Alien in motherland: BJP has a lot to answer

Mohd. Azmal Haque served in the Indian Army for 30 years. He retired in September 2016 as a Junior Commissioned Officer. Late last month, however, he received a notice from Foreigners Tribunal, accusing him of illegally entering India after 1971.

He has been asked to appear before the Tribunal on 13th October 2017 with his documents and written submission.

Azmal Haque is obviously outraged. His grandparents were born in India, he himself was born in 1968 in Kamrup district of Assam, and served the Indian Army for 30 years. His wife and his sister-in-law were earlier sent similar notices by the Tribunal and also accused of being illegal immigrants; they duly appeared before the Tribunal and proved their citizenship.

Recently a constable of Assam Police, Abu Taher Ahmed, was also sent a notice by the Foreigners Tribunal to prove his citizenship. Like Haque, Abu Taher Ahmed’s grandparents were born in India. On 21-09-2017 the Foreigners Tribunal declared him to be an Indian citizen.

But it doesn’t stop there. As many as 11 family members of the late Moulavi Muhammad Amiruddin, who was the Assam Legislative Assembly’s first deputy speaker between 1937 and 1946, have also been accused of being illegal immigrants and their cases have been referred by the border police to a foreigners’ tribunal.

Why does the Tribunal send notices?

The Election commission of India in 1997 launched a scrutiny of voters’ list. If the Commission came across any voter whose citizenship documents appeared to be inadequate, the Commission marked them as ‘D’ voter or ‘Doubtful’ voter.

The ‘D’ voters could not vote; they are disenfranchised. They were also deprived of benefits of the Public Distribution System. But significantly, the Election commission framed citizens as ‘doubtful’ voters arbitrarily and randomly without meeting them and without any investigation whatsoever.

The ‘D’ from the voters’ list can be removed if the Foreigners Tribunal held such people as Indian citizens after a full-fledged trial. The Election Commission sends such ‘D’ voter cases to the Superintendent of Police (Border) of respective districts, who refer the cases to the Foreigners Tribunal for its opinion on status of citizenship of the so called ‘D’ voter.

The Foreigners Tribunal send notice to the concerned person to appear before it with citizenship documents and prove his citizenship. Most of ‘D’ voters who appear before the Foreigners Tribunal are being held as Indian citizens.

The Assam Border Police Organisation has its presence in all Police stations of Assam. Ideally its job is to survey areas under its jurisdiction. If they come across any “illegal immigrant” the Border Police is expected to ask for citizenship documents and give reasonable time to submit such documents. If such people cannot provide citizenship documents, the Border Police is empowered to refer such cases (similar to Charge sheet) to the Foreigners Tribunal.

But very often the Border Police randomly picks names of people from voters’ list and frame them as “illegal immigrants” without any investigation. They just record that they approached the concerned person and he failed to show any citizenship document. In many cases the Border Police approach poor and illiterate citizens, mostly daily wage labourers, rickshawallas , and even beggars; take their thumb impression on blank paper, prepare a case alleging such people to be “illegal immigrants” and refer the case to the Foreigners tribunal.

Many of the victims allege that Policemen ask for bribe after being picked up; if bribe is paid then they are let off or else, their cases are referred to the Tribunal for trial.

There are several cases where because of a dispute or rivalry between two private parties, and one party went and bribed the Border Police to frame the other as “illegal immigrants”.

The Foreigners Tribunal is governed by a pre-independence and pre-constitutional legislation called Foreigners Act,1946, where the burden of proof is on the accused.

If you ask any officer of Border Police in private why they are framing genuine Indian citizens as “illegal immigrants”, they will tell you they are pressurised from their higher authorities to frame more people as “illegal immigrants” and complete targets. A police station is given target of referring 5, 10 and even 20 cases to Foreigners Tribunal per month.

The Foreigners Tribunals have frequently held people as “foreigner” because of minor anomalies of name and age in voters’ lists and other citizenship documents, or for not mentioning certain facts in their written statement etc. Mostly people have been held “foreigners” on technical grounds and because they did not have competent legal support.

In many cases multiple notices are send to members of same family. There are cases of different members of the same family getting declared as Indian citizen and ‘foreigner’ based on the same set of documents. Many people, who have proved their citizenship once, have received notices again from Foreigners Tribunal to prove their citizenship. Even people from UP and Bihar are also being held as “foreigners” or “Bangladeshis”.

What has changed after BJP came to Power?

The BJP came to power abusing Indian Muslims as Bangladeshis, during the election campaign, Himanta Biswa Sarma, who addressed the highest number of political meetings openly said that in 35 seats Bangladeshi immigrants were in majority and Indians were in a minority. The fact remains that in 35 seats Muslims were in the majority. This struck a chord with a large number of people and BJP won an absolute majority.

After BJP came to power, Chief Minister Sarbananda Sonowal met all Foreigners Tribunal members and said that the Tribunal members had got a golden opportunity to work for a national cause and they should not let go of such an opportunity.

The Chief Minister meeting members of a judicial body is ultra vires to Article 50 of the constitution of India.

The service of these judicial officers are on contractual basis for two years or extended from time to time on need and performance basis.

On June 21, 2017 the State Government showed the door to 19 Members of the Foreigners Tribunals for their “underperformance” during the last two years. Further, the home department has also issued strict warning to 15 more members of the Foreigners Tribunal asking them to improve their efficacy.

More than 40,000 orders, where the accused were eventually declared as ‘not foreigners’, were passed in the span of last two years or so by the tribunals. It seems Foreigners Tribunal declaring more accused as Indian citizens contrary to the so-called police investigation didn’t go well with the BJP government, hence they terminated the service of 19 Foreigners Tribunal members who were working judiciously and declared the accused as Indian citizens. The Foreigners Tribunal members have challenged their termination before the Hon’ble High Court annexing documents to show they were working judiciously.

The BJP government has also formed screening committees both at the State and the district levels to screen judgements where the person in question was declared ‘not foreigners’ or Indian contrary to the submissions of the police. The screening committees, meanwhile, has challenged around 100 cases before the High Court.

The fact that the Tribunals are declaring a majority of the accused as “not foreigners” only shows that police are framing genuine Indian citizens as illegal immigrants and referring their cases to Foreigners Tribunal. Any sensible govt will pull up the investigation agency for harassing genuine Indian citizen, but the BJP led government is terminating the service of judicial officers.

The case of Mohd. Azmal Haque should be an eye opener for the government and investigation agencies. Let the investigation agency go after illegal immigrants and not hound and harass genuine Indian citizens in the name of illegal immigrants.

(The author is a Guwahati based lawyer and providing pro bono legal aid to Indian citizens wrongly framed as illegal immigrants)