that the “NRC authority might not have been able to trace the case filed against the OP and his inclusion may be validated only by an FT order in his favor” (paragraph 12).

Lastly, the FT addressed the legal validity and finality of the Assam NRC. It was observed that the Final NRC published on 31.08.2019 was prepared as per the Citizenship Act, 1955 and the Citizenship Rules, 2003. Further, it was prepared under the order, directions and supervision of the Supreme Court. Hence, the FT ruled that “there is no doubt that this NRC Assam published in 2019 is nothing but Final NRC” (paragraph 13). The FT also affirmed the NRC’s evidentiary value by observing that the names of the parents of the OP, as persons in the list “may be taken as the conclusive proof of their Indian Citizenship” (paragraph 12). In other words, the FT ruled that the NRC is a ‘final’ document that could be taken as conclusive proof of a person’s Indian citizenship unless a reference against them is pending before an FT. In cases where a person’s name appears in the NRC when a reference against them is pending before an FT, the decision of the FT on that person’s nationality will prevail over the NRC.

Significance: This order is significant because it correctly considers the final draft of the NRC as a ‘final’ document that can be relied upon to prove Indian citizenship. Since the publication of the NRC on 31.08.2019, there has been a lack of clarity on the status of the document. The NRC process has been in a logjam since the government has not yet issued the reverification slips to file appeals by those who have been excluded from the NRC. After the publication of the NRC, the BJP harped on the ‘incorrectness’ of the document. Before the 2021 Assembly elections in Assam, the Bharatiya Janata Party in its manifesto promised the ‘correction’ of the NRC. The incumbent Chief Minister of Assam, Himanta Biswa Sarma called the NRC an “incorrect document. This is because out of the 19 lakh people excluded from this final draft, 12 lakh persons were Hindus. In May 2021, the Coordinator of Assam NRC Hitesh Dev Sarma filed a petition before the Supreme Court for the re-verification of the final draft of the NRC. 

This, however, is not the correct legal position. It is clear that the NRC, published on 31.08.2019, is the final document. First, after the publication of the final NRC, the Registrar of Citizenship Registration along with the State Coordinator released an official press statement on 31.08.2019 declaring that the draft of the NRC published on 31.08.2019 was the final NRC. According to Rule 3 of the Citizenship Rules, 2003, the authority to “establish and maintain”  the National Register of Citizens, Assam lies exclusively with the Registrar General of India (RGI). Second, the Ministry of External Affairs released a press statement on 31.08.2019, officially declaring the publication of the final draft of the NRC. Following is an extract from the press release:

1. Yesterday, the office of the State Coordinator, NRC Assam released a press statement on the publication of final NRC as on 31st August 2019. 

2. Since then, there have been some commentaries in sections of a foreign media about aspects of the final NRC which are incorrect. 

8. Exclusion from the NRC has no implication on the rights of an individual resident in Assam. For those who are not in the final list will not be detained and will continue to enjoy all the rights as before till they have exhausted all the remedies available under the law. It does not make the excluded person “Stateless”. It also does not make him or her “a Foreigner”, within the legal meaning of the term. They will not be deprived of any rights or entitlements which they have enjoyed before.”

Third, a bare reading of the orders of the Supreme Court in Assam Public Works v. Union of India clearly evinces that the NRC is final. This makes it clear that the NRC is the ‘final’ document. 

In Sufia Khatun v. Union of India, the Gauhati High Court addressed a contention that may seem to have raised doubts about the finality of the NRC. The Court noted that: “It was urged by the learned counsel for the petitioner that the names of the siblings and children of the petitioner have appeared in the Final NRC. In this regard, we are informed that the Final NRC has not yet been accepted and/or notified by the competent authority i.e. the Registrar General of Citizenship Register” (paragraph 14). In this paragraph, however, the Court merely discussed the contention of the state in response to the reliance of the petitioner on the NRC. It did not render its own judgment on the finality of the NRC. Thus, this decision cannot be relied upon to substantiate the argument that the NRC is not final. 

Although the FT order is well-reasoned, it is arguable whether the FT has the power to rule on those questions of law that are not sought to be answered before it. Order 2 read with Order 3(15) of the Foreigners’ Tribunal Order, 1946 states that the final order of the FT must be a concise statement of its opinion on the citizenship of the party before it. Further, in several judgments such as Golapi Begum v. UOI, the Gauhati High Court held that in their final orders, the FTs are supposed to answer only those questions that have been referred to it and not assume jurisdiction to answer other questions. A reading of the order in Bikram Singha suggests that the Karimganj FT was indeed supposed to answer the question of the finality of the NRC in order to fully appreciate the documentary evidence produced by the OP. One of the documents that the OP used to substantiate his claims was the NRC list and this was opposed by the state advocate. The state advocate argued that the NRC could not be considered as evidence as it was neither a final nor a legally valid document. Hence, the FT commented upon the finality of the NRC while considering the NRC as a piece of evidence that proved the relation between the OP and his parents.

In Bikram Singha’s case the Karimganj FT was also faced with the question of the legal admissibility of the NRC. The state advocate argued that the NRC list could not be considered a legally valid document (paragraph 10). This contention is not valid. It does not have a legal basis. In Sanowara Khatun v. UOI, the Gauhati High Court held that because the NRC was not a result of a quasi-judicial process, the OP could not contend that the names of her close family members in the NRC constitute material evidence in deciding her review application (paragraph 9). Thus, the High Court did not consider the final draft of the NRC as material evidence while deciding Sanowara’s review application. At the same time, the Court did not hold that the FTs could not take into account the NRC as material evidence when adjudicating upon citizenship. Hence, this decision cannot be relied upon to conclude that the FTs cannot consider the final NRC as material evidence. Another contention against the reliance on the NRC as evidence was raised by the state advocate in the cases of Sufia Khatun v. UOI and Golokjan Bibi v. UOI. It was contended that the NRC cannot be used as evidence as it has not been notified yet in the official gazette. This is incorrect. In accordance with Section 74 of the Indian Evidence Act, the NRC is a public document and thus the lack of notification in the official gazette does not affect its evidentiary value. 

Apart from the discussion on the finality and the legal admissibility of the NRC, the FT determined another legal issue. It correctly held that Section 3(1)(a) of the Citizenship Act, 1955 applies with equal force to determine the citizenship of the residents of Assam. This has been expressly stated in Section 6A(7), which clarifies that Section 6A does not apply to a person who acquired their citizenship before the commencement of the Citizenship (Amendment) Act, 1985. This means that if a person were born in India or in the state of Assam before 1.07.1987, then such a person would be a citizen by birth. Thus, such a person need not prove their linkage to their parents or grandparents. That the government is not acquainted with this legal position is alarming. 

Table of Authorities:

  1. Sona Khan v. Union Of India, WP(C)/1293/2021.
  2. Golapi Begum vs The Union Of India, WP(C)/2434/2020.
  3. Sanowara Khatun v. The Union Of India, Review. Pet. 16/2020.
  4. Sufia Khatun v. Union of India, Review.Pet. 22/2020.
  5. Orders of the Supreme Court in Assam Public Works v. Union of India, WP(C)/274/2009.

