Samik Roy Chowdhury and Gorky Chakraborty 
Part I: Kick them out!
On February 4, the Supreme Court directed the Assam government to immediately deport 63 declared foreigners (DFs) held in the Matia transit camp, Goalpara, and file a status report within two weeks. The court questioned Assam government’s explanation that these individuals could not be deported as their addresses were not available.
The Supreme Court in its order stated:
“Even if the addresses of the persons in the foreign country is not available, as the state is aware that they are citizens of a particular country, we direct the state to immediately start the process of deportation in respect of persons at serial number 1 to 63.”
In light of the court’s statements, it becomes essential for us to understand the unique status of these individuals. The Matia transit camp houses a total of 270 individuals. A breakdown of these individual’s status was published by the Indian Express, indicating that 103 of these individuals are from the Rohingya community, 32 are Chins and one individual is from Senegal.
Also read: Foreigner Tribunal Cannot Review its Own Orders: Supreme Court
All of these individuals were referred to session courts and charged under The Foreigners Act, 1946. The remaining 134 are DFs – individuals who have been declared to be foreigners by the foreigners tribunals (FTs), the quasi-judicial bodies set-up under The Foreigners Act, as well as the foreigners tribunal order of 1964. Out of the 134 DFs, 70 have ‘admitted to being Bangladeshi nationals’ while another person is out on bail.
It is the remaining 63 individuals that have caught the ire of the apex court. Curiously, the chief secretary of the Assam government claimed to know their nation of origin.
Part II: Who are they?
To answer this question, we need to understand the manner in which the jurisdiction of the Tribunals in Assam has been defined. Noticeably, Guwahati high court in its judgment for Indira Newar vs Union Of India And 5 Ors, in November 2019, stated:
“The condition precedent is that reference can only be in respect of persons who have come to Assam from the ‘specified territory’…”
This position was reiterated in the Anjana Biswas judgement in August 2022.
The term specified territory, in this context, refers to ‘the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985’ as per the Citizenship Act (1955). In simple terms, a reference to the tribunals can only be made when an individual is suspected to have come from the specified territory of Bangladesh. Therefore, these 63 individuals in question are not only declared to be foreigners, but more specifically, they are declared to be foreigners from Bangladesh who had entered Assam after March 25th 1971. Hence, the Assam government could only ascertain the nationality of these 63 individuals because the tribunals functioning in Assam are specifically set-up to identify individuals who have come to Assam from Bangladesh.
Based on these facts, one can find no logical reason as to why Bangladesh will accept any one of these individuals for repatriation purposes until and unless the Indian government provides undeniable proof like passports or visas linking them to Bangladesh or the individuals themselves accept their nationality and mention their address in Bangladesh. Within this process, the address of the suspected Bangladeshi is important as it will be used by the Bangladesh government to verify the validity of the claims made by the individual housed in the Matia transit camp.
The current petition, filed in 2020, challenged the continued detention of individuals. In relation to this, the Supreme Court had asked the Assam state legal services authority to submit a report that contained the number of detainees and the condition of the camp. On receiving the report on 14/5/2024 the Supreme Court noted that four individuals in the Matia transit camp had already spent more than two years in detention. In its subsequent order, dated 16/5/2024 the court stated:
“We are of the view that the Union of India must take immediate steps for deporting these 17 declared foreigners as it is not the case that there are any offences registered in India against them. Priority should be given to deport 04 persons who have spent more than 2 years in the Detention Centre.”
It is hard to find justification for this order, considering that the Supreme Court did not demand to look at the opinions passed by the respective tribunals in these cases. The hasty attitude exhibited by the court is indicative of the fact that the court is either unaware or ignorant of the complex and contested status of these individuals.
It is maybe due to these (un)reasons that the Supreme Court ignored the flawed processes involved in citizenship determination in Assam.
Part III: A flawed process
The citizenship amendment of 1985, which inserted section 6A in the original Act, was an outcome of the Assam Accord, which was signed after the Assam movement (1979-85). The insertion of 6A in the Act in 1985 transformed the basic principle of citizenship in Assam from jus soli (citizenship by birth) to jus sanguine (citizenship by blood/parenthood).
In essence, for one suspect to prove their citizenship they would have to, either, prove their presence in Assam before 1971 or prove that they are related to someone who resided in the state pre-1971. This creates a possibility, where, a significant number of individuals declared to be foreigners may happen to be born in India, making deportation impossible.
In asking for swift deportation the Supreme Court fails to consider that a significant amount of these individuals, currently at the Matia transit camp, can appeal against the opinion of the tribunals. Appealing is often difficult for these individuals as they are very often drained of their financial resources by the time the tribunal delivers its opinion. Also, there have been many cases where the lawyers engaged by the individuals have not performed their task properly.
Furthermore, a significant number of references are done without proper investigation. These inconsistencies have been visible in multiple cases like Amina Khatun vs. Union of India (2020), Sona Khan vs Union of India (2021), Rahim Ali vs. State of Assam (2024) just to cite a few. Under these circumstances, providing a chance to appeal becomes a necessity.
The 63 DFs currently held in the transit camp, hence, may only be victims of the legal process instead of being illegal migrants.
To conclude with, two facts become clear. First, the manner in which the institutions and actors involved in citizenship determination function are deeply flawed and the judiciary should acknowledge these flaws before making such sweeping statements. Second, and more pertinent, the process of citizenship determination and the process of deportation or repatriation are getting further divorced from each other.
The shift from citizenship by birth as envisaged in the parent Citizenship Act, 1955, to citizenship based on parenthood/blood, emanating after Assam Accord through amendments in 1986, followed by 2003 make deportation improbable. Further, the tendency of the tribunals and also the high courts to declare individuals Bangladeshis based on procedural nuances add to this complication.
In essence, the current system produces non-citizens who cannot be deported. A logical step to combat this would be legislation and judicial oversight, which would reform the pre-existing system. Unfortunately, we may have to wait for the right ‘muhurat’ for that to happen.
Samik Roy Chowdhury is a research scholar at the Institute of Development Studies Kolkata (IDSK). He works and writes on issues related to citizenship and migration in northeast India.
Gorky Chakraborty is a Faculty at Institute of Development Studies Kolkata (IDSK). He works and writes on development related issues on northeast India.