Assam: Human rights and detection and deportation of foreigners

Taking serious note of the failure of the government machinery to detect and deport illegal Bangladeshi migrants from Assam even after determination of their citizenship status through the legal process, the Gauhati High Court has asked the State and Union governments to clarify how such cases should be dealt with.

Gauhati High Court at Guwahati, Assam

“The Union and State governments in respective Home departments are directed to clarify in case of failure to deport the declared foreign nationals to their country of origin, how their cases will be dealt with. The authorities in the State and the Union Government shall bear in mind that more than 40 years have gone by since the cut-off date, i.e., 25.3.1971 was fixed for detection and deportation of foreign national (illegal Bangladeshi migrants),”Justice B K Sharma said in his order in connection with cases WP (C) No. 4601/2011 and WP (C) No. 642/2009. This is reported in the Assam Tribune on 19 June 2012.

It is true that the attitude of both the governments is indifferent to the problems of deportation of the illegal immigrants living in Assam. The indifference and insensitivity has led to a situation where laws and rules governing the process are vague, inadequate and inefficacious.  It, in turn, has created a de facto and de  jure regime which coupled with the prejudices of the implementing officials facilitates witch-hunting of people belonging to a particular linguistic community living for centuries in Assam while failing to detect any actual foreign national and deport her/him legally to the country of her/his origin. 

The processes of detection, detention and deportation of ‘foreign nationals’ being applied in Assam not only violate international law and human rights of the suspects but also threaten about 2 million people with being rendered stateless. This is due to many factors including the presumption that anyone in the state who speak the Bengali language and belong to the poorer strata are an enemy aliens  and a member of the troops of cultural aggression of Assam by Bangladesh. They do not deserve any rights and can be rightfully deprived of their human rights. 

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) 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 6% in such cases so far. Marking D in name of a voter suspends his all citizenship rights for indefinite time and now about 200 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 works 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 ...

One is not against detection and deportation of foreigners from Assam and India. On the contrary one believes in the right to return of all persons who are foreign nationals living as refugees or immigrants (legal or illegal). The concern is over the processes employed. As these processes are not in conformity with the due process principle and international human rights standards they provide tools to harass genuine citizens on one hand and on the other hand, violations of basic human rights of all persons involved.

Attitude of both the central and state governments is indifferent to both the questions of deportation and deportation under due process and approach of the judiciary is also deplorable as the utterances they make time and again seem to be insensitive to the principles of liberal jurisprudence and human rights. For a permanent solution of the problem the approach must change.

PUDR condemns arrest of Assam activist

The People's Union For Democratic Rights (PUDR), a national rights organisation based in New Delhi, strongly condemned arrest of an activist in Assam saying that it is an attempt of the government to intimidate the anti-dam popular movement into silence and submission.

Activist Mr Pallab Barbora was arrested from his home in Merapani of Golaghat district in Assam on 3 June 2012 and has been remanded to ten days custody of National Investigative Agency (NIA) on 6 June. The NIA alleged that he had facilitated the spread of Communist Party of India (Maoist) in the state. The CPI (M) party is an organization banned by the Indian government. Security agencies also alleged that he was advocating for the intensification of the popular anti-mega-dam movement in Assam.

On the contrary, the PUDR claimed that Mr Barbora was actively involved in numerous forums over the years highlighting issues of violation of rights. He was a long associate of the Manab Adhikar Sangram Samiti (MASS), an Assam-based human rights body. Recently he was active in the anti-mega-dams movement led by Krishak Mukti Sangram Samiti (KMSS) and others. It is a commonplace for every keen observer of the movement against mega-dam that Mr Barbora was instrumental in forming the Mega Dam Resistance Forum, according the PUDR.

KMSS and AASU demonstration against dams in
the first week of September 2011 (Photo- sinlung.com)

The rights body also said that giving out two statements by the security agencies in such a manner that one claimed him to be a kingpin of maoist activities in Assam and the then saying that he is instrumental in anti-dam movements has an effect of making the activities of organizing a democratic protest look illegal and illegitimate, because he is already charged under the Unlawful Activities Prevention Act (UAPA) and various other sections of the Indian Penal Code (IPC).

"The Government, in order to forcefully pursue its corporate led development policy, is using police and other para-military forces to silence the democratically organized protests. The organisers of such protest movements are regularly being framed in the most draconian laws so that the anti people projects could be implemented to protect the interest of the big corporate. The government is regularly projecting these organisers as 'terrorists' or 'Maoists' by citing strange and unverifiable 'intelligence'/'police' sources. By invoking UAPA and by using the stick of association with 'banned' organisation it has become easy for authorities to damn people's protest. Even the judicial process is being used to intern them indefinitely in the prison and thus silence their voice of descent. Therefore, arrest of Pallab Barbora is obviously an attempt to intimidate the anti-dam popular movement into silence and submission" the PUDR said in a release signed by its secretaries Mr Paramjeet Singh and Ms Preeti Chauhan.