Resources:

  1. Nazimuddin Siddique, ‘Discourse of Doubt’ , Vol. 54, Issue No. 10, Economic and Political Weekly (09 March 2019 ) https://www.epw.in/journal/2019/10/perspectives/discourse-doubt.html?0=ip_login_no_cache%3Da85d78f59750a17dd6c889f84f820582 accessed on 28 September 2021.
  2. M. Mohsin Alam Bhat, ‘Twilight citizenship’, https://www.india-seminar.com/2020/729/729_m_mohsin_alam_bhat.htm accessed on 28 September 2021.
  3. Ipsita Chakravarty, ‘Doubtful or dubious: Who will count the D voters of Assam?’, Scroll (21 February 2016) https://scroll.in/article/803173/foreigners-vs-citizens-who-will-count-the-d-voters-of-assam accessed on 28 September 2021.
  4. Shuchi Purohit, ‘Foreigners Tribunals,’ Parichay- The Blog (10 July 2021) https://parichayblog.org/2021/07/10/foreigners-tribunal/ accessed on 28 September 2021.
  5. Office of the State Coordinator of National Registration (NRC), Assam, Government of Assam http://nrcassam.nic.in/index-M.html.
  6. Sangeeta Barooah Pisharoty, ‘Citizenship and Assam: An Explainer on the Legal Questions That Still Loom Large’, The Wire (25 November 2019) https://thewire.in/rights/citizenship-and-assam-the-legal-questions-that-still-loom-large accessed on 28 September 2021.
  7. Farah Naqvi, ‘The Citizenship Amendment Bill and NRC Will Together Destroy Our Country’, The Wire (12 December 2019) https://thewire.in/communalism/nrc-citizenship-amendment-bill-hindu-muslim accessed on 28 September 2021.
  8. ‘Assam excludes over 19 lakh names from NRC list, BJP unhappy over ‘erroneous’ count,’ The Indian Express (31 August 2019) https://indianexpress.com/article/india/assam-nrc-final-list-bjp-congress-bangladesh-illegal-migration-5954490/ accessed on 28 September 2021.
  9. Lok Sabha Unstarred Question No.1264, Lok Sabha https://www.mha.gov.in/MHA1/Par2017/pdfs/par2021-pdfs/LS-09022021/1264.pdf 
  10. Tora Agarwala, ‘BJP promises ‘corrected NRC’ in Assam manifesto, silent on CAA’, The Indian Express (24 March 2021) https://indianexpress.com/elections/assam-assembly-elections-bjp-manifesto-7240987/ accessed on 28 September 2021.
  11. ‘Assam NRC authority seeks re-verification of citizens’ list, The Hindu (13 May 2021) https://www.thehindu.com/news/national/other-states/assam-nrc-authority-seeks-re-verification-of-citizens-list/article34548812.ece accessed on 28 September 2021.

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Jagriti Pandey.

Jasmin Begum @Jesminara Begum v. Union of India, SLP Civil No. 1564/2020

Read the judgement here

Date of decision: 25.09.2019

Court: Gauhati High Court

Judges: Justice Manojit Bhuyan and Justice Ajit Borthakur

Summary: The Gauhati High Court upheld the order of a Foreigners Tribunal that declared the Petitioner as a foreigner. The High Court considered the evidence placed on record by the Petitioner to be insufficient for proving her citizenship, stating that there were no errors apparent on the face of record that warranted interference with the Foreigners Tribunal order.

Facts: The Foreigners’ Tribunal, in its order dated 25.01.2019, declared the Petitioner to be a foreigner, having illegally entered into India (Assam) after 25.03.1971. In accordance with Section 9 of the Foreigners Act, 1946, the Petitioner presented 11 documents as evidence before the Foreigners’ Tribunal to prove that she was not a foreigner. Section 9 of the Foreigners Act places the burden of proof upon the person to prove that they are not a foreigner. Apart from the documents, the Petitioner also presented two witnesses: Mustafa Saiful Islam, the projected uncle of the Petitioner and Abdul Latif, the projected husband of the Petitioner.  

First, the High Court found the documentary evidence to be insufficient to prove the Petitioner’s linkage to her projected parents. Although the names of the alleged parents appeared in the voter lists of 1965, 1970, 1997 and 2018 from different villages, no voter lists were produced that reflected the name of the Petitioner to show the relationship with her projected parents. The mother’s name in the voter’s lists had discrepancies, which is the reason that the court disbelieved the Petitioner’s claim that the projected mother was her mother. Further, the voter’s lists only had the names of the projected parents, and not of the Petitioner herself. Thus, the lists were considered to be inadequate to establish the Petitioner’s linkage to her parents.

Second, the HC did not accept the Jamabandi certificate on the ground that the same did not stand to be proved by the means of any related sale deed showing that the plot of land in question, which the Petitioner claimed to have inherited, had been purchased by her projected father on any date prior to the cut-off date of 25.03.1971. So, the Jamabandi document was considered to be not relevant to establish lineage to a predecessor prior to 25.03.1971. The handwritten Jamabandi was also not held to be relevant as it could not relate to the projected father or mother of the Petitioner.

Third, the HC also held that certain documents were inadmissible, namely certificates issued by the school and the village government, because the authors of the said certificates had not been examined to prove the contents thereof. 

Fourth, it held that the oral evidence of the two witnesses could not be considered as admissible evidence since, “in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship” (page 5). The HC dismissed the oral testimony as it could not be a proof of citizenship without the support of documentary evidence. Thus, the HC upheld the Tribunal’s order, finding that the Petitioner had failed to discharge her burden of proof under Section 9. 

The HC also did not review the Tribunal’s finding of facts since “the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal” (page 5). In other words, it held that while issuing a writ of certiorari, courts do not review findings of facts, even if they are erroneous. 

Holding: As per the HC, there was no error apparent on the face of record to warrant interference with the FT order. According to the Court, “No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all” (page 5).

The Petitioner filed a Special Leave Petition (SLP) before the Supreme Court, challenging the order passed by the Gauhati High Court. The SC allowed the Petitioner to withdraw the SLP and file a review petition before the Gauhati High Court. It also permitted her to approach the Supreme Court, again, in case the review petition fails. 

Significance: The rejection of the oral and documentary evidence by the Gauhati HC was improper. The court failed to consider that the Petitioner had presented admissible and sufficient evidence to prove her linkage to one of her parents.   

First, the Gauhati HC failed to appreciate some of the evidence on record. The Petitioner had presented documents to establish linkage with both her parents. As per the Court, the evidence had failed to establish the Petitioner’s linkage to her mother. However, the Court overlooked the fact that some of the evidence was adequate to establish a linkage to her father. Since her father’s name was present in the voter’s lists of 1965, 1970, the Petitioner was the descendant of a person living in Assam prior to 1971. Thus, establishing linkage to her father should have been sufficient to prove her citizenship under Section 3(b) of the Citizenship Act, 1955. While the Petitioner could not establish linkage with her mother since the latter’s name had discrepancies in the voter’s lists, there were no such discrepancies in her father’s name in the lists. The father’s name in the certified voter’s lists should have been considered as evidence to establish linkage.

Second, the HC was also incorrect in finding that the Petitioner’s husband’s oral testimony was inadmissible. The Petitioner’s husband orally testified to establish the linkage between the Petitioner and her father. As per Section 50 read with Section 59 of the Indian Evidence Act, oral evidence of a person who has special means of knowledge is admissible to prove the existence of a relationship between persons. In fact, courts have held that if the oral evidence is given by a person who has special means of knowledge about the relationship, such evidence is admissible. The husband, by virtue of his marriage to the Petitioner, satisfies this requirement and his testimony was therefore admissible. Thus, the oral testimony did not need to be supported by documentary evidence and was admissible ipso facto. Even then, the HC’s stance that it was not supported by documentary evidence was wrong since the oral testimony was also backed by the voter’s lists having the father’s name. 

Table of Authorities:

  1. Jasmin Begum @Jesminara Begum v. UOI, W.P. (C) 3084/2019

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Radhika Dharnia.

Foreigners’ Tribunals

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Shuchi Purohit, is part of the clinic’s outcomes.

Foreigners’ Tribunals are quasi-judicial bodies set up by the Central Government to determine whether a person is a foreigner or not under the Foreigners’ (Tribunals) Order, 1964, created under the Foreigners Act, 1946. The Executive appoints judicial members to adjudicate cases before FTs. These tribunals differ from other tribunals or courts of law in India in terms of procedure, selection criteria of judicial members, examination of evidence, absence of an appellate body, etc. Presently, as many as 1.4 lakh cases of suspected foreigners are pending before 300 tribunals functioning in Assam. 

