Stateless and Marginalised in Assam
— Written by Colin Gonsalves
Sanaullah incident where a former soldier was declared a foreigner by an Assam Tribunal exposed the gaping hole in the armour of the NRC. No doubt the State will scramble to correct the injustice. But for the poor in the State nobody will bother.
A Peoples Tribunal was held on the National Register of Citizens and the Citizenship (Amendment) Bill, 2016.The Muslim minority was angered at the sheer injustice that 4 million of them had been declared foreigners.Some of themwere put in detention centres in violation of international law prohibiting the incarceration of stateless people. According to the NHRC, they faced awful conditions. They were terrified anticipatingthat they may have their employment contracts terminated, their lands and shops expropriated and be denied government health and education services.
On the other hand, the indigenous and tribal people of Assam were fed-up with what they considered their growing marginalisation. Unchecked in-migration continued despite the Assam Accord of 1985, an enactment intended to curb in-migration. They were furious at the central government proposed CAB which would regularise millions of migrants.Fortunately, leading members of both communities displayed extraordinary statesmanship. The highlight was an exchange with some tribal leaders who when asked if they would press for deportation of those declared “foreigners,” answered off the record that they would not take such an extreme stand. Rather they stressed that the burden of in-migration ought not be on Assam alone.
Civil society was categorical in the view that governments had betrayed them by not implementing the Assam Accord and demanded effective protection of the rights of indigenous people including prohibition of land transfers. They had become a rapidly shrinking minority in their own land. The proposal to enact the CAB was the last straw. Justifiably strident and angry speeches made by indigenous and tribal leaders were met with sedition cases and threats of arrests. But the Union could do well not to test their patience. The people of Assam are not likely to take things lying down.
The Indian government’s racially charged initiative to establish and NRC and deport 4 million residents of Assam leaves India vulnerable to a charge of ethnic cleansing, one of the most grievous of international crimes. There are 12 million stateless persons in the world today. India has now added 4 million to the list. That these people have lived in Assam for decades, have had their children born in Assam, are employed there and are integrated into the local community makes the Indian case stand out on the international stage for its sheer inhumanity.
Article 15 of the Universal Declaration of Human Rights affirms that everyone has a right to a nationality. The United Nations Convention on the Reduction of Statelessness, 1961 creates an international obligation to prevent statelessness and prohibit the withdrawal of nationality in situations where persons would be left stateless.
The judiciary which could have played an important role in restraining government added fuel to the fire. It is one thing to direct measures to be taken to prevent illegal migration, it is quite another to propose forced deportations. It is perfectly lawful for the state to identify and evict subversives within a migrant population, but it is not permissible to collectively punish millions of poor migrants. Thus state action must be directed to sealing the borders and regularising those who have resided in India for decades as has been done by the Supreme Court in the Chakma case.
The Supreme Court set a stridently irrational tone in Sonowal’s case, characterising the migration of poor Bangladeshis as an ‘invidious demographic invasion…aggression of the worst order…turning districts into Muslim majority regions…’ and irrationally anticipated that ‘it will only be a matter of time when demand for a merger with Bangladesh will be made’.The Court went on to predict ‘loss of lower Assam will sever the entire land mass of the North East from the rest of India and the rich natural resources of that region will be lost to the nation’.
Taking a cue from the Supreme Court, the Guwahati High Court issued an order to detain suspected foreigners in detention camps that were worse than prisons, even before the Tribunals declared Indian citizens on the electoral rolls as foreigners. The Supreme Court in its 2014 order in the Mahasangha casenoted with approval that ‘for the purpose of detection of illegal migrants 500 police units will be activated in the state within one month’.
The NRC process was downright disgraceful and bereft of the rule of law. The panel heard heart wrenching testimonies of people who had their citizenship stripped away in the most arbitrary manner.To prove citizenship the burden of proof was shifted by unconstitutional legislation to the migrant. The State could arbitrarily pick up members of the minority community, accuse them of being foreigners, and then pack them off to the Foreigners Tribunals to prove their innocence. The presumption of innocence was done away with. Then the migrants were required to produce documents that would show their presence in the State prior to 1971. This was an onerous condition in a state where floods take away all records and the poor, in any case, find documentation impossible to harness. History will condemn this exercise as ethnic cleansing, pure and simple.
The Foreigners Tribunals were required by law to have judicial members. Tribunals without judicial members are unheard of. Judgments of the Supreme Court in Jain, Chandra Kumar case and Madras Bar Association, held that Tribunals without judicial members were destructive of independence of the judiciary. And yet the Foreigners Tribunals flourish with an ever-increasing number of non-judicial members. Their appointments depend on theadvocate’s closeness to the political powers that be. Their tenure extensions depends on the number of persons they have declared foreigners. Their understanding of the law is sometimes so poor that persons declared Indian citizens are tried again, until a tribunal finally declares the person to be a foreigner. The legal principle of res judicata, we are told, does not apply.
The judiciary should have kept its distance from this great communal exercise that can only bring India shame at the international level.
The writer is a senior advocate, Supreme Court of India, and founder director of Human Rights Law Network