Published on: JUNE 10, 2019
Written By: GAUTAM BHATIA
On June 8, upon the orders of the Gauhati High Court, Mohammad Sanaullah was released on bail from a detention camp in Assam. He had been detained on May 29, after a Foreigners Tribunal had declared him an illegal immigrant. The Gauhati High Court’s bail order came after a week of sustained public pressure, occasioned by the revelation that Mr. Sanaullah had served for three decades in the Indian Army.
In the intervening period, a shocking number of irregularities surfaced. In its inquiry report, the Assam border police had written that Mr. Sanaullah was a ‘labourer’. The three men who signed the case report claimed that the investigating officer had fabricated their signatures. The investigating officer himself admitted that it might have been an “administrative mix-up”. Yet, it was on the basis of such shoddy material that the Foreigners Tribunal — a quasi-judicial body expected to follow the rule of law — came to the conclusion that Mr. Sanaullah was a “foreigner”, and packed him off to a detention camp — until the High Court stepped in to set him at liberty.But Mr. Sanaullah is among the luckier ones. Investigative journalists have revealed over the last few years that ‘administrative errors’ of this kind are the rule rather than the exception. As Mr. Sanaullah acknowledged in an interview after being released, there were people in the detention camps with similar stories, who had been there for 10 years or more. For these individuals, without the benefit of media scrutiny, there may be no bail — only an endless detention. But by forcing the conversation onto the national stage, Mr. Sanuallah’s case has provided hope that we may yet recognise the unfolding citizenship tragedy in Assam for what it is, and step back from the brink while there is still time.
According to the Assam Accord, individuals who entered Assam after March 24, 1971 are illegal immigrants. There are two parallel processes to establish citizenship: the Foreigners Tribunals operating under the Foreigners Act, and the National Register of Citizens (NRC), which is under preparation. While nominally and formally independent, in practice, these two systems bleed into each other, with people who have been declared as foreigners by the Foreigners Tribunals, and even their families, dropped from the draft NRC.
For something as elemental and important as citizenship, one would expect these systems to be implemented as carefully as possible, and with procedural safeguards. This is especially true when we think of the consequences of being declared a non-citizen: disenfranchisement, exclusion from public services, incarceration in detention camps, statelessness, and deportation. Before treating an individual — a human being — to such drastic consequences, the very least a humane and civilised society can do is to ensure that the rule of law has been followed to its last degree.
The reality, however, is the exact opposite. In a vast number of cases, the legally mandated initial inquiry before an individual is dragged before a tribunal as a suspected “foreigner” simply does not happen — indeed, it did not happen for Mr. Sanaullah. The Tribunals themselves are only constrained by a very limited number of procedural safeguards. This has led to situations where Tribunals have issued notices to entire families, instead of just the suspected “foreigner”. Additionally, reports show that Foreigners Tribunals habitually declare individuals to be “foreigners” on the basis of clerical errors in documents, such as a spelling mistake, an inconsistency in age, and so on. Needless to say, the hardest hit by this form of “justice” are the vulnerable and the marginalised, who have limited documentation at the best of time, and who are rarely in a position to correct errors across documents. On occasion, orders determining citizenship have been passed by tribunals without even assigning reasons, a basic sine qua non of the rule of law. In addition, a substantial number of individuals are sent to detention camps without being heard — on the basis of ex parte orders — and the detention centres themselves are little better than concentration camps, where families are separated, and people not allowed to move beyond narrow confined spaces for years on end.
The process under the NRC is little better. Driven by the Supreme Court, it has been defined by sealed covers and opaque proceedings. For example, in a behind-closed-doors consultation with the NRC Coordinator, the Supreme Court developed a new method of ascertaining citizenship known as the “family tree method”. This method was not debated or scrutinised publicly, and ground reports found that people from the hinterland were not only unaware of the method, but those who were aware had particular difficulties in putting together “family trees” of the kind that were required (the burden fell disproportionately upon women). And recently, it was found that a process by which individuals could file “objections” against people whose names had appeared in the draft NRC — and on the basis of which these people would be forced to once again prove their citizenship — had resulted in thousands of indiscriminate objections being filed, on a seemingly random basis, causing significant hardship and trauma to countless individuals. However, when the people coordinating these “objections” were contacted, they brushed it off by saying that it was mere “collateral damage” in the quest to weed out illegal immigrants.
In a process riddled with such flaws, and where the consequences are so drastic, one would expect the judiciary, the guardian of fundamental rights and the guarantor of the rule of law, to intervene. Instead, the Supreme Court, led by the present Chief Justice of India, has played the roles of cheerleader, midwife, and overseer. Not only has it driven the NRC process, as outlined above but it has repeatedly attempted to speed up proceedings, pulled up the State government when it has asked to be allowed to release people detained for a long time, and instead of questioning procedural violations and infringement of rights, has instead asked why more people are not in detention centres, and why more people are not being deported. Most egregiously, the Court even used a PIL about the inhumane conditions in detention centres in order to pursue this project.
However, what the Supreme Court has failed to understand is that in questions of life and death, where the cost of error is so high, it is not “speed” that matters, but the protection of rights. But through its conduct, the Supreme Court has transformed itself from the protector of the rule of law into an enthusiastic abettor of its daily violation. And the Gauhati High Court has been no better, passing a bizarre and unreasoned order stating that it would be a “logical corollary” that the family members of a declared foreigner would also be foreigners, on the basis of which the border police have sent the names of entire families to NRC authorities. This is the very antithesis of how constitutional courts should behave.
Mohammad Sanuallah is, for now, a free man. But a society in which his case is the exception instead of the rule, where it needs a person to be an ex-Army man, and his case pursued by national media for a full week before interim bail is granted, is a society that has utterly abandoned the rule of law. Yet Mr. Sanaullah’s case can do some good as well: it can prompt some urgent national introspection about a situation where, in the State of Assam, thousands of people languish in detention camps for years, victims of a process that, to use an old adage, would not be sufficient to “hang a dog on”. If anything can trigger an urgent and imperative call for change, surely this will — and must.
Gautam Bhatia is a Delhi-based lawyer