GS2&3:  Government policies and interventions for development in various sectors and issues arising out of their design and implementation & Challenges to internal security

 

What is the issue?

  • Upon the orders of the Gauhati High Court, Mohammad Sanaullah was recently released on bail from a detention camp in Assam.

BACKGROUND

  • According to the Assam Accord, individuals who entered Assam after March 24, 1971 are illegal immigrants.
  • There are two parallel processes to establish citizenship:
  • These two processes are nominally and formally independent. But in practice, these two systems influence each other.
  • People, who have been declared as foreigners by the Foreigners Tribunals, and even their families, were dropped from the draft NRC.
  • Mohammad Sanaullahhad been detained few days back after a Foreigners Tribunal had declared him an illegal immigrant.
  • It was learnt that Mr. Sanaullah had served for three decades in the Indian Army.
  • Following this, after a week of sustained public pressure, the Gauhati High Court’s bail order has come.
  • The register is meant to be a list of Indian citizens living in Assam. It was first compiled in 1951, after the Census completed that year, a crude, approximate document with several irregularities in it.
  • One of the stated aims of the updating exercise is to identify so-called “illegal immigrants” in the state.
  • As per Assam accord, those who entered on or after March 25, 1971, the eve of the Bangladesh War, would be declared foreigners and deported.
  • The National Register of Citizens now takes its definition of illegal immigrants from the Assam Accord – anyone who cannot prove that they or their ancestors entered the country before the midnight of March 24, 1971, would be declared a foreigner and, presumably, face deportation.

DISCUSSION

Issues with the procedural

  • In the intervening period of Sanaullah’s release, a shocking number of irregularities surfaced.
  • In its inquiry report, the Assam border police had written that Mr. Sanaullah was a ‘labourer’.
  • The three men who signed the case report claimed that the investigating officer had fabricated their signatures.
  • The investigating officer himself admitted that it might have been an “administrative mix-up”.
  • Yet, it was on the basis of such disputable material that the Foreigners Tribunal concluded that Mr. Sanaullah was a “foreigner”and sent him off to a detention camp.
  • [The Foreigners Tribunal is a quasi-judicial body expected to follow the rule of law.]

Real issue behind

  • Investigative journalists have revealed over the last few years that ‘administrative errors’ of this kind are the rule rather than the exception.
  • Sometimes, such disputable materials lead to people being detained for 10 years or more.
  • For these individuals, without the benefit of media scrutiny, there may be no bail; in other words, an endless detention.
  • In most cases, the legally mandated initial inquiry before an individual is brought before a tribunal as a suspected “foreigner” does not happen; it did not happen for Mr. Sanaullah.
  • Foreigners Tribunalsthemselves are only constrained by a very limited number of procedural safeguards.
  • This has led to situations where Tribunals have issued notices to entire families, instead of just the suspected “foreigner”.
  • Additionally, reports show that Foreigners Tribunals habitually declare individuals to be “foreigners” on the basis of clerical errors in documents.
  • These may include as small things as a spelling mistake, an inconsistency in age, and so on.
  • The hardest hit by such irregularities are the vulnerable and the marginalised, who have limited documentation at the best of time.
  • They are rarely in a position to correct errors across documents.
  • On occasion, orders determining citizenship have been passed by tribunals without even assigning reasons, a basic element of the rule of law.
  • In addition, a substantial number of individuals are sent to detention camps without being heard.
  • In detention centres families are separated, and people are not allowed to move beyond narrow confined spaces for years on end.
  • Driven by the Supreme Court, the NRC process has been defined by sealed covers and opaque proceedings.
  • The Supreme Court developed a new method of ascertaining citizenship known as the “family tree method”.
  • This method was not debated or scrutinised publicly, and it is found that people from the hinterland were unaware of the method.
  • Also, those who were aware had particular difficulties in putting together “family trees” of the kind that were required; the burden fell disproportionately upon women.
  • Recently, a process allowed for individuals to file “objections” against people whose names had appeared in the draft NRC.
  • On the basis of this, such people would be forced to once again prove their citizenship.
  • This had resulted in thousands of indiscriminate objections being filed, on a seemingly random basis, causing significant hardship and trauma to countless individuals.
  • The bi-annual talks between the Border Security Force (BSF) and Border Guards Bangladesh have not flagged the issue of undocumented migration from across the border beyond the angle of narcotics and cattle smuggling.
  • Possible solution will lead to a diplomatic crisis, not just with Bangladesh, but with other nations too. It also questions India’s moral authority on the international arena.

Fate of non-citizens in future

  • In 2014, the Supreme Court had asked the Central government to enter into necessary discussions with the government of Bangladesh to streamline the process of deporting illegal Bangladeshi immigrants.
  • Although India and Bangladesh entered into an extradition treaty during the UPA II regime in 2013, the expulsion of undocumented immigrants from Bangladesh allegedly residing in Assam, a sensitive issue.
  • Those deemed to be foreigners are transferred to detention centres. Till date, there are six across Assam, carved out of local prisons.
  • There is no repatriation treaty under which they can be deported to Bangladesh.

What is the significance of Sanuallah’s case?

  • Citizenship issues are very elemental and important demanding careful implementation and necessary procedural safeguards.
  • This is especially true as the consequences of being declared a non-citizen are grave.
  • These may include disenfranchisement, exclusion from public services, incarceration in detention camps, statelessness, and deportation.
  • Ensuring rule of law in such cases is of utmost importance.
  • Given this, Mr. Sanuallah’s case has brought the citizenship issue in Assam to the centre stage.
  • It can prompt some urgent national introspection about a situation in which thousands of people languish in detention camps for years.
  • It must serve as an urgent call for rethinking the National Register of Citizens.

Role of Judiciary

  • In a process with such flaws, and where the consequences are so drastic, judiciary intervention is crucial.
  • It is expected to fulfil its role of being the guardian of fundamental rights and the guarantor of the rule of law.
  • In cases where the cost of error is so high, the supreme court should realize that it is not “speed” that matters, but the protection of rights.

Way forward

  • The Assamese would like to protect their ancestral land, culture and identity, as well as a political majority in the state.
  • Those who do not make it to the final list will have to fight cases in the Foreigners’ Tribunals of Assam.
  • India needs to find a way out to the issue keeping in mind the human rights dimensions.
  • Some experts and political scientists suggest issuing work permits to those who are proved non-citizens as a solution to the problem.
  • The Assam Accord provides for granting citizenship to ‘foreigners’ through naturalisation. As per its Clause 5(4), names of foreigners so detected will be deleted from the electoral rolls in force.
  • Section 3 of the Citizenship Act as originally enacted in 1950 defined citizenship by birth by saying that all persons born in India automatically become Indian citizens (whatever be the nationality of his/her parents).
  • Hence, even if both parents were foreigners, the person became an Indian citizen if born in India.
  • Many of the migrants lost their valid documents in natural calamities such as flood and landslides. Hence some form of amnesty should be given to the genuine cases.
  • Even though it is a security problem, the humanitarian angle should not be forgotten for the mere political convenience.
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