The Uncounted Part 4: Their Next Stop

Says Zaman, “The village headman was questioned on the certificate he had provided linking Joynal to his father and grandfather. The Member asked him if he has maintained any diary or register of the names of people in the village and their ancestors. He replied he had one at his home,” says Zaman.

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Shahzahan Ali and wife Amina, who were cleared by FT 5, 21 yrs after being marked ‘D’ voters 9(Express Photo by Abhishek Saha)

On September 6, the 70-year-old headman of Domoni village will have to appear next in their case.

Every time a hearing happens, Joynal, who pulls a cart for a living, has to travel to Barpeta town. It was sometime in 2009 that the Border wing of the Assam Police sent a ‘reference’ case against Joynal and Mojiran to the FT, suspecting them to be foreigners. Consecutively, a notice was sent to the couple to appear before the tribunal. After the couple had been living in uncertainty for eight years, the case finally began at FT 2 over a year ago. There have been 10-odd hearings since.

Zaman, who has at least 25 cases running at FT 2, says Joynal and Mojiran are far from exceptions — including in getting notices long after their cases were first flagged by the law.

Figures are hard to come by for individual FTs, with access to hearings tightly controlled by police that man the premises, including at Barpeta. But in March, in response to a question by the opposition AIUDF, the BJP government supplied some numbers. These showed that in the more than 30-odd years since the FTs took off, till December 2017, they had disposed of just over 2.40 lakh cases, while a little over 2.45 lakh cases were still pending with them.

One lawyer who has cases at FT 2 says that on an average 20-25 cases — at various stages — are lined up before an FT.

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It is to these overworked, overcrowded FTs, presided over by one Member each, that those among the 40 lakh people out of the National Register of Citizens (NRC) draft, who finally don’t make it to the NRC list, will be referred.

The FTs are quasi-judicial bodies meant to “furnish opinion on the question as to whether a person is or is not a foreigner within the meaning of Foreigners Act, 1946”.

The first of these FTs were established after 1964, but gradually wound up between December 31, 1969, and March 1, 1973. The government explained, “they (the tribunals) were no longer found necessary as most of the infiltrators had been deported”. Then, in 1979, in the wake of the outcry over the influx following the 1971 Bangladesh War, the FTs were revived.

Over the years, 36 FTs came to be functional across the state. In 2015, to dispose of pending cases faster, this number was increased in one go to 100. Along with the increase in number of FTs, the criteria for Member selection were relaxed. Earlier, only a serving or retired district judge or an additional district judge could be appointed an FT Member, but since 2015, any practising advocate who has completed 45 years of age as on May 1, 2015, and 10 years of legal practice can apply for the post.

FT 2, where Zaman’s clients appeared today, is one of Barpeta district’s three earliest Foreigners’ Tribunals. It now has 11.

As per Census 2011, this district in Lower Assam, famous for its satras or Vaishnavite monastries, has a population of 16.93 lakh, 70 per cent of it Muslim. A large proportion, both Hindus and Muslims, are Bengalis. Located next to the Brahmaputra river, the district has always attracted immigrants because of its fertile land, without any major religious or linguistic violence.

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As per police data, there are 864 untraced declared foreigners in the district. (The Assam Police’s records of “untraced declared foreigners, post-71 stream” for every district are available online. The lists go on to add, ‘If you come across any one of them or have any information about them, please inform on the following numbers’, giving contacts of top Border Police officials.)

FT 2 Barpeta has primarily two rooms, one in which the Member sits and the other occupied by its three staff members. In the common entrance leading to the two rooms are placed two benches, where police personnel share space with those waiting for their hearings.
In the courtyard, lawyers are in conversation with clients preparing them for what to expect inside. Four police personnel, including one woman official, keep an eye on anyone loitering nearby.

Half an hour after Zaman has left with his clients, senior lawyer Abhijeet Choudhury emerges from FT 2 with Prabhabati Saha, a 63-year-old woman who lives on Barpeta Road and walks with the help of crutches, and helps her onto a rickety bench.