Originally published in the Newsblaze at http://newsblaze.com/story/20120610102917lask.nb/topstory.html

Investigation ordered into Assam trafficking racket

The National Human Rights Commission (NHRC) taking strong exception at the flourishing flesh trade in red light area in Silchar, Assam which was started for British soldiers during the World War-II expressed surprise at its continuous existence and asked the authorities to conduct an investigation and bring to book the persons who run this human trafficking trade.

The NHRC was hearing cases of 3 victims at its Guwahati camp sitting on 28 May 2012. The commission recommended the state government of Assam to provide these three victims with a compensation of Rs 100000.00 (one lakh) each. The victims were rescued by Agnes Kharshiing and her organisation Civil Society Women Organisation of Mehgalaya.

The victims belonged to the Mehgalaya state and hundreds others like them are brought here from other states of North-East India and possibly also from neighbouring countries like Bangladesh, Myanmar, Nepal etc. It is estimated that at present about 1200 victims are kept captive and forced into prostitution.

According to Ms Kharshiing, Assam police is hand in gloves with the traffickers and not at all serious about their duties of preventing human trafficking. Often they act as partners of the traffickers, she claimed. Social activists in Silchar say that the police is not doing their jobs it is because influential people with political connections are behind this trade of human beings.

The intervention of the NHRC revived some hope in the civil society that now the authorities may take actions.

(Originally published in the Newsblaze and can be accessed at http://newsblaze.com/story/20120604103939lask.nb/topstory.html)

Overview of human rights in India in 2012

This brief report on human rights in India titled Human Rights in India: Status Report 2012 gives a general overview of the most critical human rights issues in India today. It has been drafted by the Working Group on Human Rights in India and the UN (WGHR), a platform of some of Inida’s important human rights groups, as a background document to assist in the preparation of India’s second Universal Periodic Review (UPR) that took place in Geneva on 24 May, 2012. 

It is amply evident from the report that much remains to be done to improve the human rights situation in India. The scope of the UPR is enormous as it covers all recognised international human rights. If we take almost any of these human rights, the situation inIndiaremains challenging; yet the scope for improvement is immense. If the required positive changes are to take place, however, a radical change in national and regional actions by governments at all levels is necessary. The report highlights some of these required changes. (Read more or downloaded from here)

Dr. Rumee Nath: Conversion, religion and politics

Assam Secretariat

People of Assam, particularly those living in southern part, have been very tense for some days. Ever since gossip about the conversion of a sitting member of the state legislative assembly (MLA) from her religion of birth Hinduism into Islam has started doing the round in the media it has become a pre-occupation of sections of the people belonging to both the religions to fan the controversy and reap some political or other dividends. Particularly, it has come to light that some groups belonging to the Hindu right are making not so surreptitious efforts to poison peaceful co-existence between the communities over the personal choice of the MLA.

A little known Silchar based group called Adhibakta Parishad is making desperate efforts to create communal tension in Barak valley (South Assam) following the reported conversion of sitting Congress MLA Dr Rumee Nath into Islam and her marriage with a Muslim boy while her previous marriage subsists. The group has smelt ‘Love Jehad’ behind her actions. They are alleging that ‘Love Jehad’ which, according to them, is a new ploy of the Islamic fundamentalist-terrorist to compel non-Muslim women to embrace Islam, might be instrumental behind her conversion and marriage. They are also dragging into it an Assam Minister Siddique Ahmed. (See a news report here: http://www.sentinelassam.com/cachar/story.php?sec=2&subsec=12&id=118671&dtP=2012-05-26&ppr=1#118671)

Convert MLA Dr Rumee Nath with
her young daughter (before she
abandoned the young
girl for a new husband)-
Photo-- manipalworldnews.com

What Dr Nath did is entirely her personal choice. She is a sitting MLA of the ruling party and a daughter of a most successful businessman in the valley. There is no question of element of coercion working on her. The term love-jihad is coined in the south to condemn and communalise any conversion to Islam of Hindu girls out of free will and choice that is followed by her marriage with a Muslim boy.

Every citizen of India has the fundamental constitutional rights to freedom of thought, conscience and belief. S/he also has a right to practise, profess and propagate any religion of her choice. It obviously includes the right to convert into any other religion or non-religion from the religion of birth.

However, the deeds of the MLA can at best be called immature and incorrect. They are spiritually, politically and also legally incorrect.  But they are not incorrect in themselves. Conversion and re-marriage by themselves are legal and in some cases may appear to be desirable for the individuals concerned. In this case, the rashness with which she has accomplished them made them incorrect and immature.

