Citizens Erased

On 12 August 2015, at around 1 am, 38-year-old Kismat Ali and six of his family members were asleep in their house, in the Sonajuli village of western Assam’s Udalguri district, when they heard people aggressively banging on their door and calling out, “Kismat! Kismat!” He opened the door to discover that the border police of Assam had surrounded his house. The officers forced Kismat to leave with them for the police station, without answering his questions about why he was being taken away. On their way, the police picked up Ashraf Ali, a 40-year-old resident of the same village. At the Udalguri police station, the police officials wrote a statement and coerced them to sign it. Kismat read the statement: “Main Bangladeshi hun”—I am a Bangladeshi.

“Main Hindustani hun”—I am an Indian, Kismat recalled telling the police. “Mujhe Bangladeshi kyun bana rahe ho”—Why are you making me out to be a Bangladeshi? He said the police threatened Ashraf and Kismat into signing the statement, following which they were taken over 200 kilometres away to the detention centre in Goalpara district—one of six in the state. The detention centres hold those D-voters, or “doubtful voters”—residents of Assam suspected of residing illegally in the state—who have subsequently been declared foreigners by the state’s quasi-judicial Foreigners Tribunals. As of 25 September 2018, a total of 1,037 declared foreigners were being held in detention centres across Assam, according to a recent report by the human rights organisation Amnesty International.

Amnesty released its report, titled, “Between Hate and Fear: Surviving Migration Detention in Assam,” on 23 November this year, in the wake of the approaching deadline for the Supreme Court-mandated project to revise the National Register of Citizens—a list of Assam’s Indian citizens. In the latest draft of the NRC, released on 30 July, around 40 lakh residents of the state were left out. Earlier this month, the apex court extended the deadline for claims and objections against the list for inclusion in the NRC, until 31 December. Those who will be left out are likely to face detention, as seems to be the default in Assam’s NRC project.

Kismat and Ashraf were declared Indian citizens only after intervention by the Supreme Court and a Central Bureau of Investigation enquiry. Their cases are illustrative of how the NRC alienates suspected foreigners—predominantly Assam’s Bengali-origin Muslims, followed by Bengali Hindus—at every stage of the process. These include rigid documentary requirements that create near-insurmountable hurdles for inclusion, discriminatory proceedings before the Foreigners Tribunals that are often concluded ex-parte or without legal assistance, followed by inhuman living conditions in the detention centres. The period of detention, too, is marked by a haunting uncertainty about when, if at all, it will end. It was evident that Kismat’s stint in the detention centre continues to prey on his mind. At several points, he repeated, “Do saal, do mahina, satra din”—Two years, two months, 17 days.

At the release of Amnesty’s report, held at the Press Club of India in Delhi, Asmita Basu, a researcher with Amnesty India, moderated two panel discussions about the NRC project in Assam. In the first panel discussion, Kismat, Ashraf and his wife, Tara Khatun, recounted the ordeals that they had suffered. Recalling the night Ashraf was detained, Khatun said, “Hum logo ko aise ghera jaise hum log aatankwadi ho, jaise hum bahaar se aaye ho”—They surrounded us as if we were terrorists, as if we were foreigners.

After India helped create Bangladesh out of East Pakistan, in 1971, Assam saw an influx of migrants. This amplified the state’s indigenous communities’ disdain for Bengali-speaking Muslims and Hindus. Muslims who have migrated long ago have also been branded as “Bangladeshis.” Muslim residents such as Kismat and Ashraf also suffer due to the prejudice. Kismat’s parents are from Uttar Pradesh and moved to Assam for work before he was born, while Ashraf moved to Assam from Bihar for work. They both had the necessary documents issued by the state government to prove their citizenship, but were unable to do so because they were declared foreigners in ex-parte proceedings.

The day after Ashraf was picked up, Khatun went to the Udalguri police station to enquire about her husband’s detainment. She showed them documents that stated that he was from Bihar. “Unhone kahan ki iska kya karna hai?”—They said, what do we do with this, Khatun recalled. “Hum logo ne Hindi mein bola. Toh who kehte hai ‘Assamese bolo’”—We spoke to them in Hindi, then they asked us to speak in Assamese.

Over the course of his detention, Khatun met Ashraf six times. “It took us five hours to reach the detention centre and each trip cost us Rs 5,000,” Khatun said. They had to speak from a distance of almost ten feet and were only able to speak for around 20–25 minutes, which made it difficult to discuss the legal proceedings in full. The border police took money from her to provide food and other necessities to Ashraf in the centre, Khatun added. They even made her pay for photocopies of documents that they needed for Ashraf’s detention.

