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.

Sitting Ducks: A Beemapalli reflection

Sitting Ducks: A Beemapalli reflection

Bobby Kunhu

It is with the utmost hesitation that I write this. Hesitation because I think I have not understood, nor have many others who have written about the May police firing in Beemapalli. Not that there is any ambiguity in anybody's (who has visited the place) mind about the specific incidents that took place on 17th of May this year. As a part of a small fact finding team trying to tie up its report, I'd rather use this space to raise contextual questions about the police firing that have been haunting me since I heard the first reports of the firing.

At the outset, I need to assert as a human rights lawyer (and independent of the socio-economic realities of Beemapalli) that what happened on May 17th in Beemapalli is one of the worst possible crimes - where lives of 6 people were taken by forces of the state, without following the procedure established by law - in other words extra-judicial murders - and calling it by any other name is as offensive as the incident itself. In my mind, the incident involves the police allegedly firing 50 rounds of bullets at a gathering in a coastal village. The facts are that 43 people were injured and 6 died in the police firing. The fact is that all the people who died and were injured were Muslims. The fact is that there is no credible evidence shown that the crowd fired at was violent or provocative. The fact is that there is no damage reported from the police side. The fact is that the police bypassed the usual procedures that need to be adopted before a firing. Having made that assertion, let me move on to the first set of concerns that have been haunting me.

Silent Media, Silent Opposition

The first of these is the general social and political reactions to Beemapalli firing. In fact one of the factors that led me to take the initiative in organising a fact-finding was the deafening silence that followed the violence in Beemapalli. It looked like that only "Muslim" organisations were interested in taking up the issue. Even the political opposition did not seem like wanting to capitalise this serious lapse in governance. When I tried prying into the possible reason, a newspaper report lauding the media for acting sensibly by maintaining silence and thereby averting a communal issue was literally thrown at my face. (The report was titled, Signs of a Mature Media, Opposition).

But was this violence communal to start with? The victims of the violence did not seem to think so - despite all of them belonging to one single community!!

Interestingly apart from the high profile Lavalin case, the national and Kerala media was filled with stories of racist violence in Australia around this time. Then how did such gruesome violence fail to capture collective social imaginations? The only plausible answer that comes to my mind is the identity of those killed and injured in Beemapally - they were all from fish worker Muslim community - and do not have messiahs touting their cause.

There are other reasons as well for my arrival at this hypothesis. The first being that in the past couple of decades state violence in all its manifestations is being directed against traditionally and structurally marginalised groups. Formal expressions were demonstrated in Muthanga, Chengara and now Beemapalli. Insidious and subtle expressions through changes in reservation structure, discourse on terror used to de-legitimise communitarian political expressions and so on.

Dangerous Activities

Interestingly Beemapalli, being a Muslim ghetto has figured many a time in police narratives on terror. It would take another full essay to analyse this. It is in this context that couple of weeks after the firing, an intelligence report dated before the firing was leaked to the press. This report warns the state police of dangerous and illegal activity in Beemapalli and Malappuram. Much to my amusement, what the newspapers omitted was that this "dangerous" activity is the trade in pirated CD/DVDs that Bheemapally is notorious for. Interestingly, this has been subsequently used to close down this trade and increase police presence in Beemapalli. One of the speculations that was aired as a reason for the extreme violence from the police firing was to gain a foothold into this lucrative terrain.

Claims on Coastal Resources

The next reason is rooted in the socio-economic conditions prevailing in coastal areas generally and Beemapally specifically. The Indian coast has been a simmering pot of discontent for sometime now - aggravated especially after the tsunami. This discontent is rooted in multiple contestations for coastal resources and fish-worker resistance articulated through their right to the coast as a common property resource. I have been witness to a number of concerted efforts to divide the coastal community during the tsunami rehabilitation process. Some of these experiences have been documented as well. These contestations are grounded in the fact of the vulnerability of the coastal communities and Dalit and Muslim communities amongst these are even more vulnerable. Beemapally violence needs to be seen in this context as well. Portrayal of the police violence in Beemapally as communal riots instigated by a Beemapally mob by the police and a section of society including segments of the Catholic church subtly fails to acknowledge that the neighbouring hamlet Cheriyathura is inhabited by Latin Catholics. This reading is inherently dangerous as it pits two similarly placed vulnerable communities against each other.

Two Beemapallis and a Free Run

Further, Magalene, a fish worker leader confirms my suspicion that social indicators in Beemapalli are much worse compared to neighbouring fishing hamlets. She points to the fact that there are two Beemapallys in existence - one glossy Beemapally made of the DVD/CD trade and the other fish-worker hamlet which lacks even basic hygiene and sanitary requirements. She also points to the abysmal female literacy and empowerment in this hamlet in support of her claim. This also perhaps points to a hegemonic social apathy towards people that are forced to live on the fringes - a certain lack of value for their lives. This also could have contributed to the unchallenged free run that the Police is having with their version of the violence and attempts to portray their violence as a communal clash.

My next set of concerns is regarding the impunity with which the Police framed a community as communally volatile and in all probabilities is getting away with it. In his report to the government, DGP Jacob Punnose claims that the police fired 50 rounds and there are 43 injured and 6 dead - indicating that police fired to hit. This also dispels claims that several rounds were fired in the air. Of course there are other unsubstantiated claims in DGP Punnose's report. But what gets my nerve is the shoddy framing that the police has indulged in, without having done any homework whatsoever - is this born out of a confidence that the Police force would get away with murder since the people killed are fishing Muslims? The confidence of the police seems to be bolstered by the collective silences and framing of Bheemapalli as a dangerous area mentioned above. It needs to be remembered that DGP Punnose is spearheading the demand for Police reforms and reducing political control over the police. In the process many vital questions remain unanswered, including questions that would legally place the violence as cold-blooded murder within criminal jurisprudence.

The silence on Beemapalli violence opens many cans of worms - including the deeply hegemonic nature of Kerala's responses to its marginalised, latent communalism within the administration and media and so on and so forth. The responses to Beemapalli has left me perplexed, especially after having visited the place. But, having spend considerable time and energy on conflict situations, my sense is that Kerala might be sitting on a social time bomb, if it continues this lackadaisical attitude towards its marginalised population.

I believe Beemapalli calls for a classical "secular" response and honest peace building exercises that would instill a sense of confidence in Beemapally residents that they are not being persecuted - but that might be a difficult job and would call for extreme commitment.