In Assam, the High Court wants ‘declared foreigners’ to have fewer rights

In December, Kuddus Ali, a resident of Assam’s Barpeta district, was adjudicated to be a “foreigner” by the Gauhati High Court. In Assam where the citizenship of a section of people is perennially under legal scrutiny, it was hardly a development of note.

However, part of the judgment was directions to the state government that legal experts say could lead to a new regime governing people found to be “illegal migrants” in Assam.

In the judgment delivered on December 13, the court decreed that a person declared a foreigner would cease to have access to the bouquet of rights and entitlements available to an ordinary citizen.

Such a person, the judgment stated, would lose their property rights and would have to return any identification document issued by the state that identified them as a citizen. A declared foreigner, the court ruled, will also have their names struck off from the voters’ list. (Currently, declared foreigners cannot vote but their names remain on electoral rolls as “doubtful voters”.)

Further, the court asked the state government to constitute a “nodal authority” that would enforce these restrictions.

This is significant, observers say, because it is likely the first time that a judicial authority has expressly spelled out the extent of curtailment of rights of a declared foreigner and, simultaneously, spelled out a mechanism to enforce them.

“The high court judgment likely indicates the beginning of a new bureaucratic and legal framework for managing declared foreigners in Assam,” said Abhishek Saha, a doctoral candidate at the University of Oxford, who studies the subject.

One of its kind

The citizenship regime in Assam is markedly distinct from the rest of the country. To be an Indian citizen in Assam, one has to have lived in the state before midnight of March 24, 1971, or be a descendant of those who did. The date corresponds to the beginning of the Bangladesh Liberation War.

The exclusive cut-off date was affected through a Constitutional amendment in 1984 – to assuage concerns of the ethnic Assamese people about large-scale migration from what is now Bangladesh.

But the spectre of undocumented migration continued to charge politics in Assam with a section of people, mostly Muslims of Bengali origin, routinely branded as “illegal migrants” and tried in a network of quasi-judicial bodies called foreigners’ tribunals.

An exercise in futility

In 2019, an updated National Register of Citizens was published in the state at the behest of the Supreme Court. It was meant to be a comprehensive list of bonafide Indian citizens in Assam and put to rest the enduring suspicions about people’s citizenship status. The Bharatiya Janata Party-led government, however, refused to ratify it, the fate of the document up in the air for several years now.

Meanwhile, the tribunals continue to scrutinise people’s citizenship. Since deportation is rare – India does not have a formal repatriation arrangement with Bangladesh – a person adjudicated to be a foreigner by the tribunals is liable to spend two years in detention.

Life after detention

The December 13 high court judgment delves into what happens after that.

The court said, “There is hardly any control of the state authorities as regards the whereabouts of such declared foreigners, their activities, and the kinds of rights and entitlements they continue to enjoy in the state.”

The ruling argued that “the entire procedure and process of detecting and declaring a person to be foreigner would become fruitless, in vain and without any purpose” if a declared foreigner is “given the opportunity to again go back to remain unidentifiable, mingle amongst the public and continue to enjoy all such rights, privileges and entitlements”.

To ensure that does not happen, the court directs the setting up of a “nodal authority” with “inter-departmental jurisdiction”.

Curtailing rights

The “nodal authority”, the court said, would coordinate with other departments to prevent declared foreigners from retaining documents like Aadhaar cards, PAN cards, etc. issued to them under the assumption that they were Indian citizens.

It also called for liaison with the Election Commission to ensure that the declared foreigners’ and their descendants’ names were struck off voters’ lists.

Similarly, the authority, the court instructed, would also mediate with the revenue department to confiscate land owned by those declared foreigners.

Earlier this year, the Assam government had advocated for the annulment of property rights of people declared as foreigners.

Activists’ concerns

Some criticised the court’s directions as having “exceeded its jurisdiction”. A district judge from the state with experience in litigation related to matters of citizenship said it was for the “legislature or the Parliament to decide the rights of foreigners”.

The direction to the state to take over property was particularly striking, said activists. “Depriving people of the right to immovable property makes them more vulnerable in restoring their citizenship rights, as land documents, often acquired through inheritance, serve as important evidence in defending their citizenship status,” said a researcher working on citizenship issues and detention centre in Assam.