While Khatun was vocal about their ordeal, her husband spoke very little through the event. “Not just me, a lot of people in Assam are suffering like this,” Ashraf said. But he seemed unable to speak much else about his stint at the detention centre. “Aaj ki date mein bhi hum baat nahi kar sakte”—Even today, I am unable to speak about it.

The detention centres in Assam are cordoned-off parts of a jail, where the declared foreigners enjoy fewer privileges than persons facing trial or convicted of crimes. At the Goalpara detention centre, Kismat and Ashraf said they were taken to a room, in which over 100 people were shoehorned into a space meant for 40. Both of them were given a small space near the bathroom. “Jab log apne haath dhote the, paani humpe girta tha. Raat ko so nahi paate the hum”—When people washed their hands, the water would fall on us. We couldn’t sleep at night, Kismat said. Since the quality of food was bad, Kismat survived on tea for a whole month. Referring to Ashraf, he added, “Yeh mujhe kehta tha ki khaana nahi khaaoge toh mar jaoge. Ek din maine kaha ‘Yeh khaana khaane se toh mar jaana hi acha hai’”—He used to tell me that if I don’t eat, I will die. One day I told him, dying would be better than eating this food.

In January this year, Harsh Mander, a civil-rights activist, visited the Kokrajhar and Goalpara detention centres as the National Human Rights Commission’s special monitor for minorities, to inquire about the state’s NRC project. Mander’s team noted that the detainees were not granted basic rights that were afforded to inmates of the jails, such as the right to parole and right to work.

“In one case, a detainee’s father had passed away,” Aman Wadud, a lawyer who frequently appears before the Foreigners Tribunal, and who was one of the panellists during the second discussion, said at the event. “He was not allowed parole to attend his father’s funeral. The dead body was brought to the detention centre and from the window he saw his father’s face.” When Mander questioned the jail authorities about the denial of such rights, they said, “Parole hum foreigners ko toh de hi nahi sakte hai, hum Indian ko hi de sakte hai”—We cannot give parole to foreigners, we can only give it to Indians. However, even D-voters, who are not declared foreigners, are not given these rights.

“They are jails within the jails,” Mander said. “There is no legal set of rules which governs what rights these people have.” While they are not supposed to be treated as prisoners, there are no guidelines that regulate the treatment of detainees in the centres. Mander said that in the absence of any law, the jail manual should apply to them, but added that “these rights are also selectively not given to them.” For instance, most jails have courtyards so that there is some breathing space for the inmates—this was not there in the detention centres that Mander visited, he said.

In addition to the physical living conditions at Goalpara, the prison staff’s behaviour towards the inmates was violent and condescending. The jail superintendent used to refer to the detainees as “Bangladeshis,” Kismat said. “If someone committed a small mistake, like breaking the queue to take food, the officials would take them to the office and beat them up,” he added.

The detention centres adversely affected the mental health of the detainees, especially in the women’s detention centre in Kokrajhar. Mander said the women’s mental health was visibly deteriorating. “When they got a sense that there is somebody willing to listen, it was like a mass mourning,” he said. “They went on their knees and they were beating themselves.” Some women have to see their children grow up in the detention center itself—a boy is allowed to stay with the mother in the centre only till the age of six, after which he is sent back to his family, though a girl can stay for an indefinite period of time. At the event, Amnesty released a documentary on the NRC process. In it, Roshminara Begum, a detainee at Kokrajhar detention centre, who was three months pregnant when she was detained, said, “Many women went mad. Some would talk to trees.”

Taking into account the mental-health concerns, Abdul Kalam Azad, who was a part of Mander’s team, has been conducting independent research into the number of people who have committed suicide due to the uncertainty of their citizenship. “When the NRC started, in 2015, there were three cases of suicide,” Azad said. “In 2018, there were 19 cases of suicide and most of them are after the publication of the list.” Most of these people were from minority communities, such as Bengali-origin Muslims and Hindus, and Koch-Rajbongshis—an indigenous tribe in the state. Azad said that a common perception expressed by the families of some of the victims was that if people were forced to face indefinite detention, the detainee would rather “have the luxury to take my own life.”

The inhumanity of Assam’s detention centres is compounded by a fundamentally flawed adjudicatory process that is disproportionately biased against Bengali-origin Muslims. Wadud, who represented Kismat and Ashraf before the Foreigners Tribunal, said that the determination of whether someone is a foreigner is made on the basis of either election-commission records, or a police investigation. “Now, I have hardly come across any case where there was investigation,” Wadud added. “Without investigation, any person can be accused of being an illegal migrant.”

