Guwahati: Like others in his basti (settlement) in Ghilaguri, Manoj Barman* spent most of the year confined to his home and his five bhigas (approximately an acre) of land, growing tea and rubber, watching his livelihood and savings dwindle.
On 24 September Barman, who lives in Ghilaguri, 167 km west of here, received a call that made his year worse. It was his lawyer Samsul Alom, informing him that, after over half a century of living in India, Barman had been classified a foreigner by the Foreigners Tribunal (FT) no. 2 in Bongaigaon district of Assam.
Barman, who came from what was formerly East Pakistan to India in 1966, last appeared before the tribunal in 2017. He was declared a foreigner two weeks ago, said Alom. He and his lawyer have not received a copy of the tribunal’s ruling.
Barman isn’t the only non-Muslim in Assam to be declared a foreigner since the Citizenship Amendment Act (CAA) came into effect on 11 January 2020 to naturalise non-Muslim religious minorities from Pakistan, Bangladesh and Afghanistan living in India before 31 December 2014.
Article 14 found at least seven Hindus declared foreigners in Assam in the aftermath of the new citizenship act, indicating how the government’s citizenship machinery continues often arbitrary procedures—which are tinged, as we reported in May, with majoritarian overtones—often subvert due process.
As the law is being interpreted currently, in the absence of clarity from Delhi on how the CAA will work, Hindus of suspect citizenship are and will continue to be declared foreigners. They will later have to file paperwork to be exempted. When and how they will be eligible is unclear.
Barman’s search for a home goes back to March 1966, when he and his family fled civil disturbances in what was then a part of Pakistan and is now Bangladesh. The family, including his parents and a 12-year-old Barman, initially lived in a transit camp at the town of Hastinapur in the western Uttar Pradesh (UP) district of Meerut. A government order granted anyone with families to “settle elsewhere without any relief or rehabilitation assistance from the Government”.
So, Barman and his family moved to Assam since UP’s “culture and lifestyle was too alien for us,” he told Article 14. “After we came to Assam, we weren’t allowed to register as voters immediately. Also, my father was mentally ill so he never registered as a voter.”
In 1985, Barman became the first in his family to register as a voter.
Although Barman got the Meerut order laminated, over a half century later, the ink on the yellowed paper has run, and the names of the family are no longer legible. In 2017, he was summoned before the FT in Bongaigaon. Along with the smudged certificate, Barman also submitted a 1975 document registering the then 21-year-old farmer as a citizen of India under provisions of the Citizenship Act, 1955.
“They just asked me my name and my parents’ name,” he said. “I was never asked about my documents.”
Other Hindus Too Declared ‘Foreigners’
In the FT in North Lakhimpur, a woman of the Kachari community (an indigenous ‘scheduled tribe’ in Assam) was declared a foreigner in February 2020. In the order accessed by Article 14, one of the documents she submitted as proof of citizenship was her name in the 2019 National Register of Citizens (NRC).
In North Salmara (Bongaigaon district), a Bengali Hindu woman was declared a foreigner by the Bongaigaon FT no. 2, days before the nationwide lockdown began on 24 March.
In December 2019, with anti-CAA protests raging in the state, three brothers, Jatindra, Satindra and Biren Das* in Barpeta district were declared foreigners by FT no. 10 in Bajali district.
The three brothers were marked as “doubtful voters” in a 1997 electoral list and a fourth, Nakul Das* declared an Indian citizen in 2008 by FT no. 2 in Barpeta district. But the three had submitted the same documents as their “Indian” brother, which included a 1965 citizenship registration certificate in their father’s name in the village that once came under Kamrup district.
With changes in administration and the course of the Beki river, a tributary of the Brahmaputra, their residential address has come under the jurisdiction of three separate districts since India’s independence.
The references to these cases were made as early as 1997 and the trials were conducted before the CAA was legislated. Their citizenship status appears to have been evaluated under the Foreigners Act, 1946, and the Citizenship Act, 1955, which sets 25 March 1971 as the cut off date for identification of foreigners in Assam.
However, final orders in the case of the brothers were issued after the CAA was passed in December 2019.
