One of the biggest news stories in the last week was the case of Mohammad Sanuallah, a man declared to be a foreigner by a Foreigners Tribunal and arrested and sent to a detention centre. While his detention has been challenged in the Guwahati High Court, as it is based on a report which has been held to have many irregularities and inconsistencies, what made it even more egregious was that Sanuallah had served in the Indian Army for 30 years. The outrage over an ex-serviceman designated as a foreigner has managed to grab eyeballs across the country, however, the same specter looms over thousands more in the country, many of whom do not have access to effective legal aid.
A Public Interest Litigation filed with the intent to highlight miserable conditions in the detention centres in Assam for those declared to be ‘foreigners’ led to the Supreme Court interrogating the state as to the number of people held in these centres. Since 2015, 46,000 people have been declared to be foreigners by the Tribunals, however, only 4 have been deported since then. Around 900 people are being held in these detention camps in Assam. The state claimed that the majority of these orders by the Tribunals are passed ex-parte as the people concerned fail to represent themselves. It is a cause for concern that such orders for disqualification from citizenship can be settled without the person present to represent themselves. It also seems to place the burden of proving citizenship on the people accused of being illegal immigrants. This would tend to disproportionately affect marginalised sections of the population, who are less likely to possess adequate documentation.
As the end date of the drive to update the National Register of Citizens (NRC) approaches (on July 31), the concern over people being rendered stateless is increasing. The draft NRC published last year had excluded around 40 lakh of the applicants on the basis of insufficient documentation. While this registration process by the government is based on the Assam Accord conducted under the aegis of the Supreme Court in accordance with the provisions of the Citizenship Act, 1955, this project has been shrouded in some controversy due to the sheer number of people that might be disqualified from citizenship.
The fear of illegal immigration has existed in the state of Assam for decades and has ethnic, linguistic and religious undertones. Political parties have capitalised on this fear, the BJP’s party manifesto this year included a statement that they would complete the NRC process expeditiously as the change in the cultural and linguistic identity in areas due to illegal immigration had adversely impacted the local people’s livelihood and employment. The issues that exist in a border state which had already seen mass migration after the 1971 war are complicated. However, the implications of rendering a large population of people in the country stateless need to be carefully considered.
While there have been assurances that everyone would be given a fair opportunity to represent themselves, marginalised persons are less likely to be able to afford effective legal representation. A significant proportion of those people who have been excluded from the list have also filed objections to it as they have been settled in the state for decades but might simply lack some documentation that is required.
There does not yet appear to be any process in place for what India will do with people who do not find themselves in the final NRC. If no other country will claim them, repatriation cannot be carried out. This might have the consequence of forcing people to live in an endless limbo in a detention centre. If thousands of people are left stateless with no recourse due to this process, it is pertinent to ask the question of whether law always serves the purposes of justice. As a recent law graduate soon to enter the field of litigation, this is a question I am contemplating with some trepidation.
The UNHCR estimates that there are millions of people around the world who are stateless, due to a variety of reasons, disqualification due to state policy is one of them. It is important that India comes up with solutions to address the growing problem of statelessness in the country, while looking to concerns of sovereignty and secure borders, in the broader scheme of justice for all.
By Sanjana Thomas
Sanjana Thomas is a final year law student at Campus Law Centre, Delhi University.