How Supreme Court order on foreigners’ tribunals calls out arbitrary ways of Assam’s border police

In May 2004, Bipin Dutta, a sub-inspector from the Nalbari police station in Assam, visited Md Rahim Ali’s home in Kashimpur village.

Dutta said that the Nalbari superintendent of police had asked him to inquire into Ali’s nationality, and asked him to produce documentary evidence in support of his citizenship.

Ali asked for time to produce the relevant documents and was told he had seven days to do so.

The police alleged that Ali had illegally migrated to India from Mymensingh, Bangladesh, after March 24, 1971. Only those living in the state before this cut-off date, or their descendants, qualified as Indian citizens in Assam, as per the Assam Accord.

The seven-day deadline lapsed and eventually Ali’s case was referred by the border police wing of Nalbari police to the foreigners’ tribunals – quasi-judicial bodies that determine citizenship and are unique to Assam.

In 2012, the tribunal passed an ex-parte order, declaring Ali to be an illegal immigrant. An ex-parte order is an order issued without hearing the opposing party. The tribunal’s order was upheld by the Gauhati High Court in 2015.

But last week, 12 years after he was declared a foreigner, the Supreme Court restored Ali’s citizenship in an order that experts have hailed as a “watershed” judgement, as it called into question the manner in which such proceedings are initiated – and especially, the role of the border wing of the Assam police.

Unfortunately, as The Indian Express found out, Ali died two years ago, before knowing that he had been declared an Indian citizen.

Burden of proof

While declaring Ali an Indian citizen on July 11, a bench of Justices Vikram Nath and Ahsanuddin Amanullah noted that the border police cannot accuse individuals of being foreigners and initiate an investigation into their citizenship without material to substantiate their suspicion.

Although Section 9 of the Foreigners’ Act, 1946, puts the burden of proof on the person accused of being a foreigner – they must prove their citizenship – it could not be invoked on the basis of “bald and vague allegations”, the court pointed out.

“The question is that does Section 9 of the Foreigners’ Act empower the executive to pick a person at random, knock at his/her/their door, tell him/her/they/them ‘We suspect you of being a foreigner’, and then rest easy?” the judgement asked.

Experts Scroll spoke to said the judgement was significant in turning the scrutiny on the border wing of the Assam Police.

Guwahati-based advocate Aman Wadud, who has represented a number of citizenship cases, pointed out that thousands of cases have been referred “randomly” and “without any material basis or any investigation whatsoever” by the police to the foreigners’ tribunals in just such a manner.

Wadud pointed to the case of Mohammed Sanaullah, a retired Indian Army official, who was declared a foreigner by the foreigners’ tribunal and sent to one of Assam’s detention centres in May 2019.

In 2008, the border police submitted a report which said that Sanaullah was an “illiterate labourer” and had confessed during his interrogation to being born in Dhaka. Based on this report, a reference was made against Sanaullah to the foreigners’ tribunal.

“He was serving the Indian Army in Manipur the day his statement was forged by the border police,” said Wadud. Later, it turned out that Sanaullah had never been questioned by the border police.

Eventually, the Gauhati High Court declared him an Indian citizen.

“The Supreme Court has held this modus operandi of the police wrong and acknowledged the ground reality in this manner,” said Wadud.

Arbitrary and biased?

The border police and the foreigners’ tribunals deal with suspected undocumented migrants as well as cases of “D” or ‘doubtful’ voters – a category first introduced in Assam’s electoral lists by the Election Commission in 1997.

In the preliminary stage or investigation, the border police issues a notice to the person under investigation, who is then asked to produce documents to prove his identity and citizenship.

If the police are not satisfied during the inquiry, the superintendent of police initiates a formal inquiry by lodging a case against an accused under the Foreigners’ Act.

Lawyers and activists have repeatedly flagged this phase of inquiry as being arbitrary and biased against the accused.

In Ali’s case, the originating point of inquiry was the Nalbari superintendent of police’s direction to sub-inspector Dutta on May 12, 2004.

But the Supreme Court pointed out that official records are silent on the basis of the superintendent’s direction – what was the information that led him to ask his official to investigate Ali.

The court said nothing has come on record to indicate “even an iota of evidence” against Ali, