Detained for decades, those who have been declared foreigners in Assam are denied a wage and parole.
Madan Das’s spindly fingers grasp an imaginary tool and move through the crisp winter air inside the jail superintendent’s office in the Goalpara district jail in western Assam as he tries to decide on a word for his previous occupation. “Mistri?” I venture. “Yes, mistri. I was working at a marriage in a neighbouring village when they came to serve the notice, so they did not find me home.” ‘They’ are personnel from the Assam Border Police Organisation (referred to as ‘border police’ by most), the primary organisation involved in the detection and detention of foreign nationals in Assam.
This was the first in a series of visits to the police station and courts for the 35-year-old, eventually leading to his detention in the detention centre for foreigners housed inside the Goalpara district jail. The daily-wage labourer was declared a foreigner by a Foreigner’s Tribunal (FT) in his native Nagaon district. His wife, children and the rest of his family (at least the ones he is in touch with) are all bonafide Indian citizen.
Two years, four months and 23 three days into his detention, Das sits next to me explaining how the lack of documentation to prove his citizenship led to his detention. “As a child I had lost my parents and was living with an aunt. The aunt’s house caught fire and we lost a lot of things, including documents. I was young and never bothered filing for them again. Before he died, my father had told me that the family had come from West Bengal, and I found his name in a 1971 voters list from there.”
This discovery did not help; both the FT and the Guwahati high court rejected his assertion that he was an Indian. Das’s family has spent Rs 40,000-50,000 fighting his case, depleting their lifelong savings to almost nothing. His wife is a cook in a government high school in their native Bamunigaon; her father and brother help provide for his four children now, the eldest of whom is in his early teens.
Das draws in a deep breath to maintain his composure; his face has been inscrutable in the last ten minutes of the interview being held under the watchful eyes of senior police and jail authorities. He fixates on the sudden burst of sunlight through the window that turns the teal walls of the office into a peculiar cyan. I hazard a change in topic: how is life in the camp? “It is okay,” he says, visibly trying to muster together a way of putting things. They are treated well, one of the officials present interjects in the silence. The official then goes on to stress that the detainees are treated differently from inmates; the detainees after all are just here “until deportation to their country of origin” and not serving sentences for any crimes. But things are knottier than that.
The legal non-application of jail manual rules to detainees means that they are not allowed to work for a wage, unlike jail inmates who can work for Rs 55 a day (unskilled labour) or Rs 75 a day (skilled labour) during their incarceration. Das has therefore not earned a single paise since his detention more than two years ago, which has had a devastating effect on his family. The authorities pointed to regular inmates all around me running chores and doing paperwork in the jail offices.
The legal differentiation also means that detainees cannot be granted parole, no matter how long they have been detained. Only visits by families, lawyers etc. are allowed, after due permission is granted by the DSP (Border) and the Jail Superintendent. Das was last visited by his wife three months ago. Travel from Nagaon is expensive and time consuming, he says, and money and time are two things his family are strained for after their futile legal battle in the high court.
The notice board in the office of the jail superintendent of the Goalpara district jail that houses the Goalpara detention centre. It clearly shows how overburdened the jail is in terms of capacity.
The 2,000-plus detainees in Assam’s six detention centres for foreigners are housed ‘temporarily’ in jails in Goalpara, Kokrajhar, Silchar, Dibrugarh, Jorhat and Tezpur. Detainees are categorised into two distinct divisions. The first, declared foreigners (DFs) like Das, are people who have been declared foreigners by FTs due to the lack of documentation to prove their nationality as Indians. Such declarations are made under various laws including the Foreigners Act, 1946 and the Foreigners (Tribunal) Orders, 1964. They are about 800-900 in number.
The second category is convicted foreigners (CFs), who are self-declared foreigners arrested for the lack of travel documents or for crimes. Such people are detained after their incarceration period in various jails is over and are kept in the centres pending deportation, and they number about 1,100-1,200. Both categories of detainees generally share the premises with regular inmates in the six jails that house the detention centres. Detainees can be distinguished because they are not required to wear inmate’s uniforms, but everything else, from bathrooms to barracks to food to common areas, is shared.
