Tuesday, 11 September 2012

Assam violence: Sentencing victims to statelessness and starvation

Waliullah Ahmed Laskar* 

An estimated 1, 50,000 persons out of about 5, 00, 000 who have been rendered homeless in the recent ethnic clash in Western Assam districts, where 95 persons died and many disappeared and sustained injuries and loss of properties, are yet to be rehabilitated.

As one side of the conflict and dominant political groups in the state are clamouring for not rehabilitating them claiming that they are Bangladeshi infiltrators, the government has deiced to rehabilitate only those displaced people who has land documents. Till now such documents of only 11,066 families out of estimated 1,50,000 persons have been verified and reportedly found genuine and will be rehabilitated in 15-30 days.

It seems the government is committing grave injustice under sectarian pressure because the claims of these groups do not stand facts and figures. Sanjoy Hazarika, Director, Centre for North East Studies, Jamia Millia Islamia, that organised a seminar on the issue, said that immigration was a movement of labour force, and that there was “no great conspiracy” behind it as alleged by some groups. People move where they find work, he said.

There were large scale movements of people from other states of undivided India such as Bengal and Bihar in Assam during colonial period. After partition in 1947, although the movement has not stopped, number of the immigrants reduced to a great extent and reasons of immigration and the religion of the immigrants changed, at least to some degree. Most of the immigrants in post independence periods are Hindus fleeing for fear of persecution in Bangladesh. After the Indira-Mujib treaty of 1971 their numbers have also drastically come down as revealed in the census reports.

According to the Economic Survey of Assam 2011-12 released by the Government of Assam, growth of population in the state during 1971-2011 is 113.12 against the national growth rate of 120.77 during this period. If there is huge influx from Bangladesh in Assam then how come the national growth rate is higher? Is there a bigger influx in all other states also?

Birth rate among Muslims in Assam is comparatively high as the literacy rate is low and there is also some out-migration (though not very significant) of non-Bengalis of Assam in recent decades. It explains the marginal growth in percentage of the Bengali Muslim population.

A group of displaced vioence victims
However, still there is some movement of people from across the border. It is, as Mr Hazarika says, a movement of labour force, and that there is “no great conspiracy” behind it.

Now, if the Indian state decide to expel them without paying attention to the economic consequences as a sovereign state it has right to do so. But it certainly does not have the right to deprive all Bengali speaking Muslims of their citizenship and make them non-citizen subjects or render them stateless.

Due to conflation of legal and illegal migrants in the public discourse, arbitrary procedure of detection of foreigners and misuse of powers by the biased officials the bonafide citizens do not trust any move to expulsion of illegal immigrants and they put some resistance.

Even the regular procedure of detection and deportation, which the state has done away with in this case, is not consistent with the human rights norms and international law. The detection is being done by state government officials acting as election officers under the election commission of India and state police. In practice they do not follow any rules and based on information received from some non-official local persons, who work as personal informers to them, the election officials mark name of the concerned person with D (standing for doubtful) in the electoral rolls and/or police officers make reference to the foreigners tribunals. In both cases the concerned person is not informed and given an opportunity of being heard. Community leaders and rights activists say in most of the cases allegations are made against the concerned person to settle personal scores. According to them, this is the reasons for as low conviction rates as only about 6% in such cases so far. Marking D in name of a voter suspends his all citizenship rights for indefinite time and now about 150 thousand names in the electoral rolls are marked with D in the state.

Many people are detained in camps maintained for the purpose in inhuman condition after their name is marked with D in the voters list or a reference is made to the tribunal for the period of pendency of the trial which is indefinite in violations of Article 21 of the Constitution of India which says that no person shall be deprived of his life and personal liberty except in accordance with procedure established by law. The procedure of tagging names with D is nowhere established by law and arbitrarily making reference also contravenes due process principle.

The foreigners tribunals work under the Foreigners Act, 1946 and this law, in a fundamental departure from liberal jurisprudence, reverses the burden of proof (Sec. 9) and places the onus upon the person concerned to prove his citizenship. It thus replaces the cardinal judicial principle of presumption of innocence. Moreover, in many cases the tribunals do not even hear the accused and pass ex-parte orders declaring him a foreigner. It happens mostly in cases where the accused do not receive notice issued by the tribunal or can not hire a lawyer to represent him owing to his homelessness or indigent condition, as the case may be.  There is also no provision for appeal in the Act.

