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Judiciary must re-examine how it has viewed citizenship question in Assam

Aman Wadud writes: Citizenship is an important right; in fact, the most important right because it is the right to have other rights. But that’s not how the pillars of Indian democracy have treated citizenship.

The SC on multiple occasions in the Sonowal judgment has stated that there are “millions of illegal Bangladeshi nationals in Assam”.

Earlier this month, a division bench of the Gauhati High Court stated in an order: “… citizenship, being an important right of a person, ordinarily, should be decided based on merit by considering the material evidences that may be adduced by the person concerned and not by way of default as happened in the present case.” The court was hearing the case of Asor Uddin, who was declared to be a “foreigner” by a Foreigners Tribunal through an ex parte order — in absentia. Ordinarily, this should not be big news — citizenship is indeed an important right, in fact, the most important right because it is the right to have other rights. But that’s not how the pillars of Indian democracy have treated citizenship. In Assam, any person, including decorated army officers, can be accused of being a “non-citizen”. Hence, this observation feels like a breath of fresh air.

The Ministry of Home Affairs revealed in Parliament that from 1985 to February 28, 2019, 63,959 people have been declared “foreigners” through ex parte orders by the Foreigners Tribunal in Assam — 62 per cent of the total people declared as “foreigners” in the state.

In a criminal case, however serious the charges might be, the trial doesn’t proceed without hearing the accused. But a person can be stripped of his citizenship in absentia — courtesy, the draconian pre-constitutional Foreigners Act of 1946. If a person sent notice by the tribunal fails to appear before it to prove their citizenship, he is declared a “foreigner’ through an ex parte order. The failure to appear could be driven by several factors — most commonly not receiving the notice, failure to afford legal representation and late issuance of a copy of documents by the executive.

The Foreigners Act’s roots lie in the Foreigners Ordinance, which was promulgated in 1939 to meet the emergency created by the Second World War. The Foreigners Act, 1940, replaced the ordinance — this was wartime legislation. Section 7 of the 1940 Act vested the burden of proof upon the foreigner. The Foreigners Act, 1946, repealed the 1940 Act. The burden of proof remained the same. Thus, a legislation which took birth during the Second World War is now being applied to vulnerable citizens — mostly poor farmers, daily wagers, destitute women, and widows. Moinal Mollah and Jabbar Ali were also declared “foreigners” through ex parte orders. Mollah spent almost three years in detention before getting released, he is now an Indian citizen. Jabbar died in detention as a “foreigner”.

The Foreigners Act was never meant to deal with persons who are considered citizens at one point in time. Section 2(a) of the 1946 Act defines “foreigner” as a person who is not a citizen of India. But almost every person tried by the foreigners’ tribunals in Assam was an Indian citizen, before being accused of being an “illegal migrant” and “doubtful voter or D-voter” by the Assam Border Police and the Election Commission respectively. Both these exercises violate the fundamental right to a fair investigation.

The “burden of proof” has been validated by the Supreme Court in the Sarbananda Sonowal case. Sonowal challenged the Illegal Migration (Determination by Tribunals) Act, 1983, (henceforth IMDT), before the SC. IMDT emphasised procedural fairness, it had an appellate platform to ensure a fair trial, unlike the Foreigners Act, and the burden of proof was on the state. But the apex court found these procedures “extremely difficult, cumbersome and time-consuming” and held IMDT unconstitutional.

There is no end to where subsequent events proved Sonowal wrong. K K Venugopal argued for the state of Assam in favour of IMDT stating that as mandated in Article 21, no person shall be deprived of his life or personal liberty except according to procedure established by law and that there has to be a fair procedure for expulsion of foreigners. The Bench rejected this argument by stating that, “This principle can have no application here for the obvious reason that in the matter of identification of a foreigner and his deportation, he is not being deprived of his life or personal liberty.” This is despite the fact that the Foreigners Act has provisions for detention and restriction of movements. Assam started detaining “declared foreigners” since 2010 to deport to the “country of origin” but the failure to deport created a situation of indefinite detention.

The SC on multiple occasions in the Sonowal judgment has stated that there are “millions of illegal Bangladeshi nationals in Assam”. The court came to this conclusion largely based on a 1998 report by former Assam Governor S K Sinha. The report was not based on any scientific and empirical data, but was apparently prepared after inspection of border areas and districts, discussion with the Indian Ambassador in Bangladesh, and talks with political leaders — yes, political leaders. The judgment extensively quotes from the report, including the prediction that the demand for a merger of the Muslim-dominated districts of Assam with Bangladesh is just a matter of time — after 23 years of the Sinha report, that time is yet to come.

A search in the legal database Manupatra shows that the Sonowal judgment has been quoted 212 times by high courts across the country and seven times by the Supreme Court: Sonowal has become the jurisprudence of citizenship. If citizenship is an important right, as rightly stated by the Gauhati High Court, the Sonowal judgment should cease to be the touchstone to adjudicate citizenship cases.

This column first appeared in the print edition on September 23, 2021 under the title ‘Citizens without a country’. The writer is advocate, Gauhati High Court, co-founder, Justice and Liberty Initiative and Fulbright Fellow at the University of Texas School of Law

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