Like inmates, detainees are provided with one soap to wash their clothes every month, besides bedding, a blanket and a mosquito net in the Goalpara centre. Other toiletries and clothes can be bought, but as detainees legally cannot earn a wage, they have to depend on family members and well-wishers for that. “Most detainees are from poor backgrounds,” the jail superintendent says, “and their families cannot afford to come visit them, forget providing them with new clothes or toiletries. There are no NGOs working for them here either, so they mostly get such things from good samaritans”
This gap is partially filled by people like Abdur Rehman, who owns a coal business in Goalpara. Abdur says he gifts clothes and toiletries to detainees and inmates alike on festive occasions like Eid, though he is slightly surprised by me calling him up. “Me and a few of my friends have been involved in charitable work for 15 years, and we did not really see our work with inmates and detainees any differently from what we do for orphaned or poor children till you called me. You are the first journalist to call me asking about it, so I have never really thought of a reason behind helping the detainees.” I ask him about how he started donating things to detainees, whether it was triggered by the detention of a relative or an acquaintance. “No no, it’s just part of the charity work we do.”
The Goalpara jail houses one of the oldest detention centres in the state, with 247 detainees (192 of who are declared foreigners and 57 – 54 Bangladeshis, one Pakistani, one Afghan and one Myanmarese) convicted foreigners – and 212 inmates. All detainees are male, as female detainees are now housed in the Kokrajhar district jail, though the detention centre began in 2009 with both male and female detainees. Detainees are technically supposed to be housed in separate detention camps and not in jails, but Assam lacks any such infrastructure, though a dedicated detention camp is coming up in Goalpara. The large number of detainees is a severe strain on the jails, as the Goalpara DSP (border) points out. “The Goalpara district jail has a capacity of 370 people but is handling 459 persons in total, more than half of whom are detainees.”
Today, the whole process of finding suspected foreigners, making them undergo a trial and finally detaining them is groaning under the sheer numbers involved. “Between 50,000-52,000 declared foreigners are missing in Assam as of November 2017. This is out of a total 93,000-plus people who have been declared as foreigners by the tribunals in the state since 1985,” says R.M. Singh, director general of the Assam Border Police Organisation. This figure includes investigations into the list of doubtful voters (‘D’ voters) put forward by the Election Commission as well as cases initiated by the border police on suspicion.
Leaning over his well-organised table, the DG points at two whiteboards in his office outlining the extensive exercise. “We have come up with over 500 task forces all over Assam for the detection and detention of the 50,000-plus missing declared foreigners, but it is an extremely difficult task. The pace of the cases and various other complications helps such persons hide or flee their home districts as soon as they are declared as foreigners by the FTs,” says the DG. There are another 1.7 lakhs cases pending in the 100 tribunals all over Assam, the Guwahati high court and the Supreme Court.
This scale of processes for determining citizenship is at present unique to the state of Assam, and its roots go back to the anti-foreigners movement of the 1980s. The movement was sparked by the fear of large-scale immigration from Bangladesh and the changes this would bring to the demography and cultural identity of the state. A number of students’ organisations like the All Assam Students Union (AASU) and other people’s groups spearheaded the movement.
The Assam Movement, as it came to be known, ended with the signing of the Assam Accord and led to amendments in a few laws including the Citizenship Act, 1955. The amendment recognises all persons entering Assam from the erstwhile East Pakistan after March 25, 1971 as well as their descendents as illegal immigrants or foreigners. Those who had been living in Assam from before January 1, 1966 and their descendents, conversely, are Indian citizens, while those who entered between January 1, 1966 and March 25, 1971 were to be disenfranchised for a period of ten years and thereafter given full citizenship rights.
Those found to be illegal immigrants or foreigners were supposed to be deported back to their ‘homeland’, recognised as Bangladesh by Section 6(A) of the Act. Moreover, the late 1990s saw the Election Commission complaining about the presence of thousands of ‘D’ voters in Assam’s electoral lists.
