The office memorandum, issued by the Home and Political Department of Assam, emphasised the need to enhance border security, citing the detection of illegal immigrants as a critical national security issue. According to the memo, 54 individuals have been identified as illegal immigrants since January, with 45 of them deported to their country of origin. The notice stressed the absence of non-Indian origin residents in Assam’s upper and northern districts, framing the detection and removal of such individuals as essential to protecting national interests.

The said memorandum was shared on social media by CM Sarma, along with the caption that “We are intensifying efforts to remove illegal immigrants from Assam. The State Government is initiating a series of coordinated actions that include enhanced surveillance, closer coordination with central agencies, additional deployment of force among others.”

The post may be accessed here:

We are intensifying efforts to remove illegal immigrants from Assam. The State Government is initiating a series of coordinated actions that include enhanced surveillance, closer coordination with central agencies, additional deployment of force among others. @HMOIndia pic.twitter.com/DozR1GwTqJ

— Himanta Biswa Sarma (@himantabiswa) September 7, 2024

Details of the memorandum:

The memorandum lists a total of eleven ways in which the state government plans to detect illegal immigration across the borders, which include increase in border surveillance and patrolling, coordination with Border Security Agencies, and regular intelligence gatherings to find ways to deploy more trained personnel. The memorandum also refers to making efforts to increase community engagement and awareness and taking timely legal action.

Furthermore, the memorandum states that it will strengthen border outposts to identify suspicious individuals lacking valid identification as well as activate village/field-level government functionaries to gather information on new and unknown person of suspected nationality.

It is essential to point out here that the Supreme Court has repeatedly criticised the Assam government for its arbitrary, and often discriminatory practices, in accusing individuals of being foreigners and subjecting them to the arduous process of proving their citizenship. In a significant judgment of July 11, 2024, the bench of Justices Vikram Nath and Ahsanuddin Amanullah had observed that authorities cannot randomly accuse people of being foreigners and initiate investigation into a person’s nationality without there being some material basis or information to sustain the suspicion.

In its order, the bench had expressed dismay at the casual manner in which the authorities had initiated proceedings on mere suspicion without any material.

“The question is that does Section 9 of the Act empower the Executive to pick a person at random, knock at his/her/their door, tell him/her/they/them ‘We suspect you of being a foreigner.’, and then rest easy basis Section 9? Let us contextualise this to the facts at hand.” (Para 34)

The bench had then proceeded to emphasise upon the requirement for the authorities to have material or information for suspecting a person to be a foreigner.

“First, it is for the authorities concerned to have in their knowledge or possession, some material basis or information to suspect that a person is a foreigner and not an Indian.” (Para 35)

This judicial rebuke underscores the state’s failure to implement a transparent, fair, and consistent mechanism, fuelling communal tensions and exacerbating the hardships faced by vulnerable populations. These arbitrary practices that have been adopted by the Assam government have disproportionately targeted marginalised communities, especially Bengali speaking Muslims, who are forced to navigate an opaque and hostile legal system. In many of the case, suspected individuals, despite being lifelong residents of India, are accused of illegal immigration with little or no substantial evidence. The process to defend one’s citizenship often involves costly and lengthy legal battles, which have driven many into despair and financial ruin. India’s Constitutional Courts have time and again condemned the state’s actions as a violation of basic human rights, noting that the Foreigners Tribunals have rendered unjust decisions, later overturned by higher courts, further highlighting the flaws in Assam’s approach to immigration and nationality. With the issue of the said memorandum, there is a potential of an increase in the number of people being arbitrarily suspected.

Surveillance intensified

Other than this, the present memorandum also mentions methods such as capturing of biometrics and Aadhaar numbers of suspected individuals, along with recording the numbers of their PAN card, Voter ID or passport, if any are possessed. The confiscation or denial of Aadhaar cards and other identification documents like PAN cards, Voter IDs, or passports from individuals suspected of being foreigners is a deeply problematic practice that violates their fundamental rights. Aadhaar, while not officially linked to citizenship, is essential for accessing basic services such as healthcare, education, and welfare schemes. By depriving individuals of these documents, the government is effectively stripping them of their ability to function in society, pushing them further into marginalisation. This practice not only criminalises people based on suspicion but also precludes them from defending themselves adequately, as they are deprived of the necessary identification to access legal and social protections. Moreover, such actions perpetuate a cycle of bureaucratic exclusion, where the burden of proving citizenship becomes increasingly difficult without access to essential documents, making the system even more unjust for those falsely accused.

Discrimination in issuance of Aadhar cards?

It is crucial to point out here that on September 7, Assam Chief Minister Himanta Biswa Sarma had also announced that the state of Assam will be introducing “certain safety measures on the process of allotment of Aadhaar cards.” According to Sarma, this step is in response to the “worrying” data that the state government plans to implement stricter Aadhaar application requirements starting October 1, 2024. Applicants will now be required to provide their National Register of Citizens (NRC) application number, irrespective of whether their name appears in the final NRC list (of exclusions) or not. The much criticised NRC process that resulted in the exclusions of a final 19,00,000 (19 lakh) persons on August 31, 2024 has, shockingly, five years after that date still not provided those excluded for the rationale or grounds of their inclusion in the excluded list! While the state’s failure to provide this basic information, five years down remains a violation of fundamental principles of natural justice, the same state persists in further disenfranchising its own citizens.

The announcement of these new requirements has brought forth concerns of a deepening of crisis for marginalised sections and re-opening, by a backdoor of the NRC process. Put together, this could create significant challenges for Assam’s residents. The NRC process in Assam has already faced criticism for its lack of transparency and its impact on vulnerable populations, especially the Bengali speaking Muslims, Santhals, Bnegali Namosudras etc. Adding the requirement for NRC application numbers to the Aadhaar process introduces an illegality and additional bureaucratic hurdles. More people of Assam will now not have easy access to Aadhaar cards, needed to access government schemes, school admissions, and open bank accounts. This is heaping further obstacles on a people facing long-standing legal and bureaucratic battles over their citizenship status, requiring them to now navigate a more complex system to access basic services. (Detailed report on the same can be read here.)

The notice also outlined a plan to strengthen border surveillance by enhancing coordination with the Border Security Force and other central agencies, bolstering intelligence-gathering capabilities, and enforcing provisions of the Citizenship Amendment Act (CAA).

The complete memorandum can be accessed here:

A volatile crisis fuelled by government overreach and communal rhetoric?

A potentially volatile situation appears to be brewing in Assam, driven by the state government’s aggressive and arbitrary actions toward “suspected illegal immigrants”, a misnomer that fuels hysteria that then becomes a ground for targeting the Bengali-speaking Muslim community. Despite numerous rulings from the High Court and Supreme Court overturning Tribunal decisions, the Assam government continues to push a hard-line approach. A striking example is the case of Rahim Ali, who was declared a foreigner by a tribunal but posthumously had his citizenship restored by the Supreme Court two years after his death. His legal battle had lasted for a total of 12 years. (Report can be accessed here.) This highlights the inherent flaws in the Foreigners Tribunal process, which often renders unjust verdicts, only to be corrected by higher courts after causing irreparable harm.

These steps come in the shadow of early September, when the visuals of heartache and separation filled the air as the Assam police bus had separated 28 families in Assam, carrying one member from each family while their kin had helplessly stood on the road. On September 2, in Assam’s Barpeta district, 28 individuals—19 men and 9 women—were torn from their homes, ripped from the embrace of their families, and labelled “declared foreigners.”  These individuals, all from the Bengali Muslim community, were summoned to the Superintendent of Police’s office under the pretence of signing documents on Monday. Instead, they were placed onto a bus bound for the infamous Matia transit camp in Goalpara district, 50 km away. (Detailed report can be read here). This underscores the government’s persistent disregard for due process.

The aforementioned memorandum issued by the Assam government escalates the situation further by instructing authorities to collect biometric data, Aadhaar numbers, PAN cards, and other identification documents from those suspected of being foreigners. This directive is just similar to controversial 2019 National Register of Citizens (NRC) process, during which the biometrics of 27 lakh individuals were captured and frozen for five years. Many of these individuals were deprived of essential services as their Aadhaar cards were blocked, despite their inclusion in the final NRC draft. It took prolonged legal battles, led by organisations like Citizens for Justice and Peace (CJP) with their and individuals such as Sushmita Dev, to have the locked biometric data released. The current memorandum threatens to repeat this exclusionary tactic, leaving vulnerable communities in a state of constant fear and uncertainty.

