Due to the bias and prolonged proceedings of the Foreigners’ Tribunals, helpless citizens are forced to endure oppression for years
Noorullah Javed
AFTER the Lok Sabha election results on June 4 this year, there was hope that the dark clouds hovering over the country and the atmosphere of fear and panic would dissipate since the BJP and Narendra Modi’s dreams of a landslide victory stood shattered. Modi and his party wanted to lead the country from democracy toward dictatorship. While taking oath in the name of the Constitution, they dreamed of ending its spirit and establishing a caste-based system inspired by Manu.
The election results crushed all these intentions and dreams. Although Modi and his party retained power, their dependence on allied parties increased. The question now was, why had the dream of the man who considered himself invincible, supernatural, and an incarnation of a god been shattered? Why did the Indian public prefer the slogan of love over hateful rhetoric? Uttar Pradesh, which was shown a dream of conquest in the name of Ram, proved to be the most disappointing.
There was hope that Modi, after taking the helm of affairs for the third time but after seeing the waning of his charisma, would engage in self-reflection and refrain from hateful slogans and activities. It was expected that he would work towards unity and an end to division in the country. Leaders like Nitish Kumar and Chandrababu Naidu held very strong positions. They had chosen to ally with Modi due to the political situation, though ideologically, they shared no connection with him. Therefore, it was hoped that they would rein in the government and their right-wing associates and prevent them from following the path of hatred. But all hopes were dashed. In just three months, India once again found itself on the path of hatred. The hateful mobs against Muslims are active across the country. The killing spree continues. The cruelty of bulldozers remains relentless. Previously, people offering prayers on roads and public places were attacked, but now even the construction of mosques is being objected to.
The tragedy is that Nitish Kumar and Chandrababu Naidu have remained silent spectators. Why are the BJP and the Sangh Parivar so adamant about taking India down the path of hatred? Why do they refuse to acknowledge the message of the 2024 election results? What do they hope to achieve by targeting Muslims? These are critical questions. To some extent, it is heartening that the country’s civil society is concerned about this situation, and the English media is writing extensively about it, trying to understand its hidden messages.
However, what is happening in Assam is entirely different and goes far beyond hatred and anti-Muslim sentiment. Muslims in Assam are under attack from all sides, with state sponsorship. The identity, religious freedom, economy, and education of Muslims are all under state terrorism. Can any constitutional authority appeal to the people of a state not to buy fish from Muslim traders? Amid Assam Chief Minister Himanta Biswa Sarma’s hate-mongering and anti-Muslim actions, a video from Barpeta district in the state surfaced last week that shook the conscience of all right-thinking people. Twenty-eight individuals —19 men and nine women — were summoned to the police station under the pretext of verifying their documents, only to be forcibly herded into a bus and sent to Asia’s largest detention centre, which has now been renamed as a transit camp. The scenes of screaming and weeping men and women encapsulate the entire story of the ongoing human crisis in Assam.
For the past seven decades, Assam has been plagued by ethnic hatred. Thousands of lives have been lost, and many have ended with the hope that conditions will improve one day. After the publication of the final NRC (National Register of Citizens) list, a large number of people, who had the sword of statelessness hanging over their heads, were relieved. However, for 19 lakh people, the majority of whom are Bengali Hindus, the threat of losing their citizenship remains permanent. The Citizenship Amendment Act (CAA) has opened the door for Bengali Hindus to acquire citizenship, but for six lakh Muslims, the sword will always hang over their heads, never knowing when they might be declared foreigners and imprisoned, separated from their loved ones.
The detention camps in Assam are the dark, grim, and terrifying torture chambers of the modern era, where distinguishing between life and death becomes difficult. Life is torment, and death is a reward. Those declared foreigners by the Foreigners’ Tribunals (FTs) are condemned to spend their time there until they either secure bail or manage to overturn the tribunal’s decision through a higher court. Most of the detainees in Assam’s detention camps are held due to minor discrepancies in paperwork, though they have committed no actual crime or wrongdoing. Harrowing details about these camps regularly surface in the media. It’s common to hear about prisoners mysteriously dying in the detention camps. In some cases, individuals have been declared foreigners and sent to these camps simply because the spelling of their names differed on separate documents. For example, Sakin Ali, whose name had an extra ‘H’ in one document, was forced to spend five years in a detention camp due to this minor difference.
Those who fall ill in the detention camps are taken to hospitals in handcuffs. Patients are shackled to their hospital beds. Even pregnant and elderly women are not spared. Rashminara Begum, who was three months pregnant, was put behind bars. In September 2018, the Supreme Court ordered the release of 50-year-old Sofia Khatoon on a personal bond. Her experience was so traumatic that she was unable to speak for 15 days after returning home.
Why were 28 people from Barpeta declared foreigners?
On September 3, police sent 28 people to the “Matia Transit Camp” after they were declared foreign nationals by a tribunal. According to Barpeta’s Superintendent of Police, Sushanta Biswa Sarma, they were sent to the transit camp in compliance with the tribunal’s orders. All these Bengali-speaking Muslims were declared foreigners after judicial proceedings. The police claimed that they were summoned to the SP’s office to be sent to the transit camp. However, locals said that these individuals were asked to bring their documents, but when they arrived at the SP office, they were informed they were being sent to the camp.