Arbitrariness in Assam’s Foreigners Tribunals
Since 2019, FT members have been writing orders from their homes and dropping them by the FTs whenever convenient, Barman’s lawyer, Samsul Alom, told Article 14. The practice appears to have worsened after the Covid-19 pandemic and six months of lockdown, during which the tribunals were shut.
But under FT rules, a hearing date must be fixed for the final order to be delivered, even if the accused or the lawyers are not present.
This practice leads to delays in filing an appeal at the Gauhati High Court or even to seek anticipatory bail since those declared foreigners are liable to be sent to detention centres until deportation or the opinion is overturned by the tribunal or a court.
FT members backdate the opinion, alleged Alom. “In my client’s case, his order was issued in March,” said Alom. “But until August, when I visited the FT, there was no update in his case nor were any dates issued for a hearing.”
Article 14 sought comment from Eva Kakoti, the member at the Bongaigaon Foreigners’ Tribunal no. 2. We will update this story if or when we receive a response.
Quasi-judicial courts that decide citizenship of persons under doubt, FTs in Assam have drawn criticism from human rights groups, such as Amnesty International and the international media.
In April 2020, two former members told The New York Times that they were put under pressure to declare more foreigners, especially Muslims.
In 2019, a Vice News investigation found that three quarters of the orders passed by the foreigners’ tribunals were “issued without the accused present”, known as an ex-parte judgment. A greater proportion of Muslims were tried at the tribunals and declared foreigners than were Hindus.
After the coronavirus pandemic hit Assam, a tribunal member was removed in May over a letter written on behalf of 12 other members to the state health minister donating money for the COVID-19 fund with the rider that it may not be extended to the “violators of Tablighi Jamaat, Jehadi and Jahil”.
The alleged bias of FT members, denied by the government, is at the heart of a now-intensifying effort, more than half a century old, by Assam to remove from its citizenship rolls a few millions it considers foreigners, primarily Bangladeshis.
In 2017, allegations emerged that the services of 19 members of foreigners tribunals were terminated or their terms not extended after performance appraisals, according to a government affidavit to the high court that listed five parameters: cases disposed, percentage of cases disposed, number of foreigners declared, percentage of foreigners declared and “general views” of the government.
The 19 members challenged the termination in the Gauhati High Court, arguing that the executive should not be evaluating judicial authority on matters where the government was the opposing party. The High Court said that the extension of members in the 2017 notification had been “impliedly (sic) approved by the high court”.
In a report released by Amnesty in November 2019, the human rights group said that Assam’s “semi judicial courts” were “emboldened to function with little or no oversight” by the courts or the governments of Assam or India.
Although a monitoring committee reviewed their performances, the petitioners’ contracts were not renewed. The contract of Kakoti, a High Court lawyer appointed in February 2017 and who adjudicated Barman’s case, was extended in 2018.
Before 2015, only retired or serving district and additional district judges could be FT judges.
In 2019, the government appointed 221 new members to staff 200 new FTs (there were 100 previously) created in Assam to deal with appeals from those excluded from the National Register of Citizens published in August 2019.
Until January 2020, the new members had little work, Outlook magazine reported. By June, when the worst floods hit several districts in Assam, notices from the tribunals started pouring into people’s homes.
Confusion Over The Cut-Off Date
The CAA in Assam was opposed mainly by ethnic Assamese communities in the Brahmaputra valley for violating the 1985 Assam accord that would identify immigrants who came illegally to Assam after March 1971.
Religion was not a qualifier in the three-way agreement between the All Assam Students Union (AASU), the state government of Assam and the central government, which was signed after a six-year-long ‘anti foreigner’ agitation in Assam.
Although petitioners, such as the AASU, appealed against the CAA in the Supreme Court, the court in January 2020 refused to grant a stay but said it would hear petitions from Assam and Tripura separately as the opposition to the CAA in those states were on grounds different from the rest of the country.
In other words, the CAA continues to apply nationwide, except in areas that come under what is called the “Inner Line”—Arunachal Pradesh, Nagaland, Manipur and Mizoram, which require entry permits for non-natives.
Bidhayak Acharyya, a Gauhati High Court lawyer handling citizenship cases for the Gauhati High Court Legal Services Committee said that the CAA does not wipe away section 6A of the Citizenship Act, 1955, which only applies to Assam.