History and Establishment of Foreigners’ Tribunals

The primary aim behind setting up foreigners’ tribunals was to avoid arbitrary deportation. The Foreigners Act was first enacted in 1864, to limit the mobility of groups that the colonial British government saw as “disorderly or alien.” The Foreigner’s Act, 1946, which was adopted by independent India, incorporated this objective as well, in a situation where borders were porous and in flux, especially along the eastern borders. However, the Foreigners Act did not incorporate any mechanism for the identification and detection of foreigners. 

The 1961 Census Report focused on preparing data on irregular immigrants. 2,20,691 ‘infiltrants’ were found in Assam due to migration from East Pakistan. The Border police thereafter misused this data as they started detecting and deporting foreigners without any judicial process. The Ministry of Home Affairs then, through powers granted under Section 3 of the Foreigners Act, passed the Foreigners (Tribunal) Order, 1964, so that no person would be deported without a hearing. 

In 1983, the Government of India passed the Illegal Migrant (Determination by the Tribunal) Act, 1983 (‘IMDT Act’). The objective of this Act was to determine foreigners who entered India after 25 March 1971, according to Section 6A of the Citizenship Amendment Act, 1986. Such individuals were ineligible to obtain Indian citizenship and were detected and deported in accordance with the IMDT Act. The IMDT Act differed significantly from the Foreigners Order in one respect: it placed the burden of proof for demonstrating that the individual is a foreigner upon the state. It also defined the eligibility criteria to be a judicial member of the tribunal. An option of the review was available in case a difference of opinion arose among the judicial members.

However, there was growing turmoil in Assam as the leaders of Assam Agitation believed that the IMDT Act was unsuccessful in detecting and expelling foreigners and the issue of irregular immigration remained unresolved. Hence, in 2005, in Sarbananda Sonowal v. Union of India, the Supreme Court declared the IMDT Act as unconstitutional, as it found the procedure laid down in the Act to be “time-consuming”. The Court cited two reasons for its decision. First, that the Act failed to protect the people of Assam from external aggression by the migrants, which is the prerogative of the central government. Second, that in order to uphold national security, there was a need for identification of these foreigners to expedite their deportation. The Court struck down the IMDT Act as unconstitutional, and reverted to the Tribunal regime established under the Foreigners Act and Order, thus shifting the burden of proof to the individual suspected to be a foreigner. 

How do Foreigners’ Tribunals receive Cases?

There are three modes through which the Foreigners’ Tribunals receive cases: references from the Border Police, the Election Commission of India, and the National Register of Citizens. There are presently 1.9 million people who are excluded from the final draft of the NRC, waiting for their fate to be decided, as the process for their claim to citizenship before FT is yet to be started. 

Almost every district in Assam has Assam Police Border personnel stationed, who identify and investigate alleged foreigners based on their discretion. Cases identified by the Border Police are referred to FTs for final adjudication. However, civil society organisations argue that this power is often abused by the Border Police as they do not follow any investigatory guidelines to identify alleged foreigners, as laid down by the Gauhati High Court

Individuals can also be identified as foreigners by the Election Commission. In 1997, the ECI had identified around 2,30,000 voters as ‘doubtful,’ whose cases were then referred to FTs for adjudication. 

Finally, the National Register of Citizens in Assam is an exercise identifying all Indian citizens in the state. Individuals excluded from the list are identified as foreigners, who will have to prove their citizenship before FTs. In 2019, the final NRC list was released, which excluded around 19 lakh people from citizenship. In May 2021, the NRC Coordinator had filed an application before the Supreme Court seeking re-verification of the NRC, stating that some ‘issues of substantive importance’ cropped up while preparing the rejecting slips, thus delaying the process.

Lapses of Foreigners’ Tribunals in India

India is a party to the International Covenant on Civil and Political Rights (ICCPR) and is hence bound by its treaty obligations. Article 14(1) of ICCPR states that every person is entitled to a “fair and public hearing by a competent, independent and impartial tribunal established by law.” The Foreigners Act falls short on each criterion set by ICCPR, as it fails to establish standardised criteria of eligibility for its members. 

Scholars and civil society organisations have raised concerns regarding the independence and impartiality of these tribunals. The appointed members of the Foreigners’ Tribunal do not have any specialized training in law or adjudication. This is evidenced by the Gauhati High Court’s circular seeking to appoint senior civil servants as members of the Foreigners’ Tribunal, as opposed to persons having prior adjudicatory or legal experience. Moreover, membership with the Tribunal is renewed or terminated depending on the conviction rate. Thus, members of the Foreigners’ Tribunal would be incentivised to declare more people as foreigners, to retain their seats. This leads to an inherent conflict of interest, which falls short of the requirement of impartiality.

The Act also fails to state the training a member needs to carry out the judicial duties, thus compromising the requirement of competency. In 2015, the training received by the 63 selected members spanned merely four days. Out of those, only two were former or serving judicial officers. Moreover, the Government of Assam has further lowered the threshold of experience required from 10 years to 7 years. The age limit of induction which was previously 45 years, is now 35.

The tribunals are empowered to regulate their own procedures, as provided by the 1964 Order. Civil society organisations have noted that in practice, this power is abused and the tribunals do not provide documents such as written statements, witness depositions, etc., which are necessary for an individual to fairly contest and appeal their case. More than 60% of cases are decided ex-parte, as most individuals do not receive show-cause notices. The Gauhati High Court had stated that since Foreigners’ Tribunals are not civil but rather quasi-judicial bodies, the principle of res judicata does not apply. However, the Supreme Court in Abdul Kuddus v. Union Of India, later overturned this ratio, finding instead that quasi-judicial orders rendered by Foreigners’ Tribunals have civil consequences. Therefore, the doctrine of res judicata would apply. Further, the orders passed by Foreigners’ Tribunals cannot easily be found in the public realm, making the entire process opaque.

The Foreigners Act and Order do not provide for a right to appeal against the decision of a Foreigners’ Tribunal and set up no appellate body. All appeals have to be made to the High Court and Supreme Court. There are various factors such as litigating costs, locations, the prolonged duration of appeals etc. which act as barriers to individuals approaching appellate courts for a review of their decision. Even if they wish to do so, this right has become judicially restricted through the decision of the State of Assam v. Moslem Mandal. The decision states that the tribunal is the final fact-finding body, post which facts cannot be challenged during the appeal. However, facts are the most important aspect of such cases. Lawyers practising in FTs note an alarming difference between the prescribed methods for fact-finding and how facts are actually obtained by the Border Police. The guidelines laid in Moslem Mandal propounded that the referring authority must forward their observations recording their satisfaction in such a manner that demonstrates their application of mind to the facts and circumstances of the case; however, the fact-collection procedure is largely ignored. 

Conclusion

The objective of the 1946 Act was to deport legitimate foreigners in the Indian territory, rather than to determine the citizenship status of the masses to declare them foreigners. The functioning of these tribunals fails to take into consideration the grave risks associated with statelessness. It forces targeted individuals to live in limbo with constant anxiety over their civil and political rights. 

