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India’s Constitution Is Under
India’s Constitution Is Under Assault Detention centers in Assam violate all norms of fundamental rights
BY AMAN WADUD
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Jabeda Begum was born in India in 1970 to Muslim Indian parents. Her father’s name was recorded in the 1951 National Register of Citizens (NRC) and appeared on all voters’ lists until his death.
But despite her submission of 15 documents to prove that she is her parents’ daughter, the Foreigners’ Tribunal, which adjudicates citizenship status in Assam, declared her a “foreigner” and stripped her of her citizenship. It then declared that she may be interned at a detention center until she is repatriated to Bangladesh.
The provincial high court agreed with the order. Her case is now pending before India’s Supreme Court, and the police are searching for her (“Coronavirus impact: ‘Declared foreigners’ released from Assam detention camps,” Deccan Herald, April 25, 2020).
A “declared foreigner” is detained not as a punishment, but for deportation to what the court decides is that person’s “country of origin.” According to the Assam government’s “White Paper on Foreigners” (2012), such people are interned immediately after they are classified as such to ensure that they “do not perform the act of vanishing.”
In its affidavit filed before the Supreme Court in February 2019, Assam stated that only four declared foreigners have been repatriated to their country of origin since 2013. In March 2020, the Federal Ministry of Home [Interior] Affairs told the National Assembly that only one declared foreigner was deported in 2019 and none at all in 2020.
Begum’s failure to prove her citizenship changed neither her country of origin nor the fact that she is the daughter of an Indian citizen. Thus, even if she is detained she will never be deported, because why would another country confirm her nationality when India is her country of origin?
Upon her arrest, like hundreds of other Assamese mothers, she will be separated from her children and released only after two years of detention, as per a Supreme Court order passed in a petition filed by the Justice and Liberty Initiative, an Assam-based organization founded by this author.
Before May 2019, “declared foreigners” were detained indefinitely without any chance for parole and prospect of release. Many have been detained since 2010 without committing any crime.
In 2018 Harsh Mander, an Indian author, columnist, researcher, teacher and social activist who directs the Center for Equity Studies, filed a petition before the Supreme Court challenging indefinite detention. Prashant Bhushan, a public interest lawyer, argued the case. On May 10, 2019, the Supreme Court directed that those who had completed three years in detention could be released, provided that they could execute bonds with two sureties of Indian Rs. 100,000 ($1,347) each of Indian citizens. About 300 detainees were released; many others couldn’t meet this condition. One beneficiary was Mamiran Nessa, who was detained in 2010 when, despite having all of the required documents, she failed to prove her citizenship because she couldn’t afford to hire a lawyer. She was separated from her three minor children — her youngest son was only 2 years old — and released only in December 2019. Why? Because she was born in India and all her family members are citizens, she couldn’t be deported. Four months before her release, when her heartbroken husband died, she was denied parole because “declared foreigners” cannot be paroled.
In the wake of the Covid-19 outbreak, the Supreme Court initiated a suo
motu — an act of authority taken without formal prompting from another party — petition with regard to prisons. The court issued notices to all states and Union Territories to explain why directives shouldn’t be issued for dealing with the present health crisis arising out of the Covid-19 pandemic crisis with regard to prisons and remand homes (detention centers).
However, its timely intervention didn’t include Assam’s six overcrowded detention centers, which are located inside the state’s jails — 802 people were detained in March 2020. Consequently, the Justice and Liberty Initiative filed an intervention application for the release of all “declared foreigners” by dispensing with the earlier three years period of detention and the harsh financial bonds.
In response, the Supreme Court reduced the period
Aman Wadud (second left) testifies at the U.S. Commission on International Religious Freedom’s hearing on Citizenship Laws and Religious Freedom
to two years and the financial bond with two sureties of Rs. 5,000 ($ 67.34) each (Deccan Herald, April 25, 2020). As a result, around 350 “declared foreigners,” including Minara Begum of the Karimganj district, who had been detained in the Kokrajhar detention center since 2010 with her 15-day-old daughter, have been released.
Although this new order is welcomed, any detention is unreasonable because such people are neither deportable nor convicted criminals. Their only “crime” is their failure to prove their citizenship before the Foreigners Tribunal, which often classifies citizens as “foreigners” for minor name and age variations in documents. In fact, a contradictory statement from a poor and illiterate relative can cost one his or her citizenship.
In most cases, the Foreigners Tribunal declares people to be foreigners not because of their lack of documents, but by cherry-picking very normal anomalies in the relevant documents. If this parameter of such minor variations were to be applied nationwide, hardly any Indian would be able to prove his or her citizenship.
The Foreigners Tribunals, governed by the Indianadopted [British] colonial Foreigners Act of 1946, mandates that supposed foreigners have to prove their citizenship. If they don’t appear before the Tribunal after the notice has been issued, they can be declared foreigners by ex parte order (in absentia). But such notices are commonly never received. In July 2019, for example, 63,959 people out of a total around 120,000 foreigners were classified as such by ex parte orders. In fact, many of those detained have been declared “foreigners” by this very procedure.
During the last three years, 30 people died in detention, including 10 in 2019. The detainee’s corpse is handed over to his or her Indian family. Dulal Chandra Paul, 65, was mentally unstable when he was detained. When he died during October 2019 (“Send him to Bangladesh: Assam family refuses to accept body of man declared foreigner,” India Today, Oct. 17, 2019), his family only agreed to accept his corpse after nine days of persuasion by the administration and Chief Minister Sarbananda Sonowal’s personal intervention (“Dulal Chandra Paul’s kin firm on shunning ‘foreigner’ body,” The Telegraph Online, Oct. 26, 2019).
Most detainees experience severe depression, primarily for being held without having committed any crime and being separated from their families. The “declared foreigners” claim they are citizens, and most of them definitely are. And yet they are denied both a dignified life and a dignified death. These are serious constitutional concerns, for how can a democratic country intern its own citizens, strip them of citizenship and leave them to die in detention centers? This is not what India’s Founding Fathers envisaged.
In addition to these severe civil consequences, “declared foreigners” are treated worse than convicted felons. The centers’ conditions are deplorable. About 350 people who will never be deported remain in six detention centers across Assam. What purpose does it serve to detain them for two years? They must be released, and this historical wrong must be corrected. ih
Aman Wadud, an Assam-based human rights lawyer and founder of Justice and Liberty Initiative, provides pro bono legal aid to those accused of being “illegal migrants.” On March 4, 2020, he testified at the U.S. Commission on International Religious Freedom’s hearing on Citizenship Laws and Religious Freedom (https://www.uscirf.gov).