Ashraf and Kismat were fortunate to get legal representation from lawyers who took up the case pro bono—only about 30 percent of the detainees accessed legal aid, according to the Amnesty report. Yet, Ashraf and Kismat were detained at the Goalpara centre for over two years before they were released, in October 2017. Kismat and Ashraf had been declared foreigners several years before they were detained. In 2005, the election commission recorded both of them as D-voters, following which the border police referred their cases to the Foreigners Tribunal in the Mangaldai city, to adjudicate on the issue. Two years later, the tribunal declared them foreigners in an ex-parte judgment. It was only when they were detained that they discovered that they had already been declared foreigners.

According to Anas Tanwir, one of the lawyers who represented both of them in the Supreme Court, and often takes up NRC-related cases, their case would have been dismissed by the Foreigners Tribunal had they gotten a fair hearing. “They had the state government’s documents that Kismat is from UP and Ashraf is from Bihar,” Tanwir told me.

But fair trials are rare at the Foreigners Tribunals. In most cases, a tribunal delivers an ex-parte judgment because the suspected foreigners do not receive the notice to appear before the tribunal, or are unable to read it. Perhaps the most egregious deviation from standard criminal procedure is that the Foreigners Act places the burden of proving Indian citizenship on the person accused of being a foreigner. “Even if someone has done a murder, the burden of proof is on the state to prove that they have done the murder,” Wadud said. “These accused are the poor, the most underprivileged, who do not have resources to get legal representation.”

The atmosphere during proceedings at the Foreigners Tribunals is also often hostile and intimidating for the suspected persons, Wadud said. “If you stand in front of the tribunal, there will be some kind of fear.” He recalled an instance where this sense of fear had led to an adverse finding against the suspected foreigner. “The brother of the accused was deposing before the tribunal. He said everything accurately. But suddenly, he forgot his sister’s name.” Wadud said that contradictions such as these often lead the tribunals to declare Indian citizens as foreigners.

Appeals against Assam’s Foreigners Tribunals judgments are heard by the Gauhati High Court—making the choice expensive and daunting. In June 2016, the court dismissed Kismat and Ashraf’s appeals. They challenged the high court’s decision before the Supreme Court. During the hearing, Tanwir recounted, Amitava Roy, a judge from Assam who was presiding over the appeals, said, “These people are foreign nationals. It’s my state and I know about the problem.”

His assumption was incorrect. In May 2017, the Supreme Court directed a CBI inquiry into their claims of citizenship. The investigative body submitted a verification report confirming that Kismat and Ashraf were Indian citizens, following which the court remitted the case to the Foreigners Tribunal. Despite the CBI’s report, the apex court ruled that “the appellants shall remain at the detention camp till the matter is decided by the tribunal.” On 30 October, the Foreigners Tribunal declared that Kismat and Ashraf were Indian citizens. After two years, two months and 17 days of wrongful detention, they were released from Goalpara.

Between 1998 and 2016, 80,194 people were declared foreigners—2,586 per year—according to the Amnesty report. By November 2017, this rose to 1,221 per month—the first draft of the court-mandated NRC came out in December 2017, which enlisted 1.9 crore people and left out 60 percent of the applicants. At the Amnesty event, the second panel comprised Mander, Azad and Wadud, who were later joined by an Amnesty India researcher Leah Verghese. They discussed the obstacles preventing inclusion in the NRC, and the reasons for the drastic rise in the number of declared foreigners.

“The determination process is divorced from the reality of documents in India,” the Amnesty report states. Clerical errors, such as misspellings and rounded-off dates, which are common in official documents, lead to the tribunals declaring Indian citizens as foreigners. The report records an example of the arbitrary process—Subrata Dey, an Indian citizen who died in Goalpara on 26 May this year, was sent to the centre because his name was spelt “Subodh” in his identity documents. His family was preparing documents to appeal before the Gauhati High Court when they learnt of his death.

“The ask is also so huge,” Basu, the moderator, said. “You are asking people to prove identity in a country where even birth registration doesn’t happen as it should.” This becomes particularly difficult for Assamese women, because many of them are married off before they turn 18 years of age, and obtain voter cards and other legal documents only after marriage. As a result, there are often discrepancies in their place of birth and electoral constituency. In certain cases, the gaon burah, or village headman, issues a certificate of residence, but it is not admitted as proof because the gaon burah did not testify before the Foreigners Tribunal.

