Seventy-year-old Amrit Das died in a detention centre in a prison in Goalpara, Assam on April 6, 2019. Das was declared a foreigner on May 20, 2017 by a Foreigners Tribunal and sent to a detention centre.
His family observed his health deteriorate in front of their eyes. He developed asthma sleeping on the cold floor of the prison with inadequate access to healthcare. Das’s death is not the first inside a detention centre.
In May 2018, 38-year-old Subrata De died in the same detention centre. In October of the same year, 61-year-old Jobbar Ali died in another detention centre in Tezpur.
These deaths have turned the spotlight on a state-mandated system of indefinite immigration detention in Assam.
As on March 13, 2019, there are at least 938 individuals who are being detained for being foreigners in six detention centres housed inside prisons across Assam. Most of them do not know what the future holds. Some of them have appealed against official decisions deeming them as foreigners. Some have been in custody for many months, and some for years without access to parole.
There is no statutory limit on the period of detention nor is detention periodically reviewed. These individuals are not segregated from convicts and undertrial prisoners within the prison. They have limited contact with their families. Such incarcerated individuals facing potential statelessness have to deal with anxiety, depression and failing health while in detention.
The Foreigners Act, 1946 under which these detainees are tried, provides for non-custodial alternatives such as requiring the person to reside in a particular place, imposing restrictions of movements, requiring the person to check in with authorities periodically, prohibiting the person from associating with certain people or engaging in certain activities.
Yet, detention has become a default option in Assam.
The process of declaring people as foreigners has accelerated since 2015 when 64 new Tribunals were set up. Out of a total of 468,934 referrals to the Tribunals between 1985 and 2016, 80,194 people were declared foreigners. This figure increased drastically in 2017, reaching 13,434 in just eleven months, averaging nearly 1221 every month.
The pressure is not just on Tribunal members, it is alleged to also be on the Border Police to find suspected foreigners. This has resulted in systematic abuse of individuals suspected to be illegal migrants, spreading panic and uncertainty.
Alongside the process of referring people to Foreigners Tribunals to prove their citizenship is the process of updating the National Register of Citizens (NRC). This process is being supervised by the Supreme Court. Forty lakh names were excluded from the first draft of the NRC. This has led to a climate of fear and stigmatisation.
There have been at least 23 instances of people taking their own lives for fear of losing their citizenship. This uncertainty has created a climate of fear where anyone who seems like an outsider is under suspicion. The anti-foreigner sentiment and xenophobia that remains central to the politics of Assam creates simplistic insider-outsider binaries, erasing a long and complicated history of borders, partition, migration and identity.
Citizenship and belonging have been long contested issues in Assam.
The Assam agitation that went on from 1979 to 1985 demanded detection of all foreigners, their deletion from the voters’ lists, and their deportation; 855 Assamese died in the agitation. The most violent manifestation of the agitation was the Nellie massacre on 18 February, 1983 when according to some accounts 3,000 people, mostly Muslim peasants of Bengali origin were attacked and killed. The agitation ended with the signing of the Assam Accord in 1985 which provided that all Bangladeshis who entered Assam after 1971 would be ‘expelled’.
The Accord also carved out special provisions to determine Indian citizenship applicable only to Assam. No state government including the one led by Prafulla Mahanta the leader of the Assam Agitation, has made a concerted effort to identify or expel these ‘illegal immigrants.’ The issue simmered for years and once again came to a boil in 2005 when Sarbananda Sonowal, the current chief minister of Assam challenged the Illegal Migrants (Determination by Tribunal) Act, 1983 before the Indian Supreme Court. The Act was struck down as being lenient on illegal immigrants.
Since then, Foreigners Tribunals determine the issue of citizenship under the Foreigners Act, 1946. The person accused of being a foreigner has to disprove that he is a foreigner unlike criminal statutes where the burden of proof is one the prosecution. Lawyers working on cases before Foreigners Tribunals in Assam say that as a result of the reversal of burden of proof, investigations have become shoddy and lackadaisical.
Once a person’s case is before the Foreigners Tribunal, they end up in a confusing labyrinth of documents and legal processes. The documents needed to prove citizenship need to be original or certified copies. Certified copies are issued by government offices and the process of getting them can take months. Clerical errors such as varying spellings in different documents or contradictions between answers given in cross-examinations and what is written in the documents are treated with suspicion.The process is biased and is divorced from the reality of documents in India.
Many Indians, especially those belonging to poor and marginalised communities, do not have identity documents that meet the rigorous standards of the Indian Evidence Act, to prove their citizenship.
Nearly 30% of the detainees in detention centres as on 4 February 2018 were declared foreigners in proceedings in ex-parte proceedings or proceedings in their absence. Many such persons fail to appear before the Tribunal because notice was not served on them properly. They invariably find out about the loss of their citizenship only when the police reach their doorstep to arrest them and take them into custody.
Although the proceedings under the Foreigners Act are not criminal as per the Act itself, the consequences for persons declared as foreigners are loss of liberty and deportation.
The stigmatisation, harassment and abuse of people, whom a certain group thinks should not be in the NRC list within the tribunals, inside prisons or outside of it is a dangerous template. It is similar to the one used in Assam during the agitation years of 1979 to 1985. It encourages xenophobia and creates a climate of impunity for discriminatory acts. It has also allowed political parties to easily polarise the Assamese population on the grounds of religion and dehumanise immigrants with the usage of pejorative descriptors like ‘termites’.
Amrit Das’s death just a few days before Assam goes to the polls on April 11, brings into sharp focus the tragic consequences of the narrative of intolerance that frames Bangladeshi immigrants as dangerous and parasitic. The Supreme Court in the course of hearing a public interest litigation on humane treatment inside detention centres has asked the Assam government to inform it of ways to release those being held in detention for prolonged periods.
It is too late for Amrit Das but it is a ray for other detainees.
On February 9, 1983, a few days before the Nellie massacre, in an editorial in Saptahik Janakranti, an Assamese weekly, journalist Homen Burgohain underlined how different elements in Assamese society were opposed to the unity and merger between societies and cultures and all they wanted were alienation, hatred and hostility. His words ring true in 2019 as well.
Arijit Sen is a journalist and Fellow at Centre For Contemporary South Asia, Brown University. Leah Verghese is a Fulbright Scholar and legal researcher.