The process of deportation also violates international law relating to human rights and diplomatic protocols. It is described as follows: “When the people are forced across the border, all their possessions are taken away, along with any signs that may point to their Indian origin. They are warned that if they turn back, they will be shot as infiltrators. As parting advice, they are also cautioned to tell the Bangladeshi Rifles, if they are caught across the border that they are returning from some work or wedding from a particular village. Thus poor people, deliberately bereft of identity and citizenship, have no option but to again take the path of illegality merely in order to survive.”  Diplomatic protocols (under the Vienna Convention on Diplomatic Relations, 1961) require that when deportation takes place the embassy or high commission or any other representative of the state of the country of origin of the deportee be informed about the decision. This is never done in cases of deportation of supposed Bangladeshis. The extra-legal process followed by India effectively renders the people involved stateless and violates Article 15 of the Universal Declaration of Human Rights, 1948 (UDHR), particularly clause 2 which says: no one shall be arbitrarily deprived of his nationality ...

As a result the issue remains alive and every now and then plunges the people into mindless violence. Assam movement of 1979-85 that claimed thousands of lives including Nellie massacre of 1983 is an example. It also gives the politicians easy way of emotionally blackmailing both the sides. It has perpetually been hanging over the heads of both the sides like "the Sword of Damocles" leaning more towards Bengali speaking Muslims making them vulnerable to everything from linguistic, cultural and political dominance to making them weaker in the bargaining in labour market.

Now the government has deiced to rehabilitated only those displaced people who have land documents. Till now such documents of only 11,066 families out of an estimated 1,50,000 persons have been verified and reportedly found genuine. These families will hopefully be rehabilitated in 15-30 days. But this illegal step of measuring victimhood and sufferings as well as citizenship and entitlement of basic human rights on the land held by the person is unconstitutional and bereft of human compassion and moral compunction. The move will sentence most of the victims to statelessness and starvation since almost all of the victims are illiterate and landless labourers.

Regarding foreigners issue in Assam in reference to rehabilitation of the victims of Bodoland violence the points given below may be considered:

1. There is no dispute that victims living in relief camps are victims of the violence whether they are Indians or not.

2. There is also no dispute that they are human beings and as such they have basic human rights to which they are entitled irrespective of their nationality.

4. One of the parties to the conflict has alleged that some of the victims of the other party may not be Indian nationals.

5. There are reasons to hold that they all can not be Bangladeshis.

6. Point 5 necessitates detection of their nationality under such a procedure which is fair and is not harassing to the bonafide citizens.

Now what can be done in such a situation:

1. Acknowledge their victimhood. It entails rehabilitation and reparation.

2. Do not violate their human rights. It entails protection of life and dignity.

3. Detect Bangladeshis among them without harassing any bonafide citizens taking advantage of their victimhood, illiteracy and poverty.

4. After detection decide whether the labour force provided by them is needed and beneficial or not for Assam and weigh the gain or loss of deporting or retaining them.

5. If you decide to retain them document them and devise a regime where there basic rights are not violated.

6. In case you decide to deport them to their country do it under a process that actually works.

To really and actually deport them you have to do:

1. Dont conflate legal migrants who are bonafide citizens with illegal ones and take into confidence the former so they dont resist any move and it does not end up becoming a hot political issue.

2. Talk with Bangladesh and evolve a procedure of detection and deportation to which both the parties are agreeable. Otherwise Bangladesh will not admit that the person is its national and will resist any deportation. No country can forcibly push back any person into any other country. It is not practical.

3. Finally, actually deport them.

All other steps will perhaps not succeed to serve the purpose and will make more people victimised, society polarized, peace further jeopardized and some politicians will reap some votes and nothing more will happen except more corruption and more bloodbath.

*Writer is Director (Legal Affairs), Barak Human Rights Protection Committee (BHRPC), SilcharAssam

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