But the numbers are not the only issue here. “Most such cases are fought under the Foreigners Act and the Foreigners Tribunals order, 1964 which means the onus of proving citizenship lies on the person accused of being a foreigner. So a non-production of documents very easily leads to declaration as a foreigner, never mind explaining the loss of documents to natural disasters etc. A lot of these judgements are even passed ex parte, which means that the learned tribunal has not heard the person accused of being a foreigner in court before passing the judgement,” says Aman Wadud, a lawyer who regularly fights such cases in the high court and FTs.
I met Wadud and Syed Burhanur Rahman, another lawyer who regularly fights such cases, in Rahman’s office. The two have fought a few cases pro bono, without payment, in the past. A file on their most recent case was spread out over Rahman’s desk, he was making final changes to a few documents he had to submit the same day. “A lot of times documents are provided by the accused but due to simple mistakes in recording of names and problems in calculation of age they are rejected by the tribunals and the courts,” says Rahman.
“You must understand that legacy data must go back to before 1966, and such documents have a high rate of inaccuracies. A surveyor sometimes would record, for example, his (elder) daughter’s name in the pre-1966 documents,” Wadud explains, pointing at Rahman, “as Syed boro gedi (Syed’s elder daughter) and his younger daughter’s name as Syed chuto gedi (Syed’s younger daughter), which would definitely not match later on with real names of his daughters. Or he could record the date of birth wrong. All these tiny mistakes can today lead to a person being declared a foreigner, stripped of his citizenship and detained.” How many such cases they come across, I ask. “The majority are of this kind. Overall they will run in the thousands.”
“The process is deeply problematic. The onus of producing proof is already burden enough on the accused, and most of these cases involve poor villagers who find the legal proceedings extremely complicated and expensive” explains A.R. Sikdar, a senior lawyer in the high court. Sikdar is well known in the Guwahati legal circuit for his two decades of work on cases of disputed citizenship; he has also published a few books on the topic.
“Disputable or inaccurate recording of legacy details is a pretty common reason for declaration of a person as a foreigner, but then you also have the issue of flaws in the legal functioning of tribunals. There have been instances of tribunals overlooking properly furnished and accurate information.” says Sikdar.
“Also, a lot of times the tribunal member (the presiding officer who judges cases and pronounces judgements in the tribunals) herself acts like the prosecution when the government does not have a lawyer representing the case. Though the member is allowed to question the parties involved, cross-examination should be the work of the prosecution. The exercise of the prosecution’s duties by the tribunal member is an anomaly, only recently have courts started taking notice of this and have started assigning government prosecutors.”
Sikdar talks effusively about such issues in his book Quest for Justice, where he gives examples both of simple factual anomalies leading to people being declared foreigners, as well as allegations of erroneous proceedings during investigation and hearings.
Wadud says such errors are rather commonplace. “Of the 50-plus cases that I have fought in the FTs, I have never lost one. Any thorough lawyer will not find it difficult to win, and yet we see a lot of losses on easily manageable grounds and errors.”
Even in cases where it is proved that a person was declared a foreigner because of faulty methods and therefore illegally detained, there is never any compensation provided. This was what happened with Moinal Mollah.
Mollah, a daily-wage labourer, has seen his story appear in multiple news articles, but never received a paise of compensation from the government, nor an apology. A native of Barpeta district in Assam, Mollah was declared a foreigner ex parte even though all his family members were declared Indians. He was kept the Goalpara centre for nearly three years before his case was fought by Wadud and Rahman pro bono in the Supreme Court – and they won.
“During my detention, I had lost all hope. My wife and children were supported by my brother and parents with great difficulty, and our lawyer before Wadud had charged us a lot of money,” he says. His brother, Ainal, is also a daily-wage labourer at a book-binding factory.
“The system in place for detection, detention and deportation is very harsh, and it almost always targets poor, illiterate persons.” says Gulab Mazumdar, president of the Social Justice Forum, a people’s group that works for people suspected or declared foreigners. “Nowadays, declared foreigners are at least detained, but before 2013 they would be ‘pushed back’ into Bangladesh directly after arrest. We have heard of persons being left in a no man’s land area, like an unfenced area or the bank of a river, as pushing the self-claimed Indians back into Bangladesh would be protested by the Bangladeshi authorities.”
