Assam NRC: “Gauhati High Court has given me hope for justice”

[dropcap]A[/dropcap] retired Army officer, who was declared an "illegal immigrant" by a Foreigners' Tribunal in Assam, was granted conditional interim bail by Gauhati High Court on Friday, June 7 2019. While he stepped out of Goalpara detention centre the day after, many camp inmates don't seem as fortunate as him.

"There are about 230 inmates inside the camp. And scores of them have been languishing in the camp for the past over ten years. Their families have disintegrated over the years whereas land and property been usurped (by the crooks)," Kargil veteran Mohammad Sanaullah (52) told The Leaflet after returning to his home in Satgaon locality in Gauhati. "One goes numb after hearing their tragic stories."

The 52-year-old, who has served in the Indian Army for 30 years, had joined the Army in 1987 and retired as Honorary Captain in August 2017. The following year, Sanaullah joined the Assam Border Police Organisation—which has been tasked to identify illegal citizens – as a sub-inspector in Kamrup district. The police initiated proceedings against him in September last year.

Subsequently, a Foreigners' Tribunal in Boko, Kamrup on May 23 declared him an illegal immigrant and sent him to Goalpara central jail, one of six such prisons in Assam that serve as detention centres for declared foreigners. Challenging the tribunal's order, Sanaullah had moved the Gauhati High Court on May 31, 2019.

Rekindling their hopes

Sanaullah refuses to share details about the camp, where he spent 11 days. But he exudes confidence that he would get justice sooner rather than later. "The Gauhati High Court has given me a lot of hope…I'll definitely get justice as I've all the relevant documents to prove my nationality."

Guwahati-based advocate Aman Wadud, who helped Sanaullah's family file a petition in the court, claims that the bail order is a "massive moral victory" for those who were agitated over Sanaullah's "wrongful" detention after being declared an "illegal immigrant in his own country".

Also read: Gauhati High Court comes to the rescue of Kargil war veteran

"It may be a temporary relief but as a member of the legal fraternity and community, it's a huge-huge moral victory. He was granted bail in the first hearing, which rarely happens. It's a huge confidence building measure," an elated Wadud told The Leaflet over phone. "How tangibly it will play out on the ground, it has to be seen. But it has restored people's faith in the justice system. The affected families have got a hope that if they don't get justice from the foreigners tribunal, a higher court will come to their rescue."

Expressing gratitude to senior Supreme Court advocate Indira Jaising who appeared for the former Army officer in the court along with him and advocate Hafiz Rashid Ahmed Choudhury and Syed Burhanur Rahman, he further says: "There were lawyers, who were giving up cases or had stopped taking up the fresh cases. But the local lawyers are feeling encouraged to plead such cases now after one of the India's best lawyers appeared before the court for Sanaullah and got some relief for him."

"The bail order in Sanaullah's case, however, is likely to discourage Border Police from declaring residents as foreigners in an arbitrary fashion," he continues, asserting that "due process of law and principle of natural justice must be followed in all such cases (before the tribunal). What is happening as of now is the violation of people's constitutional rights."

Pointing out "lapses" in the investigation of Assam Border Police Organisation, Wadud maintains, that "the investigating officer himself told media he never inquired from Sanaullah in person. The officer has been made a party. We will prove before the court that Sanaullah has been framed. The inquiry report indicates that the Border Police filed a false case against him."

The next hearing will take place after four weeks, Wadud said.

'A citizen by birth'

Questioning the entire process of by which Foreigners' Tribunals are deciding such cases, Jaising argues, "We are a country where we have never lived by documentation…We are not a country that has a strong data base. This gentleman (Sanaullah) was born at a time when it was not mandatory to have a birth certificate. Now if you ask him to prove his nationality, what would he do apart from producing secondary school leaving certificate and his passport—which give his date of birth."

"Yet there is a tribunal that says you are not an Indian citizen. It sounds like a curse against a person who has served his country all through his life," she says and emphasises, "He is clearly governed by section 3 (1) (a) of the Citizenship Act. He is a citizen by birth."

Wondering how the cases of nationality are being investigated and dealt with by the tribunals, she continues, "How are we appointing people to these tribunals? Are we doing any screening, are we looking at their sensitivity, are we looking at their knowledge of law? At the end of the day citizenship is the most precious right that one can have. The entire edifice of the Constitution is built around a citizen and citizenship rights. These tribunals are the most important tribunals in the country."

Answering a query as to why tribunal people have been made a party to the case, she says, "The record of the tribunal goes to the high court. Section 30 of the Civil Procedure Code makes it very clear that a judge is there to find out truth and can't act like a postman or woman. The tribunal could have summoned the army officers and asked did they issue the discharge certificate? They could have verified if the passport authorities really issued the passport. They could have checked with school authorities to find out if they really issued secondary school leaving board certificate. In that case, Sanaullah would not have been in jail for even a single day."

Poor, illiterate at the receiving end

The controversial National Register of Citizens (NRC)—which was prepared in 1951 and is being updated currently to weed out illegal immigrants from the state, accepts only those foreign nationals who migrated to Assam on or before March 24, 1971 as Indian citizens. However, according to Wadud, many people declared 'foreigners' and subsequently dragged to tribunals are poor and illiterate, who appeared before any judicial forum for the first time in their entire life.

Citing Section 3 (1) of The Foreigners (Tribunal) Order, 1964, Wadud asserts that the tribunal are bound to serve a copy of the main grounds on which a person is suspected to be a foreigner.

"The Supreme Court in the Sarbananda Sonowal (II) vs. Union of India (2007) 1 SCC 174, stated 'Having regard to the fact that the Tribunal in the notice to be sent to the proceedee is required to set out the main grounds; evidently the primary onus in relation thereto would be on the State'. However, the tribunal only serves a copy of notice to the suspects asking them to appear before the tribunal without revealing the reasons."

"It clearly prejudices the case of the accused when they submit the written statement in absence of a clear cut and tangible main grounds which is a mandate of Sec 3 (1) of the Foreigners (tribunal) Order, 1964," he points out.

"The tribunals declare suspects as 'foreigners' based on clerical errors, minor variations in name and age,  place of residence in different voters lists and other citizenship documents," claims Wadud.

There are hundreds of Sanaullahs…

As of now, there are around 1000 'foreigners' lodged in the detention camps for their alleged failure to conform to the NRC rules. "They have been adjudged 'foreigners' by the tribunal even though NRC final list is yet to be published," Wadud states.

The Supreme Court early last month had reiterated that it will not extend the July 31, 2019 deadline to finalise the NRC in Assam.

Sanaullah's detention had hogged international headlines, calling into question the decision of the tribunal that adjudged him a non-citizen. "His case is getting attention for the simple reason that he had served in Indian Army for at least three decades before joining Assam Border Police. If they can do this to him, you can well imagine the plight of others," Wadud says, claiming that "There are hundreds of Sanaullahs whose cases are equally outrageous."

Asked about legal aid for the poor residents who have been declared as illegal immigrants, Wadud replied, "For want of awareness or other reasons not everyone can have a competent lawyer to prove his 0r her credentials before the tribunal or courts in the state."

"Getting in touch with a quality-lawyer is the real problem for a citizen who has wrongly been adjudged a non-citizen here," he remarked, before adding that "Clearly, the legal ability of the lawyer is ultimately going to decide the future of a person in question."

As the July 31 deadline draws closer, uncertainty stares at hundreds of families in the restive state. Over two dozen cases of suicide triggered by the NRC verification, activists claim, have been reported from across Assam so far.