Spiritually incorrect, because the intention behind her conversion appears not to achieve any spiritual upliftment, rather she wanted to deceive the law, particularly the prohibition of bigamy in section 17 of the Hindu Marriage Act, 1955 and Section 494 of the Indian Penal Code, 1860 which punishes bigamy.

It is also politically incorrect because it gives chance to the right-wing opposition to poison the political and social environment.

I do not want to go into the details of spiritual and political correctness and incorrectness of her acts here.

Let me just briefly deal with the legal position of her reported deeds.

As it involves reported conversion into Islam, it would be good to examine the Islamic law first.

According to my friend Maolana Joynal Abedin, when a non Muslim married woman becomes Muslima and her husband remains non-Muslim, the latter will be proposed to adopt Islam by Qazi. If he accepts this proposal his wife will remain his wife. On the other hand if he rejects the proposal Qazi will declare separation between them. This separation is a Talaq according to Imam Abu Hanifa and Imam Muhammad. (FATHUL QADIR).

He also says that proposal of embracing Islam stated in this Law of Shariah is applicable in Islamic country only. In non Islamic country, which may be Darul-harb or Darul-aman, when arises situation like this, husband will not be proposed to take Islam. Because, there is no Qazi to propose and declare separation in such a country. After getting converted into Islam a non-Muslim married woman in non Islamic country while her husband remains non-Muslim separation will take place between them certainly as per Shariah Law. But it is not in the moment of conversion. It will take place after three menstrual period if she is in that state. If she is pregnant, separation will take place after delivery, otherwise after three months. Before separation no Muslim man can marry her according to Shariah Law.

For a valid conversion it is also required that the new convert should hold herself to the world as a Muslim. In this case, according to the media report, conversion and marriage took place at a time in a single sitting. The new convert, thereafter, denied the facts of conversion and marriage in public for some days. She has not held herself as a Muslim to the world soon after her conversion.

More over, the statement of Islamic law made above may be the position of pure Islamic law. However, it is to be kept in mind that it has only moral and persuasive force and no legally binding force. The part of Islamic law applicable in India as Muslim personal law is a different thing. That part of Islamic law which deals with certain personal matters including marriage and divorce as modified by the Parliament of India from time to time and as understood, interpreted and applied by the Supreme Court of India is enforced in India as the Muslim personal law by virtue of the Muslim Personal Law (Shariat) Act, 1937.

The Supreme Court and other courts in India interpret and apply Muslim personal law in the light of the constitutional and legal framework of the country. Because events in human life and actions of human beings are always interdependent and inter-connected and can not be completely separated. The same action that falls within the domain of personal law may also constitute a crime under the general penal law of the country. The civil aspect of such and action of person who is subject to the Muslim personal law will be dealt with under this law and the criminal aspect will be dealt with under general criminal law. Therefore the personal aw can not be seen and applied in complete ignorance of the broader constitutional and legal scheme of the country.

Having said that let me go to the point in hand. The point seems to be the status of a person in marriage and in other matters who was non-Muslim and married and got converted into Islam and then re-married another person. A similar case was extensively dealt with by the Supreme Court and a historic judgement was passed on 5 May 2002 in the case of Lily Thomas and Other Vs. Union of India and Others. [Citations are 2000 AIR 1650, 2000(3) SCR1081, 2000 (6) SCC 224, 2000 (4 ) SCALE 176 , 2000 (5 ) JT 617]

The bench was constituted by Justices R P Sethi and S Saghir Ahmed and the judgment was authored by Justice S Sghir Ahmed. It was a judgment on a review petition where the All India Muslim Personal Law Board and the Jamiat Ulema Hind etc also took part.

Rumee Nath with her new husband.
Photo-- thepunjabkesari.com

It has been held that "The concept of Muslim law is based upon the edifice of Shariat. Muslim law as traditionally interpreted and applied in India permits more than one marriage during the subsistence of one and another though capacity to do justice between co-wives in law is condition precedent. Even under the Muslim law plurality of marriage is not unconditionally conferred upon the husband. It would, therefore, be doing injustice to Islamic Law to urge that the convert is entitled to practice bigamy notwithstanding the continuance of his marriage under the law to which he belonged before conversion. The violators of law who have contracted the second marriage cannot be permitted to urge that such marriage should not be made subject matter of prosecution under the general Penal Law prevalent in the country. The progressive outlook and wider approach of Islamic law cannot be permitted to be squeezed and narrowed by unscrupulous litigants, apparently indulging in sensual lust sought to be quenched by illegal means who apparently are found to be guilty of the commission of the offence under the law to which they belonged before their alleged conversion. It is nobody’s case that any such convert has been deprived of practicing any other religious right for the attainment of spiritual goals. Islam which is pious, progressive and respected religion with rational outlook cannot be given a narrow concept as has been tried to be done by the alleged violators of law.’