It is essential to note that on August 28, 2024 after a protracted wait of five years, the Assam government announced that 9,35,682 people in the state would finally receive their long-delayed Aadhaar cards. Assam Chief Minister Himanta Biswa Sarma had, in a press conference, revealed that the central government had instructed the Unique Identification Authority of India (UIDAI) to issue Aadhaar cards to the 9,35,682 people who had submitted their biometrics between February 2019 and August 2024. However, the decision to unblock the Aadhaar cards for only a fraction of these individuals—just over 9 lakhs—raises pressing concerns about the fate of the remaining 18,07,714 people who are still waiting for resolution. No information was provided about the criteria used to select these individuals, nor was there any transparency about the remaining 18,07,714 people who continue to be denied this essential identification document. (More details can be read here.) 

Further fuelling this tension in Assam are the inflammatory remarks made by Assam’s Chief Minister Sarma, and the ruling BJP, which have stoked Islamophobia and deepened communal divisions. Sarma’s repeated targeting of the “Miya Muslim” community has created an atmosphere of suspicion and hatred, exacerbating fears of religious discrimination. His statements, both in political rallies and within the Assam Assembly, have amplified communal polarisation and drawn widespread criticism for promoting hate speech. With a toxic mix of government overreach, flawed legal processes, and divisive rhetoric, Assam is teetering on the edge of a crisis, and unless these issues are addressed, the situation could quickly spiral out of control.

Related:

Supreme Court seeks Assam government’s response on plan to deport over 200 declared foreigners detained in transit camp

Families torn asunder: 28 Bengali Muslims taken from homes, detained as “Declared Foreigners” in Assam

Assam CM call to expel ‘Miya Muslims,’ leads to violence against Bengali speaking Muslim Labourers

Assam: Partial relief, over 9 lakh people to get Aadhaar card, serious questions for excluded 18 lakh

Assam CM compares districts of Assam with Bangladesh; calls some of the districts ‘tiny Bangladesh’

Vindicated: Sher Ali and Jamila Khatun’s Triumph over False Accusations of Foreigners, get declared Indian by Foreigners Tribunal

The post Assam government’s efforts to intensify crackdown on “Suspected/Declared Foreigners” sparks fears of brute targeting & rights denials appeared first on SabrangIndia.

Since 2019, a staggering 27,43,396 individuals have had their Aadhaar cards blocked, plunging them into a state of bureaucratic limbo and depriving them of access to essential services. The recent decision to unblock the Aadhaar cards for only a fraction of these individuals—just over 9 lakh—raises pressing concerns about the fate of the remaining 18,07,714 people who are still waiting for resolution.

Assam Chief Minister Himanta Biswa Sarma, in a recent press conference, revealed that the central government had instructed the Unique Identification Authority of India (UIDAI) to issue Aadhaar cards to the 9,35,682 people who had submitted their biometrics between February 2019 and August 2024. However, no information was provided about the criteria used to select these individuals, nor was there any transparency about the remaining 18,07,714 people who continue to be denied this essential identification document.

“They agreed that NRC and Aadhaar do not have any direct connection and if this stream of people have access to Aadhaar cards, they will not have any objection. We had been in touch with the central government for the past two years and on July 29 last, the Centre advised us to formally take up the matter with it. We submitted a proposal and the Centre took the advice of the Solicitor General based on our letter. Yesterday, the Centre directed UIDAI to issue the Aadhaar cards,” Sarma stated.

He further provided that that the applicants would be able to collect their Aadhaar cards from the centres where they had applied for the same.

“A long-standing issue has been resolved as the Centre removed the barrier. I had raised the matter before the Union home minister (Amit Shah). He could understand the problem. I thank him on behalf of the state government,” Sarma further mentioned.

The lack of clarity on this whole decision and process extends further. CM Sarma himself admitted that the blocking of biometrics had no correlation with the National Register of Citizens (NRC), yet these individuals were still denied their Aadhaar cards.

“We checked and found that the blocking of biometrics had no correlation between NRC and Aadhaar. They blocked the biometrics of everyone who applied for Aadhaar cards from February 2019 to August 2019. These are people from across communities. The Aadhaar cards of even those, who made it to NRC, were blocked,” said Sarma at the conference.

Assam CM took to X (formerly Twitter) to state that “Close to 10 lakh people from Assam, who applied for Aadhaar during a certain period had their ‘Biometric Locked’ for 5 years and had to suffer due to it. Fulfilling a key election promise, we took up this issue with the Union Government, and it’s heartening that they have decided to unlock the biometric of all the affected people, bringing in much needed relief to them.”

Close to 10 lakh people from Assam, who applied for Aadhar during a certain period had their ‘Biometric Locked’ for 5 years and had to suffer due to it.

Fulfilling a key election promise, we took up this issue with the Union Government, and it’s heartening that they have decided… pic.twitter.com/lUUvcMI6L1

— Himanta Biswa Sarma (@himantabiswa) August 28, 2024

Ranoj Pegu, Cabinet Minister for higher education, school education, tribal affairs with the government of Assam also took to X to appreciate the efforts of the CM and the government of India, by writing “A heartfelt thanks to Union Home Minister Amit Shah ji and Hon’ble CM of Assam Himanta Biswa for addressing the issue of Aadhaar card issuance for 9,35,682 individuals in Assam which were kept blocked since 2019. This crucial step will significantly benefit those affected. Grateful for your unwavering support in resolving this matter.”

A heartfelt thanks to Union Home Minister @AmitShah ji and Hon’ble CM of Assam @himantabiswa for addressing the issue of Aadhaar card issuance for 9,35,682 individuals in Assam which were kept blocked since 2019. This crucial step will significantly benefit those affected.… pic.twitter.com/VlHW8PiESg

— Ranoj Pegu (@ranojpeguassam) August 28, 2024

However, the government has yet to explain why these 9,35,682 individuals were selected for relief, while the vast majority remain excluded from essential government schemes and benefits due to the lack of Aadhaar. This raises the question: What crime did the remaining individuals commit to justify such treatment?

The selective blocking as well as the unblocking process has left a majority of the affected individuals without any clarity or assurance regarding their future. For years, these people have been denied their fundamental rights, including access to government benefits, ration cards, scholarships, and other essential services that require Aadhaar verification. The Assam government’s announcement, rather than providing relief, has highlighted the continued plight of these individuals, who are still in the dark about when, or if ever, they will ever receive their Aadhaar cards.

The situation is even more troubling when considering the broader political context. CM Sarma has been known for making communal and religiously divisive statements, particularly against the Muslim population of Assam. (See here, here, here and here) The selective unblocking of Aadhaar cards raises serious concerns about the potential influence of religious and communal biases in the decision-making process. The government’s failure to provide a transparent and fair process for all affected individuals highlights the ongoing issue of over 18 lakh Aadhaar cards remaining blocked, suggesting that these actions may be deeply entangled in the political and communal rhetoric that has increasingly defined the state’s governance.

The people of Assam, particularly those still deprived of their Aadhaar cards, deserve answers. They have been left without access to essential services, ration cards, scholarships, and other government facilities for years. The government’s silence on the matter only adds to the uncertainty and anxiety faced by these individuals. It is crucial that the state and central governments provide a clear, transparent, and inclusive solution that addresses the needs of all 27,43,396 affected individuals, not just a selected few.

 CJP’s petition in the Gauhati High Court and the issues unravelled:

Brief about the Petition: CJP’s team in Assam has been deeply involved in offering paralegal and legal assistance to individuals excluded from the National Register of Citizens (NRC) in Assam. Their efforts involve extensive on-ground work, including responding to distress calls from remote areas daily. Through this work, the CJP team had observed that the state government had not made sufficient efforts to provide legal aid to those excluded from the NRC, despite directions from the Ministry of Home Affairs (MHA).

The said petition that had been filed by the organisation sought clarification on a press release issued by the MHA on August 20, 2019, which stated that legal assistance would be provided to those excluded from the NRC and in need of such aid. In early 2020, CJP, along with three families excluded from the NRC, petitioned the High Court on the issue. Senior counsel Mihir Desai, assisted by Advocate Mrinmoy Dutta, represented the petitioners. The petition was later withdrawn after the High Court suggested that it would be more appropriate as a public interest litigation (PIL).

From April to November 2020, CJP engaged in detailed correspondence with the National Legal Services Authority (NALSA) and the Assam State Legal Services Authority (ASLSA). Despite their efforts, CJP found no substantial action in line with the MHA’s 2019 communication. Consequently, CJP submitted a representation to the Home Department of Assam, urging them to establish a scheme and modalities for providing effective legal aid to those excluded from the NRC. CJP also requested information on the steps taken by the government to facilitate awareness among those in need.

The petition underscores that those excluded from the NRC cannot be deemed non-citizens until all legal remedies are exhausted. Without adequate legal aid, these marginalized individuals risk suffering irreparable harm. CJP’s petition calls for the state to develop effective and robust legal aid modalities, including the training of lawyers and the establishment of adequate front offices, given the numerous pending appeals before the Foreigners’ Tribunals by marginalized individuals seeking to prove their citizenship. The plea stresses that NRC-excluded individuals cannot be declared non-citizens until all available remedies are exhausted, and without adequate legal aid, these individuals risk severe harm.