Suggested readings

  1. Amnesty International India, ‘Designed To Exclude: How India’s Courts Are Allowing Foreigner Tribunals To Render People Stateless In Assam,’ (2019) <https://www.amnesty.be/IMG/pdf/rapport_inde.pdf>.
  2. Talha Abdul Rahman, ‘Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam’ VOL 2 NO 1 (2020): STATELESSNESS & CITIZENSHIP REVIEW <https://statelessnessandcitizenshipreview.com/index.php/journal/article/view/141>. 
  3. Sangeeta Barooah Pisharoty, ‘Explainer: What Do the MHA’s Changes to 1964 Foreigners Tribunals Order Mean?’ (The Wire, 14 June 2019) <https://thewire.in/government/foreigners-tribunals-order-mha-changes
  4. State of Assam v. Moslem Mandal and Ors. (2013) 3 Gau LR 402.
  5. Mohsin Alam Bhat, ‘Twilight Citizenship’ (2020) 729 Seminar <https://www.india-seminar.com/2020/729/729_m_mohsin_alam_bhat.htm>. 
  6. Citizens Against Hate, ‘Making Foreigner: Report on NRC Updation in Assam and the Risk of Mass Statelessness’ (2018) <https://citizensagainsthate.org/wp-content/uploads/2019/06/Making-Foreigner.pdf

Deportation and Detention

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Andolan Sarkar, is part of the clinic’s outcomes.

A foreigner as defined in Section 2(a) of the Foreigners Act of 1946 (‘the Act’) means a person who is not a citizen of India.[1] The ambit of this act extends to stipulating the deportation or detention of such foreigners. The definition of a foreigner within the Act, however, is vague since it negates the distinction between refugees, illegal migrants, and asylum seekers.

Deportation entails the expulsion of a foreigner from their current resident country to their country of origin or any other third country by any lawful authority on grounds authorised by law. While detention entails the lawful confinement of any individual, such confinement must be prescribed by any statute and sanctioned by the Court. The relevance of this discussion hinges on the several petitions challenging deportation orders and  thousands of individuals being detained in detention centres in dingy conditions for prolonged periods without a fair trial.

The authority of the Indian State to deport arises from Section 3 of the Act which allows the State to make orders restricting the stay of “foreigners” within Indian territory. Threat to national security, illegal entry into the country, commission of crimes by foreigners, residence within the country after the expiration of visa, violation of visa conditions, and nationality under question are some of the grounds on which the State has previously administered deportation orders.

In Assam, in particular, vide Notification No. 1/7/61–F.III dated the 22nd March 1961, the authority of the state to adjudge individuals as foreigners under clauses (c) and (cc) of Sub–section (2) of Section 3 of the Foreigners Act, 1946, was extended to the Superintendent of Police and Deputy Commissioners under the Govt. of Assam. This was followed by the entrustment of such a power by the President vide Notification No. 14011/13/75-F.III dated 17.02.1976 by virtue of under clause (1) of Article 258 of the Constitution. This was however, subject to the various conditions.[2] The power of issuing orders for detention, however, was not entrusted and yet has been exercised wherein movement of foreigners is being curtailed and they are being placed in foreigner wards in jails or detention centres. This is in conformity with the Madras High Court judgement dated 21.09.2007 in Habeas Corpus Petition No. 1138 of 2006 titled Latha v. Public Department and Innocent v. State of Goa(which later reaffirmed this judgement)wherein it was deemed permissible for the state government to act under delegated powers under Section 3(2)(e) in keeping a foreigner in a detention camp.

Since there is immense administrative control without any definitive statutory grounds based on which deportation can take place, the State has often tried to pass arbitrary orders. For instance, in Kamil Siedczynski,[3] the State issued a Leave India Notice to a Polish student studying in West Bengal for participating in a protest against a new Indian legislation. The Court held such an order to be null and void, since it was arbitrary and without any reason. The Court held that the student was on a valid visa, and merely protesting against the State does not warrant a deportation.

Additionally, The State does not enjoy unfettered discretion to expel any foreigner. Article 21 of the Indian Constitution allows for the deprivation of life and liberty only on the basis of procedure established by law. The deportation of any foreigner must be in compliance with Article 21 and other international principles. A deportation order must be assessed by the courts to be just, fair, and reasonable as interpreted by Article 21.[4] A deportation order restricting the stay of a foreigner must also be proportionate to the end goal that it seeks to achieve.

Few principles in domestic and international law act as safeguards against the deportation of foreigners. For instance, Article 33 of the 1951 Refugee Convention talks about non-refoulement, which means that no State can send foreigners back to the place where they may face the risk of persecution. India has often argued that it has no obligation to comply with the non-refoulement principle since it is not a signatory to the 1951 Refugee Convention. Nonetheless, India must abide by the non-refoulement principle while deporting foreigners as the principle has evolved to be a part of the customary international law and is embedded in several other international instruments to which India is a signatory.

Deportation and detention run hand in hand. Section 3(2)(g) of the Act empowers the State to make orders in relation to the arrest and detention of foreigners. Foreigners awaiting deportation, individuals who do not possess documents, or foreigners whose nationality cannot be determined are kept under detention. Detention is justified by the State on grounds that Article 19 is not applicable to foreigners.[5]

Furthermore, the actions of the government actors flout procedure when detaining individuals under the pretence of them being foreigners. As per Section 4(2) of the Act, every officer making an arrest under Section 4 shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case or to the officer in charge of the nearest police-station and the provisions of Section 61 of the Code of Criminal Procedure, 1898, (5 of 1898) shall, so far as may be, apply in the case of any such arrest. The same is not undertaken in the initiation of proceedings or competition of proceedings before the FTs.

Foreigners are detained for prolonged time periods due to lack of proper deportation procedures. Deportation can only take place when the receiving country is willing to accept the alleged foreigner. In several cases, foreigners are detained indefinitely as no other countries are willing to accept them. Many alleged foreigners claim to be Indian citizens, but are not able to challenge the decision of Foreigners’ Tribunals. This implies that several Indian citizens may have been wrongfully termed as foreigners and in the absence of any challenges, they still remain under wrongful detention. This runs contrary to the principles enshrined in Article 21 of the Indian Constitution and Articles 9 and 14 of the ICCPR by virtue of which every individual, irrespective of their nationality, deserves a fair trial and has a right to approach the courts.[6]

It is to be noted that the power of detention enshrined in Section 3(2)(g) and Section 4 were deleted from the Foreigners Act vide the Foreigners Amendment Act, 1957 after the then Attorney General of India, Mr. MC Setalvad, conceded to its lack of compliance with Article 21 and Article 22 of the Constitution in the case of Hans Muller of Nuremberg v. Supdt. Presidency Jail, Calcutta, (1955) 1 SCR 1284. Such power was reintroduced by virtue of an amendment in 1962 in light of the war with China. It was via an amendment in 2013, that this power was addressed in Paragraph 3 of the Foreigners (Tribunals) Order, 1964.

Additionally, courts have looked down upon indefinite detention, since it runs contrary to Articles 14 and 21 of the Constitution.[7] In Hussainara Khatoon,[8] the Court spoke about pre-trial detention and stated that “a procedure which keeps such large numbers of people behind bars without trial for so long cannot possibly be regarded as ‘reasonable, just or fair’”. Additionally, the courts, in the case of State of Assam v. Moslem Mandal, (2013) 3 GLR 402stated that there is a limitation of 2 months for the duration of how long a foreigner may be detained.

The detention of foreigners is administrative in nature. These foreigners have not committed any penal offence; therefore, they are placed in detention centres awaiting deportation. Even if convicted of a penal offence, they are placed there after completing their sentence. Foreigners in detention centres must be treated with dignity. Unfortunately, the condition of these detention-centres is highly appalling as they fail to provide the detainees with proper food, water, hygiene, healthcare and other basic facilities.[9] This runs contrary to the hearing in Santanu Borthakur v. Union of India, tagged with W.P. (Crl) 7/2020 titled Abantee Dutta v. Union of India.The courts, vide Order 07.10.2020, observed that foreigners could not be held in jails and that the detention centres created by state government is in compliance with the standards stipulated by the central government.

The Act, first, ought to make a clear distinction between all categories of non-citizens. Further,  it needs to mention definitive grounds based on which deportation can take place. In the absence of such grounds, the administration enjoys too much leeway in administering deportation orders. Most importantly, alleged foreigners cannot be made to live in inhuman conditions within these detention-centres for an indefinite time period. Foreigners ought to be governed by a regime of rights, where they are granted all the necessary facilities within the detention-centres. A foreigner enjoys all rights as mentioned under Article 21. The government and the local-administration should be the first points to ensure the well-being of all foreigners.    