When asked about the ‘push-back system’, the DG border police expressly denied abandoning people. “We did have the ‘push-back’ system in place before 2013, but these allegations of abandonment are baseless. Between 1985 and 2013, over 898 declared foreigners have been pushed back, as well as 27,000+ convicted foreigners” (self-declared Bangladeshi nationals). To my knowledge, it was an arrangement between the border authorities on both sides; the tribunals would order the ‘push back’ of a person and we would take that person to the border and hand her over to the Border Security Forces (BSF) for the push back. The system was stopped in 2013 because it was obviously faulty and a diplomatic system was put in place.”
I ask him how the Bangladeshi authorities accepted the 898 declared foreigners, given that a lot of them claimed to be Indians. “There was an arrangement in place, though you will have to ask the BSF for details as it was them who conducted the push back.”
The Inspector General, BSF for Guwahati frontier was unable to talk to me at the time of filing this report due to prior engagements, but the piece will be updated as soon as he does. A email on this issue to Fariduddin Ahmed Chowdhury, secretary with the Security Services Division of the Bangladesh home ministry, received no reply.
The border police, meanwhile, is increasingly amping up operations to detect and investigate suspected foreigners. “We have started making a database of all suspects right from the beginning of our investigations so that the 50,000+ missing number can be cut down at the soonest,” says the DG, border police.
But Wadud looks at things differently. “Nearly 13,000 people have been declared foreigners in Assam in the last one year. Given that a lot of the process of declaring a person (to be foreign) still has quite a few legal and practical drawbacks, the overall issue has taken a quantum leap.”
Even if all the 50,000-plus missing declared foreigners are all caught along with the future declared foreigners, there isn’t enough space in Assam to detain them. The new detention camp coming up in Goalpara, the only one that has been allotted land at the moment out of the many that were planned will have a capacity of 3,000.
Then there’s the other plausible and often-quoted solution: deporting them to Bangladesh, their country of origin according to Section 6A of the Citizenship Act.
“Well, that will be difficult. The declared foreigners are self-claimed Indians, so it won’t be legal to push them into Bangladesh,” says Kazi Muntashir Murshed, assistant high commissioner (AHC) of Bangladesh to India. I meet the AHC in their new three-storey consular office in Guwahati. “Besides, you are talking about tens of thousands of people. Decisions surrounding such numbers will require agreement at the highest political levels.”
I ask him what the status of discussions between the two countries regarding declared foreigners is right now, given that the topic has been at the centre of political campaigning in Assam for the last four decades – so important even the prime minister promised to work towards freeing the state of all foreigners. “To my knowledge, there have been no discussions or requests regarding declared foreigners from India. I am based in the Guwahati mission so I would get notified, but there has been no such intimation yet,” says the AHC.
So the Bangladeshi mission has not worked around declared foreigners yet, but it does keep getting requests regarding convicted foreigners (or self-claimed Bangladeshis, as the consul calls them). The AHC says that the increasing trade relations between Assam and Bangladesh was a major reason behind opening up the new consular office, but other duties seem to have taken centre stage.
“I am continually visiting prisons and interviewing self-claimed Bangladeshis to ascertain where in Bangladesh they are from and hasten their return. These are Bangladeshi nationals who crossed over into India illegally or committed crimes here. Generally, post the completion of their sentences they are detained in detention camps until deportation. But the deportation process is still extremely slow and inadequate for the number of persons lodged in the various centres. That work has now become top priority for me.”
I talk to Aziz Ul Haq, one such convicted foreigner in the Goalpara detention centre.A resident of Halodiapalong, Bangladesh, Haq was a daily-wage labourer and crossed into India through a porous border area in the state of Tripura in 2009.
“A ‘contractor’ had offered me a well-paying job in the state of Uttar Pradesh. But within two days of crossing over the Railway Police caught me while I was travelling to Lumding (Assam) from Agartala (Tripura),” he recounts. A court at Silchar, Assam sentenced him to six months imprisonment for illegally entering the country, after which he was moved to the Goalpara centre pending deportation. “I have been here for nearly eight years since 2010, without earning a single paise or a single day of parole. No one from the Bangladeshi embassy has met me yet.”