CJP also expressed concerns about the short 120-day window for NRC-excluded individuals to file an appeal, arguing that there would not be enough funds for them to secure legal representation in such a limited time. Therefore, the plea calls for the ASLSA and NALSA to provide legal aid to these individuals.

Revelations of CJP’s survey on legal aid machinery: In response to the ASLSA’s communication in November 2020, which stated that they had sufficient machinery to handle any actions related to the NRC, CJP had conducted an independent survey in 10 districts of Assam to assess the preparedness of the District Legal Services Authorities (DSLA). The survey had revealed significant deficiencies: many front offices were either non-existent or inadequate in terms of space and staff. Moreover, personnel at these legal services authorities lacked training in critical areas such as citizenship laws, NRC procedures, immigration law, and the Foreigners Act—all essential for assisting those who must appeal before the Foreigners Tribunal to prove their citizenship. The survey also found that only 10 cases had been handled by DLSA counsel, all in Dhubri: 7 in 2019 and 3 in 2020.

Relief Sought through CJP’s petition: The petition requests the court to direct state authorities to appoint sufficient legal aid lawyers and provide them with manuals to ensure consistent legal assistance. It also seeks the formulation of modalities for legal aid specifically tailored to NRC-excluded individuals. Additionally, the petition prays that rejection slips should not be issued until adequate legal aid arrangements are in place. Through this petition, CJP aims to ensure that state machinery is prepared to assist marginalized individuals among the 19-lakh excluded from the NRC, so that no rightful citizen is deprived of their citizenship due to a lack of proper legal aid.

The petition also presents several suggestions for the court’s consideration:

• Establish Taluk-level Legal Services Authorities across all taluks.
• Invite applications for legal aid at least three months before rejection slips are issued.
• Based on these applications, enhance front offices, empanel lawyers and paralegals, and train them in citizenship laws, the Foreigners Act, and NRC procedures.
• Set up monitoring committees for each taluk.
• Organize legal aid camps to scrutinize documents.
• Draft model appeal formats.
• Appoint senior counsel with more than 15 years of experience to guide conducting advocates.
• Enable civil rights organizations like CJP to conduct training sessions.

Court Proceedings and Orders: during the proceeding, in February 2022, the ASLSA had filed an affidavit before the Gauhati High Court, wherein it had stated that in most of the districts of Assam, the DLSAs had formed a separate legal aid panel for providing legal aid for those in need. Those DLSAs that do not have such a separate panel, are providing aid from the already existing panel. However, through the affidavit, the Authority had also admitted that since a large population of over 19 lakh persons is left out of the NRC, it needs considerable financial resources and that the state government needs to revisit the budget allocation to enable it to provide the requisite legal aid; which means the Authority is falling short of financial resources.

On March 26, 2022, during a Maharashtra State Level Conference, the then Justice (retd. CJI) UU Lalit, who was also the then Executive Chairman of NALSA, had emphasized the importance of providing quality free legal aid services. He stated, “Free legal aid does not mean poor legal aid; free legal aid must mean quality service.” He expressed concern over the low percentage of cases handled by the Legal Services Authority and stressed the need for talented and committed personnel in the legal aid system.

In its order dated November 23, 2022, the Gauhati High Court directed the Centre and the Assam State Government to clarify their stance on funding for legal aid. Previously, on February 1, 2022, the ASLSA filed an affidavit acknowledging its efforts to train staff in citizenship matters but admitted that financial constraints hindered their ability to provide adequate legal aid to the large population excluded from the NRC. This admission had underscored the need for the Assam state government to reassess its budget allocation to ensure sufficient legal aid resources.

The PIL remains pending in the Gauhati High Court.

(Further details about the CJP petition in Gauhati HC may be read here, here and here.)

Related:

Assam CM compares districts of Assam with Bangladesh; calls some of the districts ‘tiny Bangladesh’

12-year legal battle for identity: Rahim Ali’s posthumous victory in Assam’s citizenship tribunal

SC highlights deplorable conditions in Matia detention Centre of Assam, calls it a “sorry state of affairs”

The post Assam: Partial relief, over 9 lakh people to get Aadhaar card, serious questions for excluded 18 lakh appeared first on SabrangIndia.

Their struggles began when the Agomani Border Branch police served them a notice from the 10th Foreigners Tribunal of Dhubri. Mazam is a disabled and elderly man and was unable to work as he used to and his wife Saleya who constantly worried for their family, found their peace and livelihood under threat. The family of seven faced yet another major hardship added to their existing troubles.

Mazam’s father’s name was Bhuttu Sk and he was a government employee and a permanent resident of Ramraikuti village, which falls under the Agomani police station near the India-Bangladesh border. Bhuttu’s name was recorded in the 1951 NRC, and he even voted in the 1966 elections and continued to do so until his death. Mazam himself has been a voter in the Golokganj Assembly Constituency since his name was first put in the voting list.

His wife Saleya was born and raised in Jhaskal village, also under the Agomani police station. Her parents were permanent residents of Assam, and their names appeared in the 1966 voter list. Saleya married Mazam and their names were recorded in the 1985 voter list. Later she was married to Mazam Ali from a nearby village and their name was also recorded in the 1985 voter list.

Despite their parents documented voting history in their village Mazam and Saleya were arbitrarily labelled as ‘illegal foreigners’ and the couple also states that the authorities did not follow any due process when issuing the notice. The Reference Authority has on the other hand claimed that that an inquiry was conducted and the couple failed to provide sufficient documents to support their identity, which is why the case was referred to a tribunal. However, Mazam and Saleya denied any such visit or inquiry, telling CJP, “No one had visited or met us related to this issue.”

Mazam Ali has a hearing impairment and Saleya Bibi’s health is crushed by the stress and uncertainty of the entire process. Team CJP helped the couple in every step and motivated them to fight for justice. The team’s state in charge, Nanda Ghosh says after this success, “Our frequent interaction and sharing their life has made us one of them, like we part of their family.” In fact, on the day that the team handed over the judgement copy Saleya asked, “Who will I share things with now? Will you even come again?’

 
CJP Team with Saleya Bibi and Mazam Ali outside their home

The long battle for justice concluded with CJP’s state in charge Nanda Ghosh, Dhubri DVM Habibul Bepari, Dhubri District legal team member Advocate Ishkendar Azad, and Asikul Hussain arrive at the couple’s home to deliver the happy news and judgement copies in the last week of June, 2024.

The CJP team visits the couple to deliver the order

 The case was a challenging case, especially for getting documents. Mazam, who attended a school that relocated multiple times, had no documents from his school days. Saleya too who never attended school due to poverty and marrying at an early age, found it difficult to get documentation. However, the couple and the team’s strength and perseverance helped them succeed.

A long battle for justice came to end, but for CJP the battle continues. The process of documentation and finding certificates between parents and children that can prove one’s citizenship is always a tough challenge for team CJP.

CJP’s work has been a beacon of hope for many in Assam and the team has been tirelessly working to safeguard the rights of marginalised communities. Their efforts have led to the release of over 51 people who were wrongfully detained under suspicion of being illegal immigrants. From giving legal assistance, documents support, and counselling to those entangled in the complex and often unjust processes, the team goes above and beyond to help people on ground.

The orders may be read here:

Related:

Victory! One more Indian gets their citizenship back with the help of CJP!

CJP Assam: Standing strong come hail, come storm

 Frequently Asked Questions: Understanding the Citizenship Crisis in Assam

From Fear to Freedom: Sader & Molina’s Citizenship Journey in Assam

The post Another elderly couple rejoice as their citizenship is restored with CJP’s help appeared first on SabrangIndia.

Brief Background of the Case:

On November 22, 2019, Maya Rani Barman “the petitioner” was declared a foreigner under the Foreigner Act, 1946 by the Foreigners Tribunal, Lakhimpur (Assam).

The petitioner claimed that she is an Indian citizen by birth and born and brought up in the of village Gopalpur, District-Cooch Behar, West Bengal and studied up to Class-V at Gopalpur High School and as per her School Certificate, her date of birth is 15th of April 1961. She got married to one Bishnu Barman, son of late Shiben Chandra Barman of Harmoti Gaon, District-Lakhimpur.

However, a case was registered against the petitioner bearing Case No. 4057/2011 (District No. 23/1997) by the Foreigners Tribunal No. 1st, Lakhimpur, North Lakhimpur upon a reference was made by the Superintendent of Police (Border), Lakhimpur (Assam).

The Petitioner appeared before the Tribunal and contested the case by filling her written Statement, adduced her evidence in chief along with relevant and supported documents to prove her nationality. But, the Tribunal did not consider the documents that she relied on.