SUGGESTED READINGS:


Naturalisation

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where the students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Pritha Paul, is part of the clinic’s outcomes.

Naturalisation refers to the incorporation of migrants usually displaced due to economic, political, or environmental reasons, among others, or immigrants looking for better living conditions or educational and employment prospects in the state they move to. It is a process promising not only recognition of their socio-economic contributions but also improved socio-economic opportunities. Historically, the word ‘naturalisation’ is derived from Middle French ‘naturaliser’ which means “to admit (an alien) to rights of a citizen”.

Jus soli was the guiding principle of the eighteenth century feudal European citizenship until the French Revolution reintroduced the Roman jus sanguinis principle. Both proved inadequate when the two World Wars left numerous migrants, refugees, and stateless persons in foreign lands without protection under the laws of that state. Naturalisation provided an opportunity to people, who were neither born within a State nor had ancestral ties to it, to become citizens solely by virtue of their personal connection formed with the State. Such connections could be established through residence, intention to settle, or a lack of ties to other countries. However, most states hold elaborate and intrusive tests to scrutinise this connection. For instance, Denmark has prescribed housing, residence, employment, language, and lifestyle requirements.

In India, naturalisation is one of the five ways in which one may become an Indian citizen, governed by section 6 of the Citizenship Act of 1955. To be eligible for naturalisation, one must be of good character, reside in India for a period of eleven years, and speak any of the official Indian languages. Upon being granted Indian citizenship, one must renounce any prevailing citizenship, take an oath of allegiance, and reside in or serve India. Initially, one had to renounce one’s existing citizenship upon applying for naturalisation. This had the potential to render one temporarily or permanently stateless depending on the approval or rejection of the application, respectively. Hence, the change is appreciable. However, in a lower-middle income country like India, an application fee of Rs. 1500 and requirement of language proficiency create invisible barriers for poor and illiterate migrants. Contrarily, the privileged who have a symbiotic relationship with the state are overindulged. The state may waive any or all naturalisation requirements for “distinguished” persons. Proficiency in a local language can propel social and economic integration. However, in their home state, persecuted persons are often systematically denied education and employment. In the host state, they are put in isolated squalid detention camps without basic facilities as has been seen in the case of Rohingyas. Even when free to live in the community, they are compelled to settle in the peripheries, like the Afghans in Delhi. For such people, it is nearly impossible to fulfil the naturalisation requirements.

Naturalisation tests ensure not only a low number of naturalised persons but also fewer applicants out of fear of failure, which perhaps is the primary aim of the tests. Between 2011 and 2020, merely 1380 foreigners were granted Indian citizenship through naturalisation. Moreover, the Act, through the 2003 amendment, made “illegal migrants” completely ineligible for Indian citizenship through registration or naturalisation. The unwillingness of the State to incorporate migrants leaves them in a limbo. Most of them cannot be deported due to the principle of non-refoulement. They remain in India for the rest of their lives, but as non-citizens.

Section 6, however, is not applicable to the state of Assam, which is governed by section 6A of the Act. Unlike Section 6, which applies to all persons regardless of their origin, Sections 6A and 6B create special pathways to citizenship for persons migrating from Bangladesh. It ‘regularizes’ i.e. grants immediate citizenship to those who entered Assam from Bangladesh before 1966. Persons who entered between 1966 and 1971 are conferred all qualities of a citizen except the right to vote until ten years from the day of their detection as a “foreigner.” After ten years, they too are regularised. Those who were expelled but managed to re-enter illegally before 1971 or those who entered after 1971 are to be deported. This special provision created two artificial distinctions by:

  1. Granting regularisation to Bangladeshi migrants who entered Assam before 1971 but not to those who entered other bordering states,
  2. Allowing “illegal migrants” who entered India before 2003 to naturalise under Section 6 but not those who entered Assam after 1971.

Additionally, the Citizenship (Amendment) Act of 2019, excludes non-Muslims who entered India from Afghanistan, Pakistan, and Bangladesh before 2015 from the category of “illegal migrants.” It eases their residency requirement from eleven years to five years. The ease is a welcome move. However, the country and religion based classifications are non-secular, arbitrary, and unreasonable.  Many have argued that they violate the Indian Constitution which guarantees certain fundamental rights to all persons irrespective of their citizenship status.

A state cannot be compelled to grant citizenship. However, the Universal Declaration of Human Rights, 1948 includes in Article 15, “Everyone has the right to a nationality”. The UDHR has become customary international law binding on all states. Granting nationality through naturalisation is an important step in eliminating statelessness. Since India has an obligation towards reducing statelessness under customary international law and other international treaties, India must facilitate naturalisation of stateless persons. A provision obstructing “illegal migrants” from naturalisation is in tension with international law. Articles 31 and 34 of the 1951 Refugee Convention and Article 32 of the 1954 Convention relating to the Status of Stateless Persons instruct easing the naturalisation process for refugees and stateless persons. Ireland has reduced residency requirements for refugees and waived naturalisation certificate fee for refugees and stateless persons.

As a good practice, one may refer to Prabhleen Kaur v. Union Of India. The only country the petitioner had any real connection to under Section 8 of the Foreigners Act, 1946 was India. Denying her Indian citizenship was held a violation of Article 15 of the UDHR. The court stated that her good character evidenced in her school and college certificates, her knowledge of the nation and her being a part of a community entitle her to be naturalised under Section 6(1) of the Act and she cannot be denied citizenship.These are the factors generally looked at while granting Indian citizenship.

With the refugee crisis and statelessness becoming global phenomena, naturalisation is becoming increasingly important as a means for non-citizens to find a safe space and a community in a strange land. Ironically, the process does exactly the opposite of what it promises, acting as a constant reminder of the ‘otherness’ that one must shed for a mere chance at approval and acceptance. India must remove the restriction on “illegal migrants” and ease the naturalisation requirements for refugees and stateless persons, irrespective of religion and country. This would only be a small step towards ensuring equity and fairness.

Suggested readings:

  1. Katherine Tonkiss, ‘What’s So Bad about Citizenship Testing?’ (E-International Relations, 28 November 2014) https://www.e-ir.info/2014/11/28/whats-so-bad-about-citizenship-testing/ accessed 24 November.
  1. Oded Löwenheim & Orit Gazit, ‘Power and Examination: A Critique of Citizenship Tests’ (2009) 40(2) Security Dialogue.
  1. Albert Kraler, Migration and Citizenship: Legal Status, Rights and Political Participation (Amsterdam University Press 2006) ch 2.
  1. Pritam Baruah, ‘Not Just Equality, the CAA Betrays Constitutional Values of Dignity, Integrity’ The Wire (27 December 2019) https://thewire.in/rights/caa-constitution-equality accessed 24 November 2020.
  1. Vatsal Raj, ‘Statelessness in India – Seeking Solutions in International Law’ (Cambridge International Law Journal, 11 February 2020) http://cilj.co.uk/2020/02/11/statelessness-in-india-seeking-solutions-in-international-law/#:~:text=Migration%20is%20a%20phenomenon%20of%20human%20civilisation.&text=The%20solution%20lies%20in%20the,dictate%20the%20laws%20of%20citizenship accessed 24 November 2020.
  1. Asha Bangar, ‘Statelessness in India’ (2017) Statelessness Working Paper Series No. 2017/02 https://files.institutesi.org/WP2017_02.pdf accessed 24 November 2020.
  1. Oxford Handbook of Citizenship (Oxford University Press 2017) ch 16.
  1. Graziella Bertocchi and Chiara Strozzi, ‘The Evolution of Citizenship: Economic and Institutional Determinants’ (2006) IZA Discussion Paper No. 2510 http://ftp.iza.org/dp2510.pdf accessed 24 November 2020.
  1. Ministry of Home Affairs, ‘Procedure For Applying Online For Indian Citizenship’ https://indiancitizenshiponline.nic.in/Ic_GeneralInstruction.pdf accessed 24 November 2020.