Right before my interview with Haq, an inmate incarcerated for life for murder had walked into the room to sign on a register. “He has been granted parole for a month and a half. He’ll be visiting home for the festivals,” said the jail superintendent. The DSP added, “The man has already spent 11 of his 21-year-long sentence. You will be surprised to see the change in him, Mr Saha. A few years of incarceration can truly change a man.”
An ominous gloom shadowed my interviews with the two detainees, one a declared foreigner and the other convicted. It was the same gloom I had felt minutes ago, passing a memorial to the Assam movement on the road to Goalpara from Guwahati. The movement had seen an incredible 855 protester deaths in about six years, now considered martyrs of the movement. But the actual toll was much higher, and this number does not include the many riots that tore the community apart, like the Nellie massacre of 1983, where an estimated 2,000-plus people were killed. The knottiness, here, was inherited.
There is a sense of defeat at the centre too, and the frustration has boiled over a few times. November 13 and 14, 2017 saw a hunger strike by the convicted foreigners, demanding urgent action on their return to Bangladesh, before the DSP came and quelled the protest, promising he would do all in his power to change things. “But there is only so much I can do. At least the convicted foreigners can turn to the embassy, unlike the declared foreigners.” he adds.
I ask the DSP of instances of mental health issues among the detainees, and he says they take the detainees to the district hospital or to the Guwahati medical college hospital when things get too bad. “But the assigned doctor and psychologist will be able to tell you better.”
“We do take them to the local psychiatrist whenever there is a severe case,” says Dr Noorjahan Ahmed, resident doctor at the Goalpara jail. “A committee of four specialists including a psychiatrist would visit the hospital to diagnose the inmates and the detainees, but that stopped three months ago.” Answering a question on whether cases of depression and anxiety are common, she says that she has come across such cases, but cannot ascertain numbers.
“The mental health services in rural areas in Assam are in horrible conditions. When general civilians are not getting access to treatment of mental health issues, even without specific numbers you can estimate the condition of present and ex-detainees,” says Raju Narzary, executive director of the North East Research and Social Work Network (NERSWN), an organisation that conducts mental health camps in rural Assam. In Kokrajhar district, these camps often see visits by jail authorities from the Kokrajhar women’s detention centre, the only one in Assam for women.
The Assam Human Rights Commission seems to have little idea too: they have never received any complaints with regard to any detainee/ex-detainee, nor do they know any organisations working with such persons. There is just one report on a visit to assess such camps from 2016, but that report is still not public.
“There is no NGO specifically working with detainee-related issues around here, though of course there are issues. If you want to find out, you will have to come down for a visit,” says Pratibha, a member of the NERSWN based in Kokrajhar. Due to time restrictions, this reporter was unable to visit Kokrajhar.
Hidden away behind a line of buildings on the Guwahati-Shillong road (popularly called GS road), less than 20 m from the crowds overflowing the streets on Christmas day, now ex-detainee Mollah shows me the one square feet of sitting space he occupies in the book printing factory he works for. Situated opposite an arterial drain from the side and back of the humongous Central Mall, the factory mostly prints books in use by the Secondary Educational Board of Assam.
“I thought I would never get out after losing the case the first time. The police would sometimes come ask me my address in Bangladesh, but I would always maintain that I am an Indian,” he mumbles while coating his fingers with a dole of glycerine to sort out freshly-printed answer sheets for the state board examinations.
Mollah earns between Rs 300 and Rs 400 per day working in the factory, and sleeps and eats with another 50 workers in the upper floors of the factory. They share about five toilets. “The earning would be adequate but the years of detention and fighting the cases have left us poorer. There is not even any talk of compensation,” he says.
Our conversation is disturbed by a huge slicing machine. The machine cuts the sides off freshly-printed textbooks. I pick one up. It is a science textbook for the sixth standard. I ask him if they print textbooks for all classes.
“I think so. I cannot read. What standard is that?” he asks me, pointing at the textbook in my hand. “Science textbook for class six,” I answer. “Oh yes, they print textbooks of all subjects.” he remarks. “Science, English, Assamese, history…” he adds, and then pauses for a second.
“…politics,” he ends with a smirk.
Soumyajit Saha is a freelance journalist.
The article appeared in the Wire India on 10/2/2018