“The CAA does not eliminate section 6A of the principal citizenship act [that sets 24 March 1971 as the cut off date] but only adds a new section 6B,” said Acharyya.
The new section, Acharyya added, more or less neutralises the effect of 6A. “It virtually tends to change the cutoff date from 1971 to 31 December, 2014,” he said.
Indeed, one of the clauses under section 6B of the CAA states that any ongoing proceeding against a person suspected of being an illegal migrant, or whose citizenship is in doubt for any other reason, will be quashed once he secures citizenship under this act.
Niladri Roy, President of the Bar Association in Silchar, said that despite this clause, several Hindus were served notices from FTs in the middle of the pandemic.
“As per the law, the officials need to verify with the Hindus if they want to make an application under CAA, but that is not happening,” he told Article 14.
In December 2019, the Gauhati High Court dismissed 29 FT opinions that declared a number of Gorkha residents living in Assam as foreigners or Bangladeshis.
“The rules under CAA are yet to be framed,” said a senior official at the Assam Police Border Organisation, speaking on condition of anonymity because he is not authorised to speak to the media.
On 7 September, the central government told the Rajasthan High Court that the ministry of home affairs was framing rules under the CAA and “eligible” people could apply for Indian citizenship once that was done.
When this will happen is anybody’s guess. Article 14 sought comment from G D Tripathi, Assam’s home secretary. He requested “time to look at the laws”. We will update this story when he responds.
With #CAA rules not framed, confusion reigns & Hindus continue to be declared foreigners in Assam.
No CAA Benefits For Hindus Yet
The CAA has sharply divided communities in Assam against each other and Hindus are yet to see its benefits, said Niladri Roy.
“A quarrel has been started between the Bengali Hindus and Bengali Muslims. Even the Assamese people are against us (Bengali Hindus),” he said. “For nothing we have become the enemy here.”
S C Keyal, Assam’s assistant solicitor general, argued that the FT process and CAA were not in contravention of each other.
“Those who apply under the provision of this act [CAA] will get citizenship,” said Keyal. “They just have to declare that they entered before 31 December 2014.”
Keyal explained that even under the new law, FTs can continue to serve notices to anyone under provisions of the citizenship act of 1955. “Hindus who receive notices just have to submit a few documents to show they have been residing here before the new cut off date,” he said.
The “declared foreigners” that Article 14 spoke to contested the need to declare themselves foreigners at all, even by the definition of the principal act.
The 1955 Citizenship Act loses much of its relevance when the CAA is in force, said advocate Acharyya.
“Declaring someone a foreigner (post 1971) without considering whether that person could be an Indian under CAA (pre 2014) would clearly be an erroneous declaration and bad in law,” he said.
“A law, however harsh, is after all the law which we are to abide by,” added Acharyya.
‘They Are Making Us Jump Around Like Monkeys’
As a member of the Khotiya Rajbongshi community, one of the six communities considered ‘indigenous’ in Assam awaiting Scheduled Tribe status since 2014, Barman said that being labeled a foreigner has not affected his sense of belonging in any way.
“We’ve been living here for a long time,” said Barman. “If they want to send me to a detention centre, let them. Even Sri Krishna’s father had gone to jail.”
His two sons did not make it in the NRC because his citizenship is the subject of legal proceedings.
Barman will have to appeal before the Gauhati High Court not only to clear his citizenship status but also that of his sons and future generations of his family, who could be affected by the bideshi (foreigner) slur. But he cannot afford a lawyer, after already spending almost Rs 50,000 on his FT case.
“My name had appeared in the first list of the NRC and then later got cut in the final list. The government can do anything,” said Barman. “Even with CAA, they are just making us jump around like monkeys.”
Jatindra, the eldest of the three brothers declared foreigners in Barpeta district, died on 22 July after an illness. His son, Rakesh*, said his father was not mentally fit to stand a citizenship trial, which was noted in his written statement.
“They made no exception or special arrangement for him despite our submission,” said Jatindra. “He was completely unaware of the proceedings that were going on against him.”
Rakesh said he feared he would be judged in the same “biased” manner by the FTs, as his father was.
“I’m an Indian, not because I’m a Hindu but because I was born and brought up here,” he said. “This is my homeland.”
*Names changed on request
(Makepeace Sitlhou is a Guwahati based journalist covering India’s Northeast.)