When relatives and acquaintances learned that they were being sent to the transit camp, a crowd gathered. Naturally, anyone witnessing the heartbreak of their loved ones being taken away would find it impossible to control their emotions. The videos we have seen show scenes of that very anguish. While such images may be new to those outside Assam, these scenes are common within the state. The Border Police can identify anyone left out of the NRC as a “D-Voter” (doubtful voter) at any time, and the police can knock on their door and take some of their family members away at any moment.
Foreign Tribunals are quasi-judicial bodies responsible for resolving cases of suspected foreigners. A total of 100 Foreign Tribunals are there in Assam, established under the Foreigners (Tribunal) Order of 1964. Assam Police’s “Border Wing” (Border Police) identifies individuals often labelled as “D-Voters” or illegal residents. Two months ago, the Assam government allegedly issued instructions to the Border Police, advising them to refrain from sending cases of Hindus, Sikhs, Buddhists, Parsis, Jains, and Christians to the Foreign Tribunals. This directive must be viewed in the context of the controversial CAA. This means that of the 19 lakh people excluded from the NRC, the 13 lakh Hindus, Sikhs, Christians, and other non-Muslims are not under the threat of losing their citizenship. The sword of foreign citizenship only hangs over six lakh Muslims. Most of these Muslims were excluded from the NRC due to minor spelling discrepancies in their names.
This decision means that Hindu Bengalis and other non-Muslim communities in the state are temporarily protected from legal action by the tribunals, while only the citizenship of Muslims is under scrutiny. As a result, there is concern that such scenarios may become more frequent, especially as Himanta Biswa Sarma aggressively advances his anti-Muslim policies. Several senior lawyers in Assam have stated that there were no deficiencies in the documents of the 28 individuals who were declared foreigners; rather, it was the lack of interest on the part of their lawyers that played a crucial role. Most of the individuals left out of the NRC or declared “D-Voters” are those who could not afford legal fees. Appearing repeatedly before the tribunal is not an easy task, especially for those living in remote areas. Many are declared foreigners due to non-appearance. According to a team of lawyers, this is what happened to these 28 individuals — their lawyers failed to appear in the tribunal on the scheduled date.
A Muslim lawyer from Assam explained that lawyers charge around 30,000 to 40,000 rupees as fees to represent cases in the tribunals, an amount that is far beyond the reach of these poor individuals. A social activist from Assam stated that due to the biased attitude of tribunal officials, the negligence of the lawyers, and the failure to appear in court on time, most individuals, despite possessing all the documents proving their Indian citizenship, are declared foreigners on technical grounds. Once that happens, it becomes nearly impossible for them to escape the situation. When they cannot afford representation in the tribunals, how will they fight their cases in the high court or the Supreme Court? However, some organisations and groups are doing remarkable work in this area, and it is only through their efforts that individuals detained in the camps can be released. Activists like Harsh Mander, Prashant Bhushan, and institutions like the Jindal Global Law School have brought the plight of these detainees to global attention and highlighted the gravity of the situation.
Detention Centres and International Laws
The “alleged foreign nationals” detained in Assam’s detention centres are not criminals, yet they face treatment far worse than that given to regular prisoners. Several reports have claimed that prisoners in jails enjoy certain rights, but these supposed foreigners in the detention camps are deprived of any such rights. Female detainees face the worst conditions.
According to a government report, as of January 25, 2020, 1.27 lakh individuals have been declared foreigners. Among them, 28,971 had concrete documents proving they entered Assam before 1971. Under the Assam Accord of 1985, they cannot be deported. Since these detention centres were established under Section 3(2) of the Foreigners Act of 1946 and Paragraph 11(2) of the Foreigners Order of 1948, the detainees should be entitled to the same facilities and rights as prisoners in Assam jails.
Several human rights organisations, activists, and media reports have highlighted the inhumane conditions in detention camps. Human rights activist Harsh Mander, associated with the National Human Rights Commission (NHRC), filed a petition in the Supreme Court, challenging the violation of detainees’ rights under Articles 14 and 21 of the Constitution. The petition sought redress for these fundamental rights and called for humane treatment of the detainees. Following this petition, the Supreme Court issued several important directives.
There are various international treaties, conventions, laws, and guidelines governing how stateless individuals should be treated, whether they are refugees, asylum seekers, migrants (legal or otherwise), undocumented residents, or people with contested claims to citizenship. All these groups are entitled to certain rights under international law.
The International Covenant on Civil and Political Rights (ICCPR) of 1966 states in Article 7 that no one shall be subjected to torture, cruel, inhuman, or degrading treatment or punishment. Article 10(1) further emphasises that all persons deprived of their liberty shall be treated with humanity and respect for their inherent dignity. According to Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, every state party shall take effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances, such as a state of war, the threat of war, internal political instability, or any other public emergency, may be invoked to justify torture. Furthermore, the order of a superior officer or public authority may not be used as a justification for torture. Article 16(1) commits each state party to prevent other acts of cruel, inhuman, or degrading treatment or punishment not amounting to torture as defined in Article 1 within any territory under its jurisdiction.