Under the Muslim Law one can avoid criminal liability for bigamy only when the previous marriage is also under the Muslim Law. In any case, in the instant case before the court, the conversion is feigned and not because of a change in real faith. About conversion, Justice S. Saghir Ahmad writes: ‘Religion is a matter of faith stemming from the depth of the heart and mind. Religion is a belief which binds the spiritual nature of man to a supernatural being; it is an object of conscientious devotion, faith and pietism. Devotion in its fullest sense is a consecration and devotes an act of worship. Faith in the strict sense constitutes firm reliance on the truth of religious doctrines in every system of religion. Religion, faith or devotion is not easily interchangeable. If the person feigns to have accepted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited.’

The Supreme Court of India

It was urged on behalf of the review petitioners that to prosecute a new Muslim for second marriage is against the provisions of Articles 21, 25 and 26 of the Constitution. No substance was found by the court in such argument. It has been admitted before the court that no personal liberty or religious freedom of the petitioners has been affected. Concern has been expressed that new converts can be punished without procedure established by law only on the basis of the admission of the second marriage. It is a mere suspicion without any basis. The Sarla Mudgal judgment (the review petition was against this judgement) has neither laid down any new law for the trial of persons contracting second marriage nor a new procedure to that effect. The person seeking conviction of the accused for a commission of offence under Section 494 IPC is under a legal obligation to prove all the ingredients of the offence charged and conviction cannot be based upon mere admission outside the court. To attract the provisions of Section 494, the second marriage has to be proved besides proving the previous marriage. Such marriage is further required to be proved to have been performed or celebrated with proper ceremonies.

It is further held that it is not proper to say that ban on the second marriage after conversion and prosecution of the convert under Section 494 IPC is against the provisions of religious freedom guaranteed under Article 25 of the Constitution. The Sarla Mudgal judgment has not violated any body’s right to conscience and right to freely propagate his religion. Freedom guaranteed under Article 25 is such freedom which does not encroach upon a similar freedom of the other persons. Under the Constitutional Scheme every person has a fundamental right not merely to entertain the religious belief of his choice but also to exhibit his belief and ideas in a manner which does not infringe the religious right and personal freedom of others.

The facts of the case were Smt. Sushmita Ghosh filed a Writ Petition No. 509 of 1992 in the Supreme Court and stated that she was married to Mr. G.C. Ghosh (now Mohd. Karim Ghazi) according to Hindu rites on 10 May, 1984. He asked her to agree for a divorce by mutual consent as he had converted to Islam and was to marry Ms Vanita Gupta (a mother of two children) in the second week of July. Smt. Sushmita challenged the second marriage of her husband as being violative of Article 15 (1) of the Constitution, she also submitted that Shri Ghosh had converted to Islam not being influenced by its teachings and ideals but only for the purpose of the second marriage. After conversion, he has done no overt act of being a Muslim. He has not mutated or got entered his new name in the official records. His conversion is simply feigned and sham. She had got filed the case through Smt. Sarla Mudgal, the president of an NGO Kalyani in 1992 which was decided in 1995. During the pendency of this case Mr. Mohd. Karim Ghazi had married Ms Vinita Gupta (now Hena Begum) on 3 September, 1992 and a son was born out of this second wedlock. Ms Sushmita filed the birth certificate of this baby in the Court in which the name of the father and mother was written as G.C. Ghosh and Vinita Ghosh respectively. She also filed copy of the voters’ list for the year 1994 in which the name of the husband and wife were mentioned as G. C. Ghosh and Vinita Ghosh. Mr. Mohd. Karim Ghazi had applied for Bangladesh visa. Ms Sushmita filed copy of that document also in the court in 1994 in which his name was written as Gyan Chand Ghosh and religion was mentioned as Hindu. The name of the husband and wife were mentioned as Mohd. Karim Ghazi and Hena Begum in the Nikahnama which was issued by Mufti Mohd. Tayyab Qasmi. Signature on it was legible as G.C. Ghosh. Ms Kapil Gupta, the mother of the bride had signed as a witness.

In view of this position of law of the land it is clear that the married non-Muslim woman who got converted to marry another spouse while her previous marriage subsists is liable to be punished under section 17 of the Hindu Marriage Act, 1955 and section 494 and 495 of the Indian Penal Code, 1860.

Section 17 of the Hindu Marriage Act, 1955 says: Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.

Section 494 of the IPC says: Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception.—This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Section 495 says: Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprison­ment of either description for a term which may extend to ten years, and shall also be liable to fine.