On November 22, 2019, the Foreigners Tribunal at Lakhimpur passed the impugned final order/opinion order. The petitioner claimed that the tribunal passed the impugned order arbitrarily without appreciating the evidence, declared her to be a foreigner who had illegally entered into the territory of India (Assam) from the specified territory of Bangladesh after 25.03.1971.

Petitioner moved the High Court for relief:

On January 1, 2023, Maya Rani (the petitioner) aggrieved and dissatisfied with the impugned decision of the Foreigners Tribunal dated 22.11.2019 passed by the Member, Foreigners Tribunal No. 1^st, Lakhimpur (Assam) filed a petition bearing Writ Petition  (Civil) No. 154/2023 before the Gauhati High Court under Article 226 of the Indian Constitution.

The petitioner’s counsel submitted that the petitioner has exhibited the Voter Identity Card issued in her name along with the School Transfer to prove her linkage with her father. Further added that, though the petitioner annexed a photo copy of a Ration Card and an affidavit sworn by her mother etc. but inadvertently those certificates were not exhibited by her. It is submitted by Mr. Biswas that the petitioner produced the School Transfer Certificate to prove her linkage with her father Lt. Monteswar Ray, stating further that father of the proceedee had purchased a parcel of land in the year 1960, but, due to flood the Sale Deed of the said land got damaged and therefore, the petitioner could not produce the original copy of said Sale Deed before the Tribunal.

The counsel for petitioner further submits that the documents so provided by the petitioner was sufficient to prove herself to be the Citizen of India. however, the Tribunal without considering the documents which were relied by the petitioner/proceedee, passed the impugned Final Order dated 22.11.2019 arbitrarily and declared her as a foreigner of post 1971 stream, which is liable to be set aside and quashed.

On the other side, Standing Counsel for Home department Assam was submitted that the petitioner could not produce any document to establish herself to be the daughter of her projected father, one Lt. Monteswar Ray who is claimed to be the Citizen of India by the petitioner. The counsel added that o submitted that though the petitioner has submitted one School Transfer Certificate but she failed to prove the said certificate as well as its contents by producing any reliable evidence of the issuing authority. In that context, counsel relied on a decision of the Hon’ble Apex Court in the case of Life Insurance Corporation of India and Another Vs. Ram Pal Singh Bisen, reported in (2010) 4 SCC 491, wherein the Hon’ble Supreme Court laid down that “admission of a document in a Court may amount to admission of its contents but not its truth”.

Added that, Voter Identity Card along with other documents as produced by the petitioner in her Written Statement are not at all sufficient to prove herself to be the Citizen of India as claimed by her as she completely failed to prove any link with her projected father whom stated to be an Indian Citizen.

The Home Department, Assam submitted that the petitioner/proceedee failed to adduce reliable evidence exhibit requisite documents so as to prove her linkage with her projected father and grandparents and thereby the petitioner failed to discharge her burden under Section 9 of the Foreigners’ Act, 1946.

No relief granted to the Petitioner, High Court affirmed the decision of Tribunal:

On January 1, 2024, the division bench of Justice Manash Ranjan Pathak and Justice Mitali Thakuria observed that the petitioner claimed that her father Lt. Monteswar Ray was also an Indian Citizen, who purchased a land in India in the year 1960, but she could not produce the Sale Deed before the Tribunal as it was destroyed due to burning of the Record Room in the year 1974 and also failed to produce any documents like continuous/regular payment of land revenue for the said land before the Tribunal by exhibiting Land Revenue Paying Receipt on behalf of her projected father.

The bench further observed that before Tribunal the petitioner exhibited a Transfer Certificate issued in her name by Gopalpur High School, Gopalpur, Cooch Behar, West Bengal issued on 08.08.2015, but she could not adduce any evidence of the Headmaster of the said High School, i.e., its issuing authority or any authorised teacher and/or employee of the said High School to prove the contents of the said certificate exhibited by the petitioner, so as to prove herself to be the daughter of her projected father Lt. Monteswar Ray.

The Court added further that the petitioner did not produce any voter lists of the years 1965 or 1966 and 1971 to prove that her parents had cast vote in the years 1966 and/or 1971. We found that the petitioner not only failed to prove her linkage with her projected father Lt. Monteswar Ray but also failed to produce any documents to prove that her projected father was an Indian Citizen.

On the forgoing findings the division bench held that the Tribunal after due appreciation of the entire facts of the case and evidence adduced on behalf of the petitioner arrived at the impugned opinion/judgment dated 22.11.2019 which is without any illegality and perversity. We, therefore, are of the view that the impugned final order passed by the Foreigners’ Tribunal North Lakhimpur, Assam in Lakhimpur, holding the petitioner to be a foreigner under the Foreigners’ Act, 1946 who had illegally entered into the territory of India (Assam) from the specified territory of Bangladesh on or after 25.03.1971 does not call for any interference.

The judgement of High Court dated 11.01.2024 can be read here:

Petitioner moved Supreme Court against the impugned order of HC:

On April 19, 2024, aggrieved by the decision of the Gauhati High Court declaring the petitioner to be a foreigner, the petitioner filed an appeal before the Supreme Court.

The appeal said that it was ‘practically impossible’ for the woman to get the documents as she had shifted to Assam on account of her marriage, while originally belonging to Cooch Behar in West Bengal. “In course of her migration, it was not possible to keep track of those documents since her parents have already died,” the plea said.

Petitioner said that the documents establishing her link to her parents, both Indian citizens, have been destroyed in floods. Further, the High Court wrongly discarded her school-leaving certificate as proof of Indian residency and citizenship on grounds of the headmaster not having been cross-examined. 

“It is not possible for her to bring the Headmaster from West Bengal to Lakhimpur, Assam,” she said.

On May 17, 2024, the three judges’ bench of SC consisting Chief Justice of India, Justice J.B. Pardiwala and Justice Manoj Mishra have issued notice and sought response from the Union of India, Assam Government, Election Commission of India and NRC Coordinator Assam over the matter within three months.

”In the meantime, no coercive steps shall be taken against the petitioner on the basis of the impugned judgement and order dated 11 January 2024 of the Gauhati High Court in WP(C) No. 154 of 2023” the bench directed to the respondents.

The order of the Supreme Court dated 17.05.2024 can be read here:

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The topic of the convention was the deprivation of 27 lakhs people from being issued Aadhaar as well as the citizenship crisis in Assam. The convention saw authors, thinkers, advocates, activists, poets, trade union leaders speak at the convention. The presiding community included Dr. Mrinmoy Deb, Rafiq Ahmed, Subrata Nath, Mrinal Kanti Shome, Haider Hossain Chowdhury,  Nanda Ghosh,  Atarjan Begum Majumdar, Snigdha Nath, and Khadeja Begum.

Deliberations

Nowhere within the Aadhaar Act or the Citizenship Act (1955) is there any provision for the collection of biometric data or provisions prohibiting the issuance of the Aadhaar card to those in any way involved in enumeration in the ongoing National Register of Citizens (NRC) process. Additionally, the Supreme Court has not provided clear direction on this matter. However, despite this, during the claims and objection stage, the state government of Assam, in collaboration with the Aadhaar authority, has unilaterally, collected biometric data from approximately 27 lakh individuals and denied them Aadhaar cards!

This action is reportedly based on a Standard Operating Procedure (SOP).  While the SOP has also stipulated that Aadhaar cards would be issued directly to verify those whose names were included after the publication of the final NRC, however, despite it being four years since the publication of the final draft of the NRC, this provision has not been implemented! People who have been awaiting their Aadhaar card for five years are encountering insurmountable difficulties and experiencing harassment at the hands of authorities..

On August 11, 2022, the Aadhaar authority issued an office memorandum allowing those who were enrolled but had not received an Aadhaar card to use any identity card bearing their enrolment number as an alternative. This directive specifically benefited the 27 lakh affected people. However, despite this provision, various state and central government departments have been reluctant to accept these alternative identity cards.

These and related discussions at the Convention, held on Sunday, shed light on this  troubling trend where the Aadhaar has been deliberately withheld to cause hardship, particularly among economically disadvantaged people. This conclusion is bolstered by the inconsistent statements made by the Chief Minister of Assam, Himanto Biswa Sarma on different occasions. In a recent speech, for instance, he indicated that issuing of Aadhaar would only resume after the elections and following discussions with organisations such as the All Assam Students Union (AASU). This statement, without legal or moral basis, was strongly criticised at the meeting.

In this regard, the organisation Forum for Social Harmony has, last month, sent a public petition to the Prime Minister, Narendra Modi, Union Home Minister, Amit Shah, and Assam Chief Minister, Himanto Biswa Sarma to issue Aadhaar before the elections, with a detailed legal explanation. There was a strong sentiment reiterated at Sunday’s convention that the state government must and should arrange to issue the withheld Aadhaar before the elections.