Stateless Persons

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Niharika Jain, is part of the clinic’s outcomes.

A person is considered to be stateless if they are not recognised as nationals or citizens of any country. As per the UNHCR, at present there exist over 10 million stateless persons in the world, however only 3.9 million of them are accounted for. Civil society organisations have pointed out that this number can be as high as 15 million. In India, over 1.9 million people are facing the risk of statelessness after being excluded from the National Register of Citizens (NRC) implemented in Assam in 2019.

Statelessness is often a result of conflicting nationality laws, where one allows for nationality to be acquired at birth and the other through descent if one’s parent is also a national. It can also be a result of discrimination in nationality laws based on factors such as religion, ethnicity, gender, along with instances where the State arbitrarily deprives persons of their nationality, as in the case of Assam. Earlier the mandate of UNHCR on statelessness extended only to stateless persons who were refugees. However, it is now known that even though some stateless persons are refugees, many stateless persons never cross an international border. Statelessness affects the basic rights, including the right to nationality, that every citizen enjoys, which includes fundamental rights, civil and political rights, and economic rights.

The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness address various issues related to statelessness in the world. Article 1 of the 1954 Convention defines a ‘stateless person’ as one who is not considered a national by any State under the operation of its law. The 1961 Convention provides that a person may acquire nationality of a contracting state or not be deprived of it if they would otherwise be stateless. Part II of the Indian Constitution stipulates who is a citizen of India, but is silent on stateless persons. It is pertinent to note that India has not ratified either of the two conventions. However as per Article 51 (c) of the Constitution, the Government needs to foster respect for international law which includes treaty obligations that India is party to and customary international law. This includes the Universal Declaration of Human Rights, 1948 (UDHR), as well as the International Covenant on Civil and Political Rights (ICCPR), Convention on the Rights of the Child (CRC) and other treaty provisions that safeguard the right against arbitrary deprivation of nationality.

The Citizenship Act of India, 1955 was initially envisaged based on jus soli practice, wherein citizenship was granted by virtue of the person’s birth on state territory. This was followed by the Citizenship (Amendment) Act, 1986 that introduced restrictions based on jus sanguinis, wherein a person’s citizenship became dependent on citizenship of their parents. Section 3(1)(b) of the Act states that a person born on or after 1 July, 1987 but before the 2003 amendment shall be a citizen if either of their parents were citizens at the time of birth. However, this has the potential of creating a situation of statelessness where both parents are non-citizens or possess no nationality but the child is born in India.

The Citizenship (Amendment) Act, 2003 has the serious potential of aggravating the problem of statelessness in India as it excludes ‘illegal migrants’ and their descendents from citizenship. An ‘illegal migrant’ is defined as “a foreigner entering India without valid documents”. Section 3(1)(c) confers citizenship by birth only when at least one parent is an Indian citizen and the other is not an illegal migrant. Further, section 5 and section 6 of the Act explicitly disqualifies illegal migrants and their children from registration and naturalization respectively, and in any case as the registration of minors requires a valid foreign passport, which they do not possess due to statelessness. This poses a threat of statelessness as they are unable to acquire citizenship from any of the provisions of the Citizenship Act, despite residing in India for a long time, having family ties and attachment to India.

The identification of stateless persons within a jurisdiction is an important step in ensuring they are accounted for in legal documents and can benefit from various human rights commitments. In India, the Foreigners Act, 1946, which has been put in place to regulate the entry, presence and departure of foreigners in India, fails to distinguish between the different categories of non-citizens. The Act defines a foreigner as “a person who is not a citizen of India” and bundles both stateless persons and persons with another nationality together without differentiation. Section 8 of the Act on the determination of nationality does not account for the risk of statelessness where, after the completion of the determination procedure, a foreigner appears to have no nationality. There is no mention of ways in which the issue of statelessness can be resolved, or of the fate of such persons on identification.

The Passports Act, 1967 is the only Indian legislation that mentions the category of stateless persons and caters to their need to have a record of their identity. Section 4 of the Act provides for issuance of passport, travel document and certificate of identity. Schedule II part II of the Passport Rules, 1980 states that a Certificate of Identity can be issued for stateless persons residing in India, for foreigners whose country is either not represented in India or whose nationality is in doubt. However, the form for the certificate makes it mandatory to submit a ‘residential permit’ along with information regarding the ‘last permanent address abroad’. This is based on the assumption that the applicant is a migrant from abroad and fails to account for a person who may not have left the country. This was addressed in the case of Sheikh Abdul Aziz v. State NCT of Delhi, where the HC recognised the urgency of determining the legal status of the petitioner as he had been detained for seven years in addition to his sentence under Section 14 of the Foreigners Act. The Court directed the Government and the Passport authorities to issue a stateless certificate under Rule 4 and grant him a Long-Term Visa (LTV) after the failure of nationality determination. This enabled his right to a dignified existence upon Indian soil.

More recently, the National Register of Citizens implemented in India has left many on the verge of statelessness. The final NRC list, published on August 31st 2019, excluded about 1.9 million people, leaving them at the risk of statelessness. As per scholars, this coupled with the Citizenship (Amendment) Act, 2019 is discriminatory in nature as it only allows non-Muslims, who are religiously persecuted minorities in Pakistan, Bangladesh and Afghanistan, to be granted citizenship. Section 14A added by the 2003 Amendment to the Citizenship Act, 1955 authorized the Government to compulsorily register every Indian citizen in a National Register of Indian Citizens and issue National Identity Cards. The purpose of this is to identify and deport illegal immigrants. The first National Register of Citizen was prepared for Assam, after the 1951 census of India, to identify illegal immigrants, but it was not maintained. This was again taken up following the SC order in 2013 whereby the Government was directed to update the NRC for Assam. As per several high-ranking government ministers, NRC is proposed to be implemented across India. There are concerns that it may result in putting more people across India at the risk of statelessness if they are unable to show documents that prove their ancestors were citizens of India.

Suggested Readings:

  1. “Securing Citizenship India’s legal obligation towards precarious citizens and stateless persons”, Centre for Public Interest Law, Jindal Global Law School, September 2020.
  2. Bikash Singh, ‘Citizenship Amendment Bill: Why Assam is protesting?’ Economic Times (17 December, 2017)
  3. India and the Challenge of statelessness: A review of the legal framework relating to nationality, National Law University, Delhi, 2012.
  4. The Institute on Statelessness and Inclusion, The Worlds Stateless: Deprivation of Nationality, March 2020, Microsoft Word – FINAL PART I.docx (institutesi.org).
  5. United Nations Human Rights Office of the High Commissioner, Institutional Discrimination and Statelessness in India, Special Rapporteur on Freedom of Religion or Belief, Mr. Ahmed Shaheed, June 1st 2020, Microsoft Word – Statelessness in India.docx (ohchr.org).

The Indian Judiciary and Its Record on Statelessness

Anushri Uttarwar is a fourth-year B.BA. LL.B.(Hons.) student and Student Fellow at Centre for Public Interest Law, Jindal Global Law School. Arunima Nair is a second-year LL.B. student at Jindal Global Law School and an Editor of the Parichay Blog. Anushri and Arunima are among the authors of Securing Citizenship: India’s legal obligations towards precarious citizens and stateless persons, released in November 2020. 

Securing Citizenship highlights India’s legal obligations towards stateless persons and precarious citizens within its territory. It does so by expounding the applicable international human rights framework to the state, with every person’s right to nationality and every state’s duty to prevent statelessness as its two integral interwoven threads. Additionally, the report links the said international framework to the Indian state’s corresponding obligations under present domestic law. This article discusses one such aspect viz. the approach of Indian courts in cases involving persons of uncertain nationalities.  