The NRC determination process also fails to consider that migration is common in the border areas. “The law creates these categories—immigrant, foreigner, citizen,” Verghese said. “But if you look at the lives of people in living in border areas, it is a life of movement—of migration. Migration is natural to human beings. So there is a very huge gap between the categories that the law makes and what people are experiencing.”

After a tribunal declares someone a foreigner, they are invariably sent to one of Assam’s six detention centres. The detentions are not governed by any legal regime—there is no statutory limit for its duration, no periodical review of continuing detention, and they violate international law, which stipulates that detention must be the exception, and not the norm. The Foreigners Act provides several alternatives to detention, such as restricting the areas that a person may reside or travel to, or prohibiting them from associating with particular groups or engaging in certain activities. Instead, as Verghese observed at the event, “Detention has become the default option in case a person is to be declared a foreigner.”

The dramatic rise in detentions has also been a result of pressure from the state government on the Foreigners Tribunals and the Border Police—detainees such as Kismat and Ashraf have become collateral damage to this directive. “There are reports that there was pressure on them”—Foreigners Tribunals—“to declare more and more people as foreigners,” Verghese said. She added that there was “a rush to declare people as foreigners” since 2015—in December 2014, a division bench of the Supreme Court comprising Ranjan Gogoi, who hails from Assam, and Rohinton Nariman, ordered that the NRC be updated in a time-bound manner.

A September 2018 report in The Hindu affirms that the Border Police is under similar pressure. According to the report, a Border Police officer who requested not to be identified “admitted that outposts in the districts are required to provide 20 cases a month while the target for each urban police station is five or six.” Mander’s report on his NHRC mission to the detention centres notes that Louis Aind, the deputy commissioner of police (crime) of the Guwahati Police, who was earlier in charge of the Border Police, admitted that each unit had a monthly target to refer six cases to the Foreigners Tribunals. Referring to this, Wadud noted, “So basically, when they do not find any illegal migrant they manufacture illegal migrants.”

All the panellists on the second discussion suggested that the central and state governments have been trying to suppress details about Assam’s detention centres. Mander said he was deterred from visiting the centres despite being the NHRC’s special monitor for minorities. When he persisted, he was allowed to go along with two associates, but the NHRC later refused to forward or act on his report. In June 2018, Mander resigned from the position and released the report on his own.

Among other concerns about the adjudication process, lack of legal representation and deplorable jail conditions, Mander’s report raises key questions about the future prospects of the detainees. The presumption against the detainees is that they are illegal immigrants from Bangladesh. But the Bangladesh government has said that the NRC and the ongoing detainment is “India’s internal matter.” India and Bangladesh have not entered into any formal agreement on deporting those who are declared as “Bangladeshis.”

During the panel discussion, Mander said that he had even come across cases of people claiming to be Bangladeshis, who were not allowed to return to the country. “Not only are the persons who the Foreigners Tribunal judge to be foreigners detained for many years, there is no prospect of their eventual freedom from this incarceration,” Mander states in his report. “At present, it appears that they may actually be detained for the rest of their lives.”

During the Amnesty event, one of the attendees asked the panel about the politics behind the NRC and the arbitrary detentions. Mander replied, “The BJP government is very clear on its citizenship. If you are a Hindu, Buddhist, Sikh, Christian—everything but a Muslim—you’ll be considered a refugee. But if you are a Muslim, you’ll be a foreigner.” He added that he thinks that the people of Assam have a “nationalist” feeling and not a “communal” feeling. Kismat expressed the same sentiment. He spoke about how all people from his village welcomed him when he returned. “Not just Muslims, Hindus, Assamese, all came to meet me. They burst crackers, hugged me.”

After their release, Kismat, Ashraf and their families applied for inclusion in the NRC ahead of the final draft list, which was released on 30 July. In December, Assam’s NRC coordinator, Prateek Hajela, informed the Supreme Court that 14.8 lakh claims had been filed out of the 40 lakh people excluded from the July draft. Neither Ashraf, nor any of the members of Kismat’s family were included in the July draft, though Khatun was listed in it. The rest have since reapplied, but Kismat said he was now apprehensive because they had been rejected in spite of the Foreigners Tribunal’s verdict—not an uncommon phenomenon, according to Wadud. If they are excluded again, Kismat, his family and Ashraf face an uncertain future in which they are denied rights enjoyed by Indian citizens.

Khatun was angry. “What is the Indian government doing? Why are they not seeing our problems?” she asked. “Are we not worth living in Assam?”