Assam residents queue up Monday to to check if their names are in NRC. AP

Later, at an eatery near the FT, he elaborates that Saha, who is illiterate, was asked “mathematically puzzling questions”. “She told her age. When she said her father died 35 years ago, she was asked what her age was at the time,” Choudhury says, adding a nervous Saha couldn’t respond.

The 33-year-old, who claims to have been a lawyer in 400 cases in various FTs in Barpeta over the past eight years, says, “Any mistake, however slight, regarding names and spellings, discrepancies in age between one document and another, or an answer to a question that does not match some submitted document, might lead to a person being declared a foreigner.”

Several lawyers who have cases at the 11 FTs in Barpeta agree with Choudhury. “Cross-examination of those who are illiterate is problematic, many are unable to correctly remember their date of birth or the date of birth of their father. Then, if a question like their grandfather’s place of birth is asked, it can yield an answer not exactly as in the records,” points out a senior Barpeta lawyer.

A lawyer gives the example of a brother who came as a witness for his sister and was unable to say correctly the year she was married. She was declared a foreigner.

About how many have lost their cases at Barpeta FT 2 and been declared foreigners, there is no official figure. The overall government data for the state puts the figure at over 90,000 people, with 900-odd lodged in its six detention camps. Also, while government data goes on to cite deportation of 29,738 ‘foreigners’, most of these had been convicted of crimes in Indian courts, and very few were among those declared foreigners by the tribunals.

The Express tried repeatedly to talk to FT2 Member Bhuyan, till a policeman finally came out of the tribunal premises to say it would not be possible to meet or talk to her. “Not today, not anytime soon,” he said.

A former FT Member says they are told to avoid talking to the press.

The FTs get two kinds of cases: those against whom a reference has been made by the Border Police, and those whose names in the state electoral rolls have a ‘D (Doubtful)’ against them. The latter category was introduced in Assam in 1997 to supposedly mark people unable to prove their citizenship during verification.

After a notice has been sent, the person concerned has to appear on the given date and submit a written statement to the FT, attaching a photocopy of documents to show he or she is a genuine citizen. Following that, there is submission of an affidavit, cross-examination of those accused of being foreigners and of the witnesses they produce. Lawyers say procuring a certified copy of voters’ lists or land records might take weeks, if not months.

“When a person is accused of being a foreigner he requires certified copies of electoral rolls to prove citizenship. Electoral rolls are in the custody of the District Election Office. Apparently a large number of employees of the District Election Office are involved in NRC work, hence it takes months to deliver certified copies of electoral rolls. Very often this delay becomes a huge impediment,” says Aman Wadud, a Guwahati-based lawyer.

The final draft NRC was published on July 30 and it had excluded more than 40 lakh residents.

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There is also no systematic process for ‘D’ voters to get notices from FTs. There are numerous instances of people marked ‘D’ in 1997 (the year the revision of the electoral rolls was done) only getting notices in the past four years. Advocate Syed Burhanur Rehman, who practises at the Gauhati High Court, says, “The reason this happened is that at that time (in 1997) the number of FTs was less, and it was humanely not possible to send a notice to everyone. Also, the attitude of the administration regarding this was less forceful then, as compared to now.”

The BJP government has been accused of putting pressure on the FTs to declare people as foreigners.

Although the Gauhati High Court interviews candidates for selection as FT Members and monitors FT functioning, the appointment and performance appraisal are done by the Home and Political Department. In June 2016, CM Sonowal had met Members of FTs and said his government would extend all possible support to make the tribunals more effective. The same year, the state government had constituted state-level and district-level committees to “screen” the orders passed by FTs. Following that, in 2017, the government discontinued the services of 19 FT Members saying “their overall performance (was) unsatisfactory and due to some inadequacies noticed during the last two years”.