The Indian state’s efforts to uphold every individual’s right to nationality and its duty to avoid and reduce statelessness have been minimal. It has not signed either of the two international conventions on statelessness and has not actively engaged in any global efforts to fight statelessness. As we have noted in our report, neither the Foreigners Act, nor the Citizenship Act, nor the Passport Act and their attendant rules, account for the legal lacunas that can create statelessness. The statutory terms ‘illegal migrant’, ‘foreigner’, and ‘citizen’ cannot be interchangeably applied to a stateless person. The present citizenship determination regime, which places the burden of proof upon the impugned individual and suffers from a well-documented lack of functional independence and procedural safeguards, has actively jeopardized the citizenship status of 1.9 million individuals in Assam in August 2019 (with subsequent deletions and an ongoing Government-led demand for 10-20% re-verification of the 2019 NRC).  

The Indian judiciary’s record on this front has been mixed. The Supreme Court’s judgments in the Sarbananda Sonowal cases (2005 and 2006) decisively laid down the roadmap governing citizenship determination in India. In these cases, the petitioners had impugned the Illegal Migrants (Determination by Tribunal) Act, 1983 (‘IMDT’) and the Foreigners (Tribunals for Assam) Order, 2006, both of which placed the onus upon the state to prove an individual’s foreigner status. The Court agreed and struck them down as unconstitutional. It anchored its reasoning in a broad interpretation of “external aggression” in Article 355 of the Constitution, stating that a “vast and incessant flow of millions” of illegal migrants from Bangladesh into Assam was akin to a “war”, posing a serious existential threat to the economic and social fabric of Assamese society. The Bench cast it as the Central Government’s “foremost duty” to protect its citizens from such aggression; statutes like the IMDT made it far too “cumbersome” to detect and deport foreigners and fulfill this duty, as opposed to the far more “effective” Foreigners Act. Sarbananda Sonowal is still good law; it is the underlying foundation for subsequent Supreme Court decisions, such as the one kick-starting the updation of the NRC and its eventual monitoring of the modalities of the entire NRC exercise

Nevertheless, the Indian Judiciary has occasionally taken cognizance of the tumultuous issue at hand. In each of those occasions where the courts decided to address the said issue, they have consistently observed the insufficiency of domestic laws addressing statelessness and the disastrous consequences of statelessness. These observations have aided them in interpreting the existing domestic statutes liberally so as to prevent the individual in question from being rendered stateless. Interestingly, in these cases, while the courts reasoned their judgments in line with international law on statelessness, they did not make concrete references to it. Four such cases have been outlined below. 

In Gangadhar Yeshwanth Bhandare, the respondent was found to have been a part of a secret Indian governmental mission. His participation in that mission had caused him delay in adhering to the guidelines that had to be followed by those in pre-liberation Portuguese territories who wanted to be considered Indian citizens. It was then alleged that he was not an Indian citizen. The Supreme Court held that the respondent was indeed an Indian citizen since he had renounced his Portuguese nationality already and to hold him to not be an Indian citizen at this stage would render him stateless. Such a consequence was unacceptable for the Court. 

Similarly, in Jan Balaz, the Gujarat High Court interpreted the Indian Citizenship Act, 1955 liberally to prevent the chances of the children born to an Indian surrogate from becoming stateless. The court observed that the children in question would not be able to claim citizenship by birth in Germany (due to the country not recognising surrogacy). It observed that they would have been rendered stateless if they were not accorded Indian citizenship, thereby affirming that they would be eligible for Indian citizenship by birth.  

In Prabhleen Kaur, the petitioner’s nationality was suspected, thereby causing her passport renewal application to be rejected by the relevant authority. The Delhi High Court held that rejecting her application on a mere doubt is manifestly unjust at that stage, as it could leave her stateless, indicating that she can only be ascribed an Indian nationality. 

Once again, in Ramesh Chennamaneni the Telangana High Court pioneeringly held that the power of the Indian government to deprive one’s citizenship under Section 10 of the Act is restricted by several constraints, including the duty of a state to avoid statelessness within its territory. Since in the situation before it, deprivation of citizenship would result in the petitioner being left stateless, the court set aside the committee decision that cancelled his citizenship. 

Apart from circumstances where a petitioner was at the risk of statelessness by virtue of the (in)actions of the Indian state, Indian courts have also acknowledged the need to legally recognize the status of stateless persons existent on Indian territory. By this we mean persons in India who have been rendered stateless by the actions of another state, not India. The Delhi High Court in Sheikh Abdul Aziz (W.P. (Crl.) 1426/2013) was confronted with a petitioner who had been languishing in immigration detention, far beyond his initial sentence under the Foreigners Act. The petitioner’s nationality determination had failed i.e. the Government could not confirm which nationality the man belonged to. The Court here pulled up the Government for its inaction in issuing a stateless certificate to the petitioner, and directed it to do so as the necessary first step towards the petitioner’s overdue release from detention. The stateless certificate, and the subsequent granting of a Long-Term Visa, were essential steps to ensure the petitioner did not become a phantom within the legal and civic community.  

Moreover, our report also argues that stateless certificates cannot and should not operate as obstacles to any application for citizenship. The Indian state has an obligation under international law to prevent and reduce statelessness, and to ensure that individuals can enjoy their right to nationality. Stateless individuals must not be stateless in perpetuity; their continuous residence and community ties in India should entitle them to be naturalised as citizens, per the procedures for naturalization. In the celebrated Chakma case, the Supreme Court created precedent by holding that stateless individuals like the Chakmas in Arunachal Pradesh had a statutory right to be considered for Indian citizenship under Section 5 of the Citizenship Act. Local administrative officials therefore had no grounds for stalling and refusing to forward Chakma individuals’ citizenship applications. The Delhi High Court, in a subsequent case dealing with a plea by a Tibetan individual who was born in India in 1986 to two Tibetan refugees, held that the petitioner’s stateless identity certificate did not bar her from being eligible for Indian citizenship by birth under Section 3(1)(a) of the Citizenship Act, and directed the MEA to process her application expeditiously. 

The pattern of the judiciary utilising international law standards on statelessness continues even in cases where the Court could not come to a decision immediately in favor of the petitioner, as the Patna High Court did recently in Kiran Gupta v State Election Commission. The appellant here was challenging an Election Commission decision that cancelled her Panchayat electoral victory, on the grounds that she was not an Indian citizen when elected. She was a Nepali citizen at birth, and had resided in India and raised her family for 17 years since her marriage to her Indian husband, along with possessing a Voter ID, a PAN card, and property in her name here. She had even terminated her Nepali citizenship in 2016. However, she admitted that she had failed to register for Indian citizenship under Section 5 of the Citizenship Act.  

The Court’s hands were tied: the conferral of Indian citizenship is clearly an Executive function, with the various procedures laid out in the statute. It held that it could not step into the shoes of the Executive and declare her an Indian citizen. Despite this, however, the Court demonstrated sensitivity towards the petitioner’s unusual situation. She was caught in a precarious situation where she possessed neither Indian nor Nepali documents of citizenship. In its final few pages, the Court crucially reiterates the duty upon the Indian state to prevent and reduce statelessness, in spite of signing neither statelessness convention. India has signed and ratified several other human rights treaties with provisions limiting nationality deprivation, such as the ICCPR, CEDAW, ICERD, and CRC. In its operative portion, the Court directed the Government to be mindful of the petitioner’s peculiar circumstances as and when she applies for citizenship. The Patna High Court demonstrates the capacity of courts to step in and affirm the internationally recognised and binding duties to prevent and reduce statelessness.  