Similarly, under Article 21 of the Indian Constitution, individuals are entitled to these rights. It states that no person shall be deprived of his/her life or personal liberty except according to the procedure established by law. Article 21 has been interpreted to guarantee the right to live with human dignity, which includes the protection and enjoyment of a wide range of essential procedural and substantive rights necessary for life and liberty.
The Azaad Awaaz team from the Centre for New Economics Studies visited detention camps and spoke with detainees to compile a report. This report highlights the treatment of women, gender discrimination, and the situation of children living with these women in the camps. It points out that women often fall into the trap of statelessness more than men because the authorities frequently reject the documents they need to prove their Indian citizenship. Poor women have fewer documents to prove their long-term ancestral residence in Assam. As a result, the vast majority of non-citizens are women, and they are later placed in detention centres. Most of the women in detention centres are middle-aged and mothers. In many societies, motherhood is given primary importance, and many women take their children with them to the detention centres to care for them closely.
The Azaad Awaaz report mentions the case of Fatima, a woman from the Cachar district who, along with her daughter, endured detention in three different centres for ten years. She received a notice from the Foreigners Tribunal while she was two months pregnant. Almost eight months later, due to the inability to present the required documents, she was declared a foreigner.
In May 2019, the Supreme Court issued an order for the conditional release of those who had completed three years in detention camps. The court outlined certain guidelines for the release of detainees, including compliance with a bond of one lakh rupees with two sureties. After release, the detainee must provide verifiable residential address details. Before being released, the detainee’s biometrics, fingerprints, and photographs are stored in a secure database. They will be required to report once a week to the designated police station by the Foreigners Tribunal. Any address change must be reported the same day to the specified police station. A quarterly report will be submitted by the Superintendent of Police (Border) to the Foreigners Tribunal to ensure that such released foreign nationals present themselves at the relevant police station, and in the event of any violation of conditions, the person will be apprehended and presented before the Foreigners Tribunal.
The conditions imposed by the Supreme Court for release are extremely strict. For a poor person, it is difficult to provide a bond of one lakh rupees. Additionally, even after release, the individual is still required to regularly visit police stations and offices. Prashant Bhushan brought this matter to the court’s attention, noting that many of the detained individuals are very poor.
After serving three years in detention, they are unable to provide two sureties of one lakh rupees, so they remain in custody even after their eligibility for release. He appealed to the court to reduce the number of sureties from two to one and to decrease the bond amount from one lakh to 25,000 rupees, to better help these poor detainees meet their release requirements. Bhushan also highlighted the hardship caused by reporting weekly to the police station, especially for those living in remote villages who earn daily wages. Many of these people live on islands far from the local police stations. The geographical isolation of these four islands, combined with the nature of the work of these families — mostly daily wage labour — makes weekly reporting to the police station difficult and often impossible. Those who do manage to report bear significant travel expenses and also lose their daily earnings. Bhushan recommended that the requirement to report to the police station be reduced from weekly to monthly, as permitted under current law. However, no significant progress has been made on this front so far.
Various organisations and human rights activists have reported that Muslims in Assam, especially Bengali Muslims, are facing severe difficulties. Those detained in the camps are deprived of basic rights, despite not having committed any crimes. In 2019, Assam’s civil society organisations issued a joint letter to the government, comparing the situation in Assam’s detention camps to that of Nazi Germany’s camps. In Nazi camps, prisoners were often made to mistreat other prisoners, and collective punishments were common. The Jews held in these camps were not even regarded as humans.
The question is: What is the solution? In Assam, millions of people are living under the constant threat of being declared foreign nationals. Thousands of cases are ongoing in the Foreigners’ Tribunal, and 1.25 lakh people have been declared “D-voters.” Hundreds are housed in transit camps, deprived of their basic rights. Certainly, there are many lawyers, organisations, and groups like Citizens for Justice and Peace (CJP) working actively to help these individuals. The pain of Assam’s Muslims cannot be fully understood from afar. It is crucial to read these stories and extend a helping hand to those working on the ground.
In the early days of Islam, spending wealth on the release of slaves and prisoners was considered a mandatory form of charity, and it was decreed that Zakat could be used for this purpose. Helping to free prisoners was considered one of the best forms of charity. The Bengali Muslims of Assam are our religious brethren, and we share a strong bond with them. This bond is based on faith, as mentioned in the teachings of the Prophet Muhammad (peace be upon him). So how can we remain unaware of the suffering they are enduring, and why can’t we extend our support to them? It is necessary to raise awareness among Muslims in other parts of the country about the painful stories of Bengali Muslims so that the bond of Islamic brotherhood and empathy can be strengthened.
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The article was originally published in Dawat Urdu Weekly and has been translated into English by Behzad Parvez.
