Nurjahan Nessa was asked to prove that she is Indian before Foreigners Tribunal No. 4 in Hajo, Assam, in 2016. She produced several documents based on which the tribunal declared her Indian. Nessa was one of the very few suspected foreigners who got an opportunity to defend themselves before this tribunal. We analysed 818 orders passed by this Foreigners Tribunal between June 16, 2017 and December 30, 2019, obtained through the Right To Information Act, and found that 96% were decided ex parte. Also, the orders were inconsistent, vague and biased.
Claims by the police
A majority of the orders followed set templates with only the names of persons, police stations, and dates being changed. The descriptions of investigations by the police are questionable. In 733 cases, the police claim to have met the suspected foreigners. The police asked these suspected foreigners to produce documentary proof of their citizenship, and 570 of them allegedly produced no documents (the remaining orders did not mention whether any documents were produced). It is hard to believe that when it comes to a matter as serious as citizenship, 570 people could not produce even a scrap of paper furthering their claim. In 218 of these cases, the police went on to declare that the suspected foreigners were from Bangladesh (mostly from Maimansingh). Apart from these alleged meetings with the suspected foreigners, the orders do not allude to any other investigation by the police.
Although the police claimed they were able to meet suspected foreigners before submitting their inquiry report, in at least 98% of such cases, they were unable to locate the suspected foreigners subsequently to serve a notice to appear before the tribunal. The police alleged that these persons were not residents of their earlier locality and could not be traced despite their asking local residents and gaonburahs (village headmen). A practising advocate revealed that in some of his cases, the gaonburahs also appeared as witnesses for the suspected foreigners and confirmed that they were not questioned by the police as to the whereabouts of these suspected foreigners. Foreigners Tribunals do not allow for the police to be cross-examined, thereby leaving no room to disprove or challenge submissions made by them regarding their alleged meetings with the suspected foreigners and their subsequent inability to find them. All this works out conveniently for the police and the tribunals given the anxiety in Assam about finding and deporting Bangladeshis. Unlike regular criminal trials where an accused is presumed not guilty and the state has to prove that he committed a crime, the burden of proof under the Foreigners Act of 1946 is on the accused. If a person fails to appear before the Foreigners Tribunal, it can pass an order declaring him a foreigner ex parte, without allowing him an opportunity to defend himself. In all the ex parte orders, the police produced no evidence to indicate that the suspected foreigners were not Indian, yet the latter were declared Bangladeshi.
A desperate search for Bangladeshis
Only in 31 cases were the suspected foreigners allowed to refute the allegations made against them. All these 31 orders were passed by the same tribunal member. The progression of her career as a member of the Foreigners Tribunal gives us an inkling of how the desperate search for Bangladeshis in Assam has tainted the quasi-judicial process of adjudicating citizenship claims. She was appointed as a member of the tribunal in July 2015 on a contractual basis. On June 20, 2017, she was denied an extension along with several other members because she had not declared enough people as foreigners. She was reinstated only after she and the others challenged the termination of their services before the Gauhati High Court.
Since most of the cases analysed were decided ex parte, we expected that these proceedings would have at least been swift. This tribunal took an average of 10 years to dispose of a case. It is interesting to note that 92% of the cases analysed were disposed of in 2018 and 2019 alone. In 82% of the cases, the police gave the tribunal reports of service of notice in 2018 and 2019, although some cases dated as far back as 1999. The cases appear to have been kept in cold storage for several years and disposed of with undue haste in 2018 and 2019. On average, the tribunal took 39 days from the date of receipt of this report to pass an ex parte order.
The tribunal ordered the deportation of the suspected foreigners in 97% of these cases. However, very few, if any, will actually be deported since deportation requires Bangladesh to accept the deportees. Assam’s Parliamentary Affairs Minister said only 227 persons were deported between March 13, 2013 and July 31, 2020.
There is an urgent need to make the procedure followed by the Foreigners Tribunal fair and transparent. The claims of 19 lakh people excluded from the National Register of Citizens will go before these tribunals. Their cases cannot be decided arbitrarily and callously as they have been in the past.
Leah Verghese and Shruthi Naik are with DAKSH, a non-profit based in Bengaluru . The authors would like to thank Aditi Nagesh for her research assistance.