Mumbai: In a detailed report on the ongoing process of compiling a National Register of Citizens in Assam, the International human rights organisation Amnesty International India has criticised the judicial system of the country for being “complicit in perpetuating exclusion and abuse” and violating human rights in the state.
The report, which, in detail, studies 16 cases of persons who were arbitrarily deprived of their citizenship by the Foreigners Tribunals has stated that the process carried out by the tribunal has been riddled with grave biases, prejudices and arbitrary decision-making processes.
The report extensively delves into some of the key judgements passed by the Supreme Court of India and the Gauhati high court and has critically commented on the courts’ orders for “entrenching discriminatory practices on ground and emboldening the Foreigners Tribunal to function in total disregard for fair trial standards”.
The report focusses on the 2005 judgement of the Supreme Court of India issued in the case of Sarbananda Sonowal v. Union of India, which Amnesty says was responsible for changing the face of citizenship determination in India. In this petition, the apex court had focussed on the aspect of “external aggression” and the report says in the absence of any guidance given by the constituent assembly debates and previous case laws, the court interpreted the term ‘aggression’ broadly, drawing interpretations from US, UK and international law.
It argued that the word ‘aggression’ would include “invasion of unarmed men in totally unmanageable proportion if it were to not only impair the economic and political well-being of the receiving victim State but to threaten its very existence.”
The court had relied on the 1931 report of C.S. Mulan, a census officer and the 1998 report of the former governor of Assam, which claimed that irregular immigration was the primary cause for problems like insurgency and ethnic strife in Assam, sloppily linking irregular migration with external aggression.
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“For all practical purposes, it equated migration with ‘external aggression’, and ruled that it has resulted in the constitutional breakdown in the state, setting a grossly wrong precedent,” the report points out, further adding that the judgement was violative of domestic laws and international human rights of thousands set to lose their citizenship in the state.
Supreme Court of India. Photo: Reuters
A similar analysis was done of the Gauhati high court’s order in the 2013 case of State of Assam v. Moslem Mondal & Ors where the judges had restricted the scope of judicial appeal.
“The right to appeal is an essential element of a fair trial, aiming to ensure that a decision resulting from prejudicial errors of law or fact, or breaches of the accused’s rights, does not become final. Specifically, restricting nationality decisions to the exclusive competence of the executive, raises due process concerns as this leaves people more vulnerable to an abusive application of law,” Amnesty concluded in the recently released report.
Foreign Tribunal: its independence and competence
The Gauhati high court, in May 2005, had upon approval by the government of Assam and the Ministry of Home Affairs, issued a notification calling for the recruitment of 47 members for the Foreigners Tribunal.
The government of Assam had restricted the criteria to serving or retired district judges or additional district judges and advocates aged 45 years or above with over 10 years of legal practice. Knowledge of Assam, Assamese and issues related to foreigners were key yardsticks. While the judges appointed as members were given a non-restricted tenure until they turned 65, the tenure of the lawyers appointed as members was limited to two years, extendable on the basis of ‘need and performance’.
The report highlighted how these recruitments were done without taking competency and adequacy into consideration. Speaking to Amnesty International India, Sanjay Hegde, senior Supreme Court lawyer said, “If the conditions for hiring the Foreigner Tribunal members were applied for example to the Debt Recovery Tribunal, people would have yelled that injustice was being done to them. Clearly, we seem to place a lesser premium on human citizenship than on human debt.”
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The report, through 16 case studies, elaborates on the several levels of discrimination that have been faced by those excluded from the registry. The tribunal’ process discriminates on the basis of gender, religion, individuals disability, and economic stability.
The organisation, on the basis of its findings, has asked that India immediately sign and ratify the 1954 Convention relating to the status of stateless persons and the 1961 Convention on the Reduction of Statelessness.
Amnesty International India has sought for “restoration of citizenship to people where it can be shown that the deprivation of citizenship was done through arbitrary-decision making and constituted a human rights violation”.
In another recommendation, the organisation has asked for a reversal of the burden of proof on the state, particularly in cases where the person suspected of being a foreigner does not hold any other nationality and stands the risk of becoming stateless.
Another report, similar findings
Another fact-finding exercise, undertaken by the members of ‘Women against Sexual Violence and State repression’ or WSS, suggests that even minor discrepancies in names cost many a place on the list. “Several people testified to the struggle of Hindu officials to get their names right while filling forms for voter IDs, panchayat certificates and the rest. Sometimes an additional suffix related to social identity like a ‘Munshi’ randomly added by an official decades ago became the price for exclusion,” the finding states.
Among women, the report says, “Although, it is common practice for women who would sign off as Khatun to become Begum once they are married, this customary change in name caused many rejections.”
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The preliminary findings, compiled by members of the fact finding team – Nisha Biswas, Ajita, Swapna, Maheen Mirza, Bondita, Seema, Nikita Agarwal, Sohini and Shreya K – has also looked at the deep trauma, indebtedness, loss of lives and trust suffered by those who have fallen of the grid.
“The process has had a deeply damaging impact on the people of Assam leading to many physical, mental and psychosomatic illnesses. The fear of being detained in camps, deported to unknown lands, separated from friends and family, and attacked for being branded as foreigners have come to define everyday life for many in Assam,” the finding states.