At this juncture, it is imperative to note that the aforementioned cases present what we would consider ‘aspirational’ statelessness jurisprudence in the context of India. They are, unfortunately, exceptions rather than the norm: a litany of court decisions follow the overarching rationale of Sarbananda Sonowal and are either unaware of or wholly indifferent to individuals’ right against arbitrary deprivation of citizenship and the duty to prevent statelessness under international law. Foreigners Tribunals (‘FTs’) have consistently been passing orders that are arbitrary and ripe with procedural inadequacies, thereby designating an increasing number of individuals as foreigners. Adverse FT decisions are based on any and every minute clerical error or inconsistencies within their documents. Many such decisions have been upheld on appeal in the Gauhati High Court; as an indicative selection, in Nur Begum v Union of India and Sahera Khatun v Union of India, the burden of proof as per Section 9 of the Foreigners Act was interpreted stringently as one that rests absolutely upon the proceedee. In Jabeda Begum v Union of India, 15 official documents were found to be insufficient to discharge the said burden.  

To conclude, given the polar contrasts within the Indian statelessness jurisprudence, the judiciary’s role will remain incomplete unless accompanied by comprehensive legislative and policy changes. This would require India to not just formally accede to the 1954 and 1961 Conventions, but to also reform its current citizenship framework and explicitly allow for the expedited naturalisation of stateless persons. One hopes that the Executive catches up soon and fortifies its obligation. 

Excerpt: Legal Recognition of Status of Statelessness in India

The following post is an excerpt from the upcoming report Securing Citizenship’ on India’s legal obligations towards precarious citizens and stateless persons authored by the Centre for Public Interest Law, JGLS and Faculty of Law, Université Catholique de Lille. The Report reviews and comments on the key contemporary legal issues pertaining to citizenship and statelessness in India. Divided into three chapters – Citizenship StatusDetention and Socio-Economic Rights – the Report presents recommendations to strengthen the existing legal framework. This excerpt is the first in a three-part series of excerpts from the report. The next two excerpts will cover ‘Rights of Child Detainees’, and ‘Socio-Economic Rights of Stateless Persons’. The entire Report will be published in the final week of November, and the schedule of events can be found here.

II. LEGAL RECOGNITION OF STATELESSNESS IN INDIA

A. Recognition of Status

Statelessness poses a moral and normative challenge to the legitimacy of the international state system. In simpler terms, since the world is comprehensively divided between nation states, then every person should be able to claim citizenship and its attendant rights somewhere. Yet, thousands of people around the world face barriers in claiming citizenship rights in any nation because of several aggravating factors.

There are several stateless groups in India who either arrived or were born in India as stateless persons, such as the Tibetans and the Rohingyas. This section pertains to these stateless persons in Indian territory whose citizenship was not deprived as a result of any action of the Indian state. They have no avenues of return to their country of nationality as a result of their statelessness i.e. their state does not accept them as nationals. Thus, they are prohibited from exercising their right to return. In this situation, they cannot be deported and continue to reside in India as subjects of a legal framework which does not formally recognise their status.

A close reading of the Indian domestic law framework governing the status of non-citizens [the Constitution (Articles 5 – 11); the Citizenship Act, 1955 (Sections 2, 3, 6, 6A, 6B, 10); the Foreigners Act, 1946 (Sections 2, 3, 8, 9); and the Passports Act, 1967 (Section 4)] reveals that the definitional categories determining the legal status of an individual are inadequate for guaranteeing the rights of stateless persons. The use of the terms ‘illegal migrant’, ‘foreigner’, and ‘citizen’, as distinct and oppositional categories, operates on the implicit assumption that the person whose status is to be ascertained must be in possession of at least one nationality, even if that nationality is not Indian. None of these terms can be used interchangeably for a stateless person; the Acts simply do not define or acknowledge the phenomenon of statelessness.

International law on the right to nationality of every individual along with the obligation on the state to prevent and reduce statelessness commands states to naturalise all stateless persons in their territory. Hence, it is imperative that the Indian state recognise stateless persons formally and issue identity certificates to them, thereby ensuring recognition of their equal legal personhood for them to avail their rights. These certificates will ensure that their special situation would be addressed. The only pieces of legislation that recognise the status of stateless persons are the Passports Rules, 1980, framed under the Passports Act, 1967, which grant the MEA the power to issue certificates of identity. However, the duty of the state under international law, constitutional law and human rights law (as argued above) does not end with issuing certificates of identity. India must grant them nationality in accordance with international law obligations to ensure that they can enjoy their right to nationality.

As emphasised in previous sections, the lack of legal status is a direct infringement of an individual’s right to a dignified life under Article 21 of the Indian Constitution. In a juridical framework, a dignified existence can only be secured through recognition as an individual member of the civic community, which in turn forms the foundation for the free exercise of bodily integrity, autonomy, and self-determination. In Sheikh Abdul Aziz, the Delhi High Court recognised this urgency of determining the legal status of the petitioner. The Court excoriated the Central Government for its inaction in issuing a stateless certificate to the petitioner after nationality determination had failed, particularly after he had been confined in detention for an additional seven years, well beyond his initial sentence under Section 14 of the Foreigners Act. It understood that the issuance of a stateless certificate, under Rule 4 of the Passports Rules, 1980, and the subsequent granting of a Long-Term Visa (‘LTV’), were essential for the petitioner’s release from detention, and enabling his right to a dignified existence upon Indian soil. In National Human Rights Commission (Chakma case), the Supreme Court held that eligible stateless individuals, like the Chakmas in Arunachal Pradesh, have constitutional and statutory rights to be considered for Indian citizenship. Local administrative officers cannot refuse to act upon Chakma individuals’ applications under Section 5 of the Citizenship Act to the Central Government. The Court also held that the state is obliged to protect Chakmas from eviction and threats of assault even while their citizenship applications are pending. These cases indicate Indian courts’ proactive approach in reducing indeterminacy of status for individuals, assuring the terms of their membership in the civic community. 

For stateless persons in India, international law necessitates that the burden is always upon the Indian state to fairly and expeditiously determine legal status for such persons. As we have argued at length above, the state’s sovereign prerogative in citizenship matters is implicitly circumscribed by international law and human rights standards. Therefore, it is the state’s obligation to establish whether they are recognised nationals of any other country. If the state fails in establishing that, they must be naturalised i.e. granted Indian nationality.

It is also important to note that statelessness should not operate as an impediment to an eventual path to Indian citizenship. The naturalisation of stateless persons within the ambit of India’s existing citizenship laws has precedent: the Delhi High Court in Namgyal Dolkar ordered the MEA to issue an Indian passport to the petitioner who, despite holding a stateless identity certificate and being born to two Tibetan refugees, was eligible for Indian citizenship by birth under Section 3 (1)(a) of the Citizenship Act.

The significance of naturalising stateless persons residing in a State was recently followed by the ECtHR as well. In Sudita Keita, the applicant had arrived in Hungary in 2002. He was subsequently recognised as a stateless person after the local courts recognised that the burden on the applicant to prove lawful stay was contrary to Hungary’s international law obligations relating to statelessness. Furthermore, in the case at hand, the ECtHR held that the stateless applicant had been left in a vulnerable position for 15 years without access to an effective and accessible naturalisation procedure. With reference to international law on statelessness, the Court highlighted that his situation had resulted in grave difficulties in access to healthcare and employment and violated his right to private and family life.

This report further argues that the stateless persons should be automatically naturalised (i.e. grant of nationality) since any formal requirements in this regard would place an undue burden upon them. Such a process would fail to recognise the underlying discrimination and lack of access to documents. This is visible in the Sri Lankan experience with grant of nationality as elaborated in Section I.C.1 of this chapter in the full report.

Hence, it is only through naturalisation that stateless persons can access the full extent of their rights. Their exceptionally vulnerable situation and international law obligations demands that the state shall automatically recognise them as citizens.