Mamoni Rajkumari, a former Member of FT 6 of Nagaon district, petitioned the Gauhati High Court against the government order. In December 2017, setting aside the government notification, the court said it was “obligatory for the High Court to assess the petitioners”.

Rajkumari, who claims to have disposed of 682 cases as Member, told The Sunday Express that only two of the 19 have since been reinstated. She is not among them, and has gone back to working as an advocate at HC. “There was pressure from the present government to dispose of cases within 60 days,” Rajkumari says, adding that the FTs often suffer from manpower shortage, including that of peons, typists and clerks.

Lawyer Abhijeet Choudhury says that of his first 300 cases, only one or two were declared foreigners. In the last one year, he adds, that number stands at 35 of 100 cases.

The question of bias in the tribunals and declaration of people as foreigners despite proper documents has also been raised in the state Assembly. In its response in February this year, the government said, “The matters of the FTs are directly monitored by the Honourable Gauhati High Court and no such cases of bias on the part of the FT Members have been reported till date.”

To a question on whether there was a provision to punish a Member if it was found that a person had been declared a foreigner despite having proper documents, the government said there was no such provision and the FT order could be contested in the high court or the Supreme Court.

Choudhury says he has taken to giving his clients the same advice. “I tell them that the decision will probably be against them at the FT and we should be prepared to go to the high court.”

L S Changsan, the Principal Secretary, Home and Political Department, denies any pressure from the state government. “It is in the law that the FTs dispose of cases within 60 days,” she says. “Also, the allegation that the Border Police is given targets to make a certain number of references to the FTs is completely wrong. Instead we have sensitised them that they should be sure before making a reference.”

About the shortage of government lawyers at the FTs, Changsan says, “Barring a few, government pleaders are there in most tribunals. We are doing our best to support the FTs. Building up institutions takes time and we are empowering them to enhance their capacity in every way.”

However, Aminul Islam, general secretary of the AIUDF, warns about the “chaos” ahead. “First, I have strong reservations about the 40 lakh figure of exclusion from NRC draft. Second, the fact that those who will not be in the final NRC have to go to the FTs can make the situation chaotic. Thousands of cases are pending at the FTs.”

Assam BJP spokesperson Rupam Goswami dodges a question on what will happen to people going to the FTs after the final NRC, only saying they would decide this after the final NRC comes out.

In February 2016, around 20 years after being marked as ‘D’ voters, Shahzahan Ali (57) and his wife Amina Begum had got notices from FT 5, Barpeta. After doing a preliminary check of their papers, FT 5 told them the case should be under FT 1 because of their address.

So in May 2016, the couple got fresh notices from FT 1. In March 2017, they were cleared to be Indian citizens.

Talking of that period, Ali, a high school teacher in Barpeta district, says, “We would not get a hearing on our dates. One or the other problem would crop up, like the Member not being present. I got my first hearing after seven-eight dates and my wife on the ninth. During the cross-examination, I was asked my father’s name and details like where I was born. I have heard some cross-examinations are nasty, a person might also be asked about his great grandfather’s name or place of birth. Thankfully, the Member in my case asked only about my father and myself.”

Amina Begum only says three words: “I was scared.” So is young Barpeta lawyer Fazlul Hoque. In 1997, Hoque and his parents had been marked ‘D’ voters. In 2008, he became a lawyer. In 2014 finally, he got a notice from FT 2. He appeared before the tribunal, with a colleague as lawyer. Eventually the FT declared him an Indian citizen. His mother was declared Indian in 2015 and his father in 2016.

“We are genuine Indian citizens. We had all the documents,” says Hoque. Today, while Hoque has scores of cases running in Barpeta’s FTs and even in FT 2, he is not as sure about his clients, and tells them that there is a high possibility they might be declared foreigners. “Tokhon justice chilo, ekhon bhoy laage (Then, there was justice, now there is fear),” he sums up in Bengali.