In March, 2022 Citizens for Justice and peace (CJP) also filed a PIL before the Gauhati High Court with regards to people left out from getting Aadhar, even after being included in the NRC.  Relying on the Aadhar Act 2016, CJP has argued that the UDAI identification has no connection to citizenship at all. This petition has been heard several times and is pending in the Gauhati High Court.

In the context of the discussion on citizenship, it is clear that before 2003 there was no need to submit any documents while applying for citizenship and anyone could apply. In 2003, the Vajpayee government first defined illegal migrants and disqualified them from applying for citizenship. The statutory provision (section 14A) in Citizenship Act for preparation of NRC and the Rules were framed that year. Even the provision of citizenship by birth has been virtually abolished in India.

A speaker at the convention questioned the need for the CAA 2019, because, they argued, in 2015, two circulars were published and non-Muslims from three countries including Bangladesh were already proclaimed not to be illegal immigrants. So, now the question arises, why there is a need at all for a separate Citizenship Amendment Act for those who are exempt from the definition of illegal migrants? After four years of its passage, more complicated rules and procedures are made requiring documents that most do not have when they are seeking citizenship. So, again it becomes clear that the real objective is not to grant citizenship. The complicated procedure laid down in the recently enacted rules clearly shows that the union government is not simply asking an individual to not declare  himself as a foreigner but also asking for documentary proof of a person being a foreigner and only thereafter apply for citizenship.

Another of the speakers at the convention mentioned that it is clear from this that the far-reaching objective of the government is to change the relationship between the state and the citizens and convert stateless impoverished people into cheap labour through complicated legal procedures.

Similarly concerns were expressed over the pending appeal process of the NRC for more than four years after the final publication of NRC on August 31, 2019.  Furthermore, the convention had a unanimous consensus at the end that proposed all voters whose names are in the electoral roll of 2014 should be recognised as citizens and Aadhaar must be given to all. The slogan, ‘No Aadhaar, No Citizenship- So No Vote to BJP’, rang through at the convention.  The meeting also highlighted the demand for the implementation of Enrollment ID as an alternative to Aadhaar. The final course of action decided was for a mass campaign to take place after the upcoming elections.

Some of the speakers at the event included advocate  Shishir Dey, advocate  Subrata Paul, Kamal Chakraborty, Sanjeev Roy, Asit Roy, Joydeep Bhattacharya, Ripon Das, Arup Baishya, Atarjan Begum Majumdar, Rafique Ahmed, Subrata Nath, Hillol Bhattacharya, Haidar Hossain Chowdhury, Subrata Nath,  Haider Hossain Chowdhury,  Majumdar, Khadeja Begum, Nanda Ghosh and Dr. Mrinmay Deb.

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The post Assam: ‘No Aadhaar, No Citizenship, So No Vote to BJP’, said a Citizens Convention appeared first on SabrangIndia.

While the only legal way of linking the two databases is by acquiring informed consent from every resident through an exercise similar to the Census, which means through a public exercise conducted by the Registrar General of India (RGI), the process appears to have happened without any informed consent.

There is yet another angle or twist. In 2020, at the height of the nationwide agitation against the CAA-NPR-NRC, the union government had announced that the Census (now not conducted since 2011 and which was statutorily due in 2021) will also conduct the NPR simultaneously. There was an outcry of protest against this with several state governments calling for a boycott against answering those questions in the Census form that had to do with the NPR.

Four specific questions included in the NPR-NRC especially the one concerning parents’ places and dates of birth had been added. Pushed into a corner by several unaffiliated state governments, the Home Ministry was compelled to admit, that answering questions in the NPR is purely voluntary while under the Census Ac, 1948, there is a legal obligation to answer all questions put every ten years. The Census process is oral and conducted by designated officers of the RGI without any document that takes or asks for signatures. Census data collection, house-listing and household data collection is crucial for understanding demographics and formulation of policies.

In contrast, the enumeration for the NPR can only be conducted under the provisions of The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 which in fact go beyond the Section amended Section 14A of the Citizenship Act, 1955 (amended in 2004) and are therefore arguably ultra vires of the Act itself. Section 14A of the amended Citizenship Act, 1955 (amendment in 2004) states simply that the government “may compulsorily register every citizen as a citizen of India and issue a national identity card to him”. It is the Rules that ascribe the process of NPR enumeration not the Act. Both Section 14A and the Rules are currently under multiple challenges in the Supreme Court.

Given this background to the manner in which the union government has been reluctant to share information publicly, also given its doubtful credentials over data collection and maintenance of data integrity, 2023 brought another surprise.

The Annual Report 2021-22 of MHA declared that crucial personal data –that can only be collected through a rigorous door to door enumeration process by officials under the Registrar General of India (RGI) and which includes Name, Gender, Date and Place of Birth, Place of Residence, Father’s and Mother’s Name was (already) collected, albeit in secretive manner, by seeding Aadhar. Mobile and Ration Card. A series of RTIs has led us to conclude that the exercise was conducted without the informed consent of Indians. A further scrutiny of MHA Reports of 2010, 2015-2016 and 2020 raise more questions.

The scale of NPR-Aadhaar linkage

How many of the NPR updated records contain the details from the Aadhaar card and have the Aadhaar number?

While the 2020 NPR Manual mentions that Aadhaar numbers in the NPR booklet came from the 2015-2016 exercise of “updating the NPR”, the RGI is silent on this and repeated efforts under Right to Information Act (RTI) to the RGI have not helped clarify the exact scale of the linkage. The 2014-15 Annual Report of the Ministry of Home Affairs (MHA) says that the “data digitization process has been completed” and a database of “119.19 crore persons created.” The 2017-18 Annual Report of MHA contradicts this and says that, ” demographic data of 119.95 crore persons was collected in 2010 and has been updated during 2015- 16 in all States / UTs except Assam and Meghalaya”.

While there are several annual reports of MHA that give a count of the NPR records linked with Aadhaar numbers, those reports correspond to the period before the updating exercise of 2015-16. The Annual Report of 2014-15 states that NPR data of more than 23.51 crores persons has been set to UIDAI for duplication and generation of Aadhaar number, of which UIDAI generated 19.67 crores Aadhaar numbers, which is in turn a quarter of the 80.46 crore Aadhaar database generated by UIDAI.=

This number could only have grown after the 2015-16 exercise, which was intended to be a giant leap for the scale of linkage. The official records are clear that the leap did take place, but unclear on the scale or implications.

Is the NPR-Aadhaar linkage illegal?

The NPR database is distinct from the Aadhaar database. While the former draws strength from the amended section 14A of the Citizenship Act, that provides for the possibility of a National Identity Card for Citizens (Rules outline the NPR as the procedure to achieve this). The Aadhar card is simply a proof of residence, with biometric data collection to enable access to government schemes etc. The legal provision for Aadhaar came through the Aadhaar Act of 2016, which made informed consent of the holder of the Aadhaar number mandatory for its use for any specific purpose. After the 2018 judgement in the Aadhaar case limiting its proliferation (that struck down Section 57 of the Aadhaar Act that enabled private entities to use Aadhaar data for services), serious issues of policy incursions into privacy have also been flagged.

The issue is complex. In 2010, an exercise thereafter amended, demographic information for the NPR were collected through a door-to-door enumeration process conducted by RGI, on the basis of a signed form; thereafter this exercise was abandoned. The Aadhaar number was assigned by the UIDAI authorities after the collection of biometric data including photographs, ten fingerprints and IRIS prints. The Aadhaar number is supposed to be the link between the records of one person in the two databases.

However, the Citizenship (Amendment) Act, 2003 did not provide for linking of two databases controlled by two different agencies. Data for Aadhaar had actually been collected by various private agencies through camps, and not through any door-to-door visit by enumerators engaged by RGI. The wholesale linkage that happened till 2015, without specific consent of any of the Aadhaar number holders, was not backed by that law or any other law. Thus, the legitimacy of NPR – as of 2015 – is highly questionable.

Besides, the very purpose of NPR has been to establish residency (and then citizenship) on the basis of documentation, shifting the burden of proof on an individual that will then expose himself to the tyranny of a local bureaucracy controlled by governments. Absence or anomalies in these documents will lead to arbitrary exclusions from the “ordinary residents” (citizenship list) causing untold hardships and social upheavals. As the lived current experience of the state of Assam reveals. The process if not just fundamentally unfair, the ultra vires process exposes the defenceless individual to the judgment of local authorities.

Come 2019 December and the passage of the religion biased Citizenship Amendment Act (2019) caused outrage. Assertions by senior functionaries of the present union government that the implementation of the CAA-NPR-NRC would “follow a chronology” led to legitimate fears that this was the aggressive first step to use the tyranny of a bureaucratic document test to exclude hundreds of thousands of disempowered and marginalized Indians from their citizenship. Any day now fears of this “chronology” being set in motion may be realized as the CAA Rules (pending since 2019 when the Act was passed) are underway.

Assam has to date spent Rs 1,700 crores on an excruciating exercise that has caused burdens on the not just the state but a third plus of the 3.3 crore population. Arbitrary exclusions have been marked by baseless “notices” being sent by the Assam Border Police and Foreigner Tribunals (adjudicating bodies controlled by the state executive) and while a significant 2, 22, 000 citizens and their families reel under the burden of either being excluded from the NRC or being declared “suspected foreigners” or “D” Voters, our experience on the ground shows that 99 per cent or more are “genuine’ Indians!

The linkage of NPR with the Aadhaar database –without informed consent—and in a hasty and secretive manner– creates further possibility of anomalies and mismatch in documents Added to this, the the proviso, contained in the 2003 Rules that shift the burden of proof on individuals to “prove” citizenship is a recipe made for largescale social disaster and a humanitarian crisis.

It was this belated realization that had most likely led the MHA to abandon the pilot project begun earlier (obliquely referred to MHA Annual Report 2008-09).The complication referred to here is the lack of documentation of genuine citizens in this country, and also the imbalance of the power equation between the common man and the local face of the government. The same complications apply equally to genuine residents.

A union government that is truly representative of all Indians will, from the Assam experience, understanbd this. An unaccountable regime may not.

(The author is a senior journalist and Secretary, Citizens for Justice and Peace)

Reference: https://cjp.org.in/cjp-exclusive-how-the-union-of-india-took-a-giant-step-towards-both-npr-nrc-in-2015-without-informed-consent/

(A collective citizens’ investigation by Metiabruz Kolkatta in close collaborators with Citizens for Justice and Peace (cjp.org.in))

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Brief background of the case-

The divisive bench of the Gauhati High Court was hearing a writ petition filed by the petitioner, Forhad Ali, against an order of the Foreigner Tribunal No. 2, Bongaigaon (Tribunal), declaring the petitioner to be a foreigner. The said order, dated October 29, 2019, had declared the petitioner to be a foreigner on the basis of a discrepancy in the name of his father. The documents relied on by the petitioner before the Tribunal, which consisted of Voter’s List of various years and the Jamabandi of a plot of land, stated his father’s name as Habi Rahman and Habibar Rahman, and the Tribunal rejected it on the grounds that such documents were not sufficient to prove that Habi Rahman and Habibar Rahman were one and the same person.

The loopholes within the observations made by the judgement–

1.  If enough documents were present for the High Court to question the order of the Tribunal, why was the case remanded back to the Tribunal?

In regards to the discrepancies in the name of the father, the court objected to the finding of the tribunal and observed that, “No material is also available on record which may show that the names of Habi Rahman and Habibar Rahman appeared together in the same document to give an indication that they are different person. In Sirajul Hoque Vs. State of Assam & Others reported (2019) 5 SCC 534, the Supreme Court was of the view that the minor variation in the spellings of the name is not to be made a basis to conclude that the two persons may be different persons.” (Para 5)

Diving more into the issue and the documents provided as evidence, the Court held the opinion that a minor discrepancy in the name of the person being depicted was required to be ignored. Additionally, the Court provided that merely because of the discrepancy of the name between Habi Rahman and Habibar Rahman, between which there also exists a similarity and proximity, the petitioner’s application for citizenship could not be rejected under the law unless it was proved that Habi Rahman and Habibar Rahman were two different persons.

The bench had also noted that the tribunal had used an inappropriate arithmetic calculation on the age of Ali’s father to reject the voter lists that he furnished. Specific to the land documents relied upon by the petitioner as evidence, the High Court held that the petitioner discharged the initial burden of proof in the case and stated “The Exhibit-11 Jamabandi also contains the information that the land had been mutated in the name of Forhad Ali son of Habibar Rahman in place of Habibar Rahman in respect of a plot of land at Village Lotibari Part-III. As per the order of the Circle Officer dated January 18, 2017 in Mutation Case No. 2584/2016-17, and if the information contained in the Jamabandi is acceptable which shows that Forhad Ali is the son of Habi Rahman of Village Lotibari Part-III and the name of Habibar Rahman as Habi Rahman as appears in the Voters Lists of the year 1966 & 1970, the petitioner may have discharged the burden under Section 9 of the Foreigners Act, 1946.” (Para 15)

Even as the High Court made the aforementioned strong observations, it refuses to take the next logical step and instead takes a U-turn by remanding the matter back to the Foreigners Tribunal. The bench further urged the Foreigners Tribunal, a quasi-judicial bodies established under the Foreigners (Tribunals) Order, 1964 and the Foreigners Act, 1946, to re-examine the “complete Voters Lists of the years 1966, 1970, 1977 & 1985 in respect of the Village Lotibari Part-III as well as the information contained in the Exhibit-11 Jamabandi and pass a reasoned order”. (Para 16)

Furthermore, while emphasising on the duty of the Tribunal to pass a “reasoned order”, the bench holds that the said reasoned order can either be in favour of the petitioner and would prevail over the previous 2019 order of the Tribunal or may be against the petitioner, in which case the “consequences under the law may follow.”  (Para 17)

The said decision of the Court does not sit right and raises the big question- why did not the High Court bench did not reach a decision on the case of Ali itself, based on the observations made by them? By once again remanding the matter to the Tribunal and urging them to “pass a reasoned order”, the Court re-started the process of scrutiny for the petitioner. It is crucial to highlight here that after having received a negative unfavourable order by the Foreigners Tribunal, the petitioner had rightfully approached the High Court by filing a Writ Petition. Remanding the said matter to the Tribunal to re-examine the documents and pass a reasoned order, without even making any comment on the merits of the case, the High Court bench asserted that “till the reasoned order is passed, no coercive action shall be taken against the petitioners.” (Para 18) 

2.  How does, the Tribunals not following the law does established, warrant the involvement of an executive authority?

In its judgment, the High Court bench severely deprecated the Foreigner Tribunals for reaching conclusions in matters of citizenship without following the law established and materials produced cannot be accepted. The bench also specifically pointed to the Tribunals not providing any reason behind reaching the conclusion in the matter. Highlighting this trend, the bench in its order stated that “In course of the present proceeding as well as other proceedings, it has been noticed that in many cases, a proceedee had been declared to be a foreigner without stating the reason as to why the Tribunal arrives at such a conclusion and also not deciding the matter as per the materials on record. It is noticed that the Tribunals often state and describe the materials which the proceedee relies upon in course of the proceeding and thereafter merely arrives at a conclusion that in the view of the Tribunal, the proceedee is a foreigner.”

Shedding light on this very crucial issue of the Foreigners Tribunal not following the law established through legislative procedures, landmark judgments and precedents, the High Court held that any conclusion that is reached by the Tribunals in any matter will not be acceptable if they are not as per procedure established by law, based upon the documents provided and does not specify the reasons for decision taken. The bench in its order stated “Such procedure adopted would have to be deprecated. The Tribunals are entrusted upon the jurisdiction to adjudicate a reference made and decide upon the materials produced before it by giving reasons as to whether the materials indicated the person to be a foreigner or a citizen. Any conclusion arrived dehors any decision or adjudication cannot be an acceptable conclusion and it has to be construed that the Tribunals had not discharged the jurisdiction vested upon it under the law.” (Para 20)

Further slamming the Tribunals, the bench stated that they wanted to know the procedures being followed by the Tribunals in declaring a person to be a foreigner or a citizen as people who have been excluded from the National Register of Citizens for Assam or whose citizenship has been marked as “doubtful” appeal to such tribunals. The High Court pointedly mentioned the submission made by the Assam government that almost 85% of the cases that came to the Foreigners Tribunals eventually resulted in the proceedees being declared Indians. In its judgement, the court stated “We are particularly interested in view of a submission made by the learned counsel for the State of Assam in the Home Department that statistically speaking in about 85% of the referred cases, the proceedees have been declared to be citizens.”

In view of the same, the bench held that “We are concerned that if proceedees have been declared to be foreigner without stating any reason and without analyzing the implication of the materials being produced and if the same procedure is adopted to declare a proceedee to be a citizen, there is a good possibility that many number of proceedees who may be foreigners or illegal migrants have been wrongly declared to be citizens by the Tribunals.”

Through the aforementioned observation, the bench made a very critical statement regarding the discrepancies and arbitrariness that have existed in orders of the Tribunals, resulting in the High Court questioning other orders delivered by the Tribunal which declared foreigners to be citizens. It is pertinent to highlight here that the bench also highlights that the said observations have been made by them after perusing through “a good number of judgments on a random sample basis from the Tribunals all over the State wherein the proceedees have been declared to be citizens.” (Para 23)

It is provided by the bench that out of the judgments viewed by the High Court randomly, some of them have passed a good reasoned order based on their analysis of the materials on record. However, the bench stated that “in many of the orders, the same procedure of describing the materials produced is adopted but without analyzing the implication of the materials or without stating any reason and without arriving at any decision, a conclusion is arrived that in the view of the Tribunal, the proceedee concerned is a citizen. In some of the matters, it is noticed that even there is no proper recording as to what material has been relied upon which would be a basis for the conclusion arrived.” (Para 23)

This procedure adopted by the Tribunals, according to the bench, “would have a far more serious consequence.”

Basing upon this “possibility” of the Tribunals wrongfully declaring the “foreigners or illegal migrants” to be citizens of India, the bench then “requires” for the Secretary to the Government of Assam in the Home Department to conduct a departmental review of all such matters wherein the person in question has been declared to be a Indian citizen. In furtherance to this, the bench empowers the state government to “take appropriate measures as may be available under the law” if any discrepancies are found in such orders of the tribunals.

In the judgement, the Bench states “we require the Secretary to the Government of Assam in the Home Department, to conduct a departmental review of all such references that had been answered by the Tribunals declaring the proceedees to be citizens and wherever it is noticed that any such conclusion or declaration had been made without any analysis of the materials or without providing for any reason thereof and without arriving at any decision, the authorities in the State of Assam in the Home Department to take appropriate measures as may be available under the law.” (Para 24)

Without delving into whether an executive authority has the right the review the orders of a quasi-judicial body and follow the legal principle of natural justice, the bench states that “a responsibility is entrusted upon the State of Assam in the Home Department for doing the needful as indicated.” (Para 25)

It is imperative to highlight here that while lamenting the Foreigners Tribunals of reaching conclusions that have no basis, the Gauhati High Court itself does the same. By using vague terms in regards to the state government of Assam to “take appropriate measures as may be available under the law” in cases where arbitrariness in order is observed, without providing any limit to the same, the Court has provided the government with extraordinary discretionary powers.  It is essential to note here that the High Court has not specifically provided any specific standards against which these previous orders of the Tribunals declaring persons to be Indian citizens are to be compared.

Another question that the conclusion of the said order raises is why the particular statistic of 85%, which has been provided by the state government and then supported by a random perusal of orders by the High Court bench, forms the basis of this one-sided review? The loophole behind only requiring the review of the orders declaring persons in question to be Indian citizens by the state government has not been answer at all. If there are such glaring mistakes in following procedures of law being committed by the Tribunals, why did the bench also not call a review of the orders where person in question had been declared a foreigner? Does that particular order of declaring an Indian citizen to be a foreigner not a miscarriage of law?

The complete order can be read here:

A paradox?

As a report by the Scroll has correctly noted, this ruling has restored, encouraged, and even put a legal stamp on the mistrust that stems from a broader, albeit unfounded, belief in mainstream Assamese nationalist discourse that the National Register of Citizens identified far fewer “illegal Bangladeshis” than it ideally should have. In many respects, the ruling of the High Court reinforces the negative discourse surrounding the National Register of Citizens, a counting procedure that is inextricably connected to the Foreigners Tribunal system.

It is disappointing that, despite correctly pointing out a contradiction in the legal system, the Court may have done more harm than good in its attempts to find and address the arbitrariness of the Foreigners Tribunal system. Those who were deemed Indian citizens by the Tribunals will likely face another executive nightmare as a result of this order’s retroactive applicability. The court has undermined the principle of separation of powers and runs the risk of subjecting the entire tribunal system to the whims of the executive branch by requesting a disparate body, the Assam government, to use its discretion to review and implement the orders of the Foreigners Tribunals. It remains to see whether this judgment of the High Court will open the Pandora’s Box and lead to even more cases people in Assam, most of whom are underprivileged and impoverished, will be declared foreigners or a miraculous decrease in such number will be the result.

It has been pointed out in a report of The Telegraph, pursuant to the order of the High Court, the Assam government has been planning to offer a “crash course” for members of Foreigners Tribunals at the National Law University and Judicial Academy, Assam.

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The post Should the State Government intervene in cases of arbitrary orders by the Foreigners’ Tribunal? appeared first on SabrangIndia.

The said order had been passed by a divisive bench of the High Court upon observing a worrying trend in the orders of the foreigner tribunals whereby declarations regarding one’s citizenship is given based merely recording material without analysis or failing to assign any reasons for their declarations.

“As almost 85% of the references have resulted in the proceedee being declared to be citizens, where it is noticed that in many such cases neither any decision nor any proper adjudication had been made and a conclusion had been arrived without stating any reason or without even analyzing the implication of the materials produced.” 

Findings of the Tribunal in the said case:

The divisive bench of the Gauhati High Court was hearing a writ petition filed by the petitioner against an order of the Foreigner Tribunal No. 2, Bongaigaon (Tribunal), declaring the petitioner to be a foreigner. The said order, dated October 29, 2019, had declared the petitioner to be a foreigner on the basis of a discrepancy in the name of his father. The documents relied on by the petitioner before the Tribunal stated his father’s name as Habi Rahman and Habibar Rahman, and the Tribunal rejected it on the grounds that such documents were not sufficient to prove that Habi Rahman and Habibar Rahman were one and the same person.

Decision of the High Court:

Minor discrepancies in the name to be ignored- The court had objected to the finding of the tribunal in the aforementioned case and observed that, “No material is also available on record which may show that the names of Habi Rahman and Habibar Rahman appeared together in the same document to give an indication that they are different person. In Sirajul Hoque Vs. State of Assam & Others reported (2019) 5 SCC 534, the Supreme Court was of the view that the minor variation in the spellings of the name is not to be made a basis to conclude that the two persons may be different persons,” the Court had said, as per the report of LiveLaw.

The Court had held the opinion that a minor discrepancy in the name of the person being depicted was required to be ignored. Additionally, the Court also provided that merely because of the discrepancy of the name between Habi Rahman and Habibar Rahman, the petitioner’s application for citizenship could not be rejected under the law unless it was proved that Habi Rahman and Habibar Rahman were two different persons. Therefore, the Court remanded the said matter to the Tribunal to re-examine the documents and pass a reasoned order.

Tribunals not following the law established- In its order, the Court deprecated the aforementioned trend being adopted by the Tribunals and it was noted that any conclusion reached by the Tribunals without following the law established and materials produced cannot be accepted. As per LiveLaw report, the bench observed:

“Such procedure adopted would have to be deprecated. The Tribunals are entrusted upon the jurisdiction to adjudicate a reference made and decide upon the materials produced before it by giving reasons as to whether the materials indicated the person to be a foreigner or a citizen. Any conclusion arrived dehors any decision or adjudication cannot be an acceptable conclusion and it has to be construed that the Tribunals had not discharged the jurisdiction vested upon it under the law.”

The Court further noted that in some other cases, a proceedee had been deemed to be a foreigner by a Tribunal without providing any explanation for the said decision. As per the bench, some of these decisions had been made by the Tribunal without even referencing to the evidence that was available on record. With regards to this, the Court also emphasised on the instances where the same procedure (or lack thereof) had been employed by the Tribunal to wrongly declare a proceedee to be a citizen or a foreigner. The court deprecated the conduct of the Tribunal, deeming it to have serious consequences.

As per the LiveLaw report, the Court stated: “But we are afraid to observe that in much many more other orders, the same procedure of describing the materials produced is adopted but without analyzing the implication of the materials or without stating any reason and without arriving at any decision, a conclusion is arrived that in the view of the Tribunal, the proceedee concerned is a citizen. In some of the matters, it is noticed that even there is no proper recording as to what material has been relied upon which would be a basis for the conclusion arrived. Such procedure adopted would have a far more serious consequence.”

Accordingly, as provided by the report of LiveLaw, the Court directed the Secretary to the Government of Assam, Home Department, to conduct a departmental review of all such references that had been made by the Tribunals declaring the proceedees to be citizens. Subsequently, it was directed by the Court that wherever it was noticed that any such conclusion or declaration of proceedings had been made without any analysis of the materials or without providing for any reason thereof and no decision had been arrived at, the Home Department would be free to take any appropriate measures as may be available under the law.

It was further opined that if any action or measure was taken, then it should strictly comply with the required procedure of law as may be applicable for the purpose and should also comply with the principles of natural justice.

“we require the Secretary to the Government of Assam in the Home Department, to conduct a departmental review of all such references…and to take appropriate measures as may be available under the law. Any further action that may be taken pursuant to this order, the result thereof be put up in the public domain or before the people of the State for their knowledge, as the matter of illegal migrants in the State of Assam is an issue which may affect the entire State,” the Court added, as per LiveLaw.

Related:

Assam: Fourteen persons despatched to detention camp, families left frantic

Assam eviction drive compels evicted women to take drastic steps

A decade of suffering, unyielding pursuit of citizenship by Assam woman

ECI’s final de-limitation order seals fears of Muslim marginalisation in Assam

Assam Citizenship Crisis: Family forced to prove deceased member’s citizenship

The post Gauhati HC: “Foreigner’s Tribunals declaring applicants/proceedees to be citizens/foreigners without following law, analysing material placed on record” appeared first on SabrangIndia.

While speaking at a gathering in Giridih on June 22, BJP national president JP Nadda said, “Bangladeshi infiltrators, Rohingya are exploiting our tribal daughters and sisters in Santhal Pargana, and all this is happening under the patronage of the government.” He was referring to the case of Rebeka Paharin who was killed by her partner Dildar Ansari in December last year.

Former Chief Minister of Jharkhand, from BJP, Raghubar Das said on June 22 that the demography of the tribal dominated Santal Paragana was changing, especially in Pakur and Sahebgunj districts. He made similar claims like Nadda, saying that “illegal migrants from neighbouring countries” have infiltrated the state and acquired lands and are marrying local women.

This trope being used by BJP is quite similar to what they use throughout the country, that is to demonise the Muslim community, discouraging inter faith unions and make such baseless claims that they are illegal migrants. Dehumanising the minority Muslim community is a tool persistently used by the party on all fronts, which helps them cash in on voted from the majority Hindus and in the case of Jharkhand, the party is trying to turn even Dalits and Adivasis against the Muslim community, which, if they are successful could create absolute animosity against Muslims in all states, by all communities.

“Considering the prevailing situation in 2018, I requested the central government to implement the NRC as the situation had become a great concern. The NRC will be implemented if the BJP is elected to power in 2024 state elections.” He also accused the Hemant Soren led government of “appeasement” and said that the “infiltrators were being patronized by the JMM”.

Nishikant Dubey, MP from Godda is known to have said that “grooming gangs” of “Bangladeshi Muslim” boys were “exploiting” underage girls from Dalits and tribal communities in the state.

Are the ‘demography change’ claims based on fact?

These claims about ‘declining’ nature of the Adivasi population in Jharkhand were made at a Digital Hindu Conclave recently as well where media professional Pradeep Bhandari spoke. CJP’s analytical fact-check found these claims to be baseless.

The Adivasi population in the state of Jharkhand has experienced a decline over a period of 80 years, from 38% in the 1931 Census to 26.2% in the 2011 Census. The Adivasi population stood at 27.7% in 1991, 26.3% in 2001, and 26.2% in 2011. A study conducted by Outlook magazine revealed that the reason for the decline in population was outward migration as many locals from Gumla, Simdega, and Latehar districts, are leaving their hometowns and migrating to larger towns and cities due to high unemployment rates. Migratory labour patterns are the cause no devious motive.

Further, the Muslim population was 13.08 % in 2001 in Jharkhand. In 2011, it was 14.53, showing no significant increase. Since the increase in population over 10 years is only marginal, BJP leaders, use hysteria and propaganda, not data while making bizarre political claims. Besides, the absence of any data post 2011 census assists them in making wild claims.

Clearly, BJP’s claim that “Muslim Bangladeshi” immigrants are responsible for the decline in the Adivasi population in Jharkhand is unfounded and misleading. The actual decline in the population is due to intra-state migration caused by high unemployment rates, poverty, and displacement caused by mining activities.

Did NRC in Assam in work?

The BJP advocating the NRC in states would have one believe that the exercise worked wonders in the state of Assam, the only state where NRC has been conducted. The truth from Assam belies this.

The exercise of conducting the Assam NRC in Assam has been ridden in controversy and misery for vast sections of the people. The draft final list was released in August 2019 has left a population of 19 lakhs potentially excluded with individuals and their families socially disbarred by being interminably denied citizenship. The process of enumeration under NRC  has been inconclusive, is at a standstill making the uncertainty even more acute. To date these 19 lakh persons have not been officially given reasons for their inconclusion. Looking at the state of the residents of Assam, the rest of the country fears similar or worse repercussions. This is why the 2019-2020 opposition to CAA-NRC-NPR was so strong, diverse and vibrant.

Those excluded from NRC in Assam are not foreigners. The process of issuing notices by the Assam Border Police is arbitrary and procedures adopted by the Foreigners Tribunals problematic.

CJP’s six-year long engagement in two dozen districts of the state, handling cases of the citizenship affected, reveals that all economically and socially marginalised groups are severely impacted. Citizens for Justice and Peace, working closely with the people of Assam, especially those trying to prove their citizenship, has seen the plight of the people, Hindus and Muslims alike.

Related:

Distorting facts about Muslim population growth at the Digital Hindu Conclave

CJP in Assam: The evolution of our campaign to avert a humanitarian crisis

Citizens for Assam: A Quest for Hope and Justice

The post J’khand: BJP promises NRC, makes dubious claims of “infiltration” in tribal areas appeared first on SabrangIndia.

West Bengal Chief Minister Mamata Banerjee hit back at the Centre for using verification of Aadhar as a means of implementing the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC) in West Bengal. She has categorically refused to comply with the same.

This is in reference to the letter sent by the Central government to eight states including West Bengal instructing them to identify illegal Aadhaar cards and those people who do not have Aadhaar cards. The letter also specifies the areas where this exercise should be carried out. In Bengal, the Centre has identified the areas of North-and South-24 Parganas for implementing these checks. Banerjee said that the government was reviving the citizenship overdrive ahead of the General Election next year.

She was addressing a press conference when she said, ““I am directed to refer to ongoing exercise for verification/updation of illegal Aadhaar cards in the selected districts and to forward a list of the specific location of exact pockets of settlements of illegal foreigners in those selected districts to enable UIDAI to be more focussed in the exercise for the elimination of illegal Aadhaar cards.”

The letter was sent to the chief executive officer of the Unique Identification Authority of India (UIDAI) from an under-secretary in the Union home ministry, reported The Telegraph.

As per Census 2011 data, South 24 Parganas has 35.57% Muslim population while North 24 Paragans has 25.82% Muslim population. Banerjee further said, “They want to eliminate a particular community from their rights of citizenship through this drive. The plot is to declare all those people ‘foreigners’ if their Aadhaar card is detected as illegal with any lack (of information). It means they are again playing with the NRC card”.

They have also mentioned specific areas in South24 Parganas namely Baruipur, Canning, Sonarpur and Malikpur; also Barasat, Hasnabad, Bongaon, Petrapole, Barrackpore, Naihati, Jagatdal and Khardaha in North 24-Parganas.

“I am not going to take part in the NRC-like exercise. I will not allow them to play with the NRC card here. I think that all who live in Bengal are already citizens of our country,” she added, as reported by The Telegraph.

The nexus of CAA-NRC-NPR is not a figment of Banerjee’s imagination. Neither is it a political ploy to target the regime. It is a matter of fact which the Union government has vehemently denied from time to time.

Citizens for Justice and Peace has analysed this toxic cocktail of CAA-NRC-NPR in January 2020 when the debate on CAA was boiling (which later subdued due to COVID-19 pandemic). The analysis brought forth how this will affect not just the Muslim community but the marginalised communities at large. The detailed analysis may be read here.

How NPR was the first step towards a nation-wide NRC was clearly explained on the basis of existing legal provisions by CJP in this article, in the form of FAQs. The FAQs explain how as per the preparation methodology prescribed in Citizenship (Registration of Citizen & Issue of NC) Rules 2003, it is from the NPR that data will be taken for Updation in the Local Register of Indian Citizen (i.e. part of NRC) after Scrutiny and Verification.

The exercise of NRC in Assam whereby the (supposedly) final list was released in August 2019 left a population of 1.3 crore impoverished and socially disbarred by being interminably denied citizenship. The process of NRC has not yet culminated in Assam as there has been alot of back and forth on the finality of the August 2019 NRC thus leaving the status of citizenship of those excluded from that list in limbo as their status of citizenship has not been determined and they have no means to prove the same unless official process is started by the concerned authorities in the state. Looking at the state of the residents of Assam, the rest of the country feared its repercussions on them and hence, the opposition to CAA-NRC-NPR was so strong.

West Bengal, under Banerjee has been the loudest voice against CAA and the Centre’s intention of bringing in NRC through NPR.

Related:

NPR-NRC – FAQs

CAA-NPR-NRC: The Law Is Being Weaponised Against …

Why the CAA+NPR+NRC is a toxic cocktail for everyone

The post Identifying fake Aadhaar, a plot to bring in CAA-NRC? appeared first on SabrangIndia.