Assam’s tryst with the National Register of Citizens excluded four million people. This assumes the form of statelessness that constrains the fundamental right of the “right to life” in some extraordinary ways, especially the recent spate of penal action on “D” voters, many of whom had voted in the last parliamentary elections, possess valid “legacy data” and other such credentials.
They have been turned into suspected foreigners ex parte by various Foreigners’ Tribunals in the state. The bone of contention is the exact role and status of detention camps for suspected foreigners in Assam.
In many cases, such people come from the poorer sections and are often not in a position to bear the costs of the trial.
So far no legal aid has been officially provided to people who have to attend the Foreigners’ Tribunal and defend their credentials as bona fide Indian citizens.
In a judgment on 10 May, the Supreme Court of India had spelt out tough conditionalities for release of detainees who had already served a term of three years in detention camps. As per the judgment, two sureties of one lakh rupees have to be furnished by an Indian citizen for the release of a detainee; the detainee must provide a verifiable address, has to give biometric details and report every week to a police station specified by the Foreigners’ Tribunal.
In terms of jurisprudence, concerns about the right to life with dignity, right against illegal detention and right to livelihood, medical facility and legal redress need to be reincorporated within the framework of rights of the detainees in Assam.
Nowhere else in India are there detention camps for suspected foreigners and illegal immigrants. Therefore, within the larger framework of evolving jurisprudence on the rights of prisoners, the status of those on indefinite detention in Assam’s detention camps need to be refashioned in conformity with International Covenants and UN-guided regulations.
As Indian is a signatory to the Convention on the Rights of the Child, special protective measures need to be adopted and implemented in protecting the rights of children of such suspected foreign nationals or illegal immigrants.
The detention camps do not have many facilities for child detainees who are there along with their parents. The issue of families getting separated in detention camps has also come to light in the much-discussed Supreme Court case filed by human rights’ activist, Harsh Mander.
The International Covenant on Civil and Political Rights in its Article 20 grants an inalienable right to nationality and speaks about the elimination of statelessness in no uncertain terms.
Evolving legal and procedural framework needs to take into account the “right to nationality” aspect of the detainees after they are declared foreigners. As the declared foreigners have a right to nationality, they need not be treated as stateless and their fundamental right to life has to be upheld by the rule of law and not merely in the context of rule by law.
More interesting is the concept of “bare life” espoused by Giorgio Agamben.
The situation in detention camps resembles that of an aporetic legal framework that has designated many who are legitimate voters and have lived and grown up in Assam before 1971 as foreigners.
A revealing case is the recent death of Basudev Biswas, a detainee from Nowgong district, who died in a detention camp after being ex parte declared as a Bangladeshi. His family members initially refused to accept his dead body saying that as he was declared a Bangladeshi, his body should have been sent to Bangladesh.
Such is the irony of turning many Indian citizens into foreigners by a legal procedure that is not able to take into cognisance the genuine background of the declared foreigners and suspected illegal immigrants.
In another case, Rehat Ali was released from a detention camp after three years when he was declared Indian by a court of law. He pointed out how he witnessed four of his coinmates dying during their term.
Ali was suspected to be a foreigner as his name was recorded variously and there was a mismatch in his age between records. The question is whether such trifle anomalies be referred to an impartial system of justice after a suspected person points it out.
The larger question should be, not to arbitrarily deprive anyone of their right to nationality and also ensure that the outcome of the trial is not adverse to the person under trial.
An outcome-based assessment of the functioning of the Foreigners’ Tribunal might help in mitigating any injustice that can be redressed after the verdict is delivered on someone as a foreigner.
Another larger issue that the Supreme Court pointed out is the deportation of detected foreigners to their country of origin.
In a recent case of the deportation of 20 declared Bangladeshis from Silchar Jail, six were Bengali Hindus. This raises the question of being victimised over and over again by the rather prolonged consequence of Partition of the Indian subcontinent.
The Government of India informed the Supreme Court that there has been a diplomatic discussion about deportation with Bangladesh. The issue is whether, without an extradition treaty that can indisputably confirm the country of origin of a detected foreigner, deportation can be carried out without being it an arbitrary “push back” procedure.
The Government of India should remove the possibility of violation of precious human rights of declared foreigners as might happen in the process of deportation.
Else, risks of violation of sensitive border zones and consequent hiccups in the state to state relations will overshadow Indo-Bangla bilateral ties out of domestic compulsions.
Apart from this, the question of adhering to laws framed for the purpose of detection and deportation needs to be followed in an unbiased manner. The Immigrants’ (Expulsion from Assam) Act of 1950 explicitly prohibits persons, who have been displaced due to civil disturbances, from being declared as illegal immigrants.
It is seemingly not given a harmonious interpretation while applying provisions of the Foreigners’ Act of 1946 that puts the onus of proving one’s citizenship on the accused. A more sensible act like the Immigrants’ (Expulsion from Assam) Act of 1950 aims at drawing a legal distinction between foreigners and illegal immigrants and who should not fall in either category.
Any discussion on deportation must take this important humanitarian law into account so that cases of anomalous detention of genuine Indian citizens could be reduced and eliminated.
The important but oft-forgotten rights like right to livelihood, healthcare and right to fair trial need to be guaranteed not just in an instrumental sense but in a more authentic gesture of human rights towards all the detainees of Assam’s detention camps.
(The writer is a philosopher of law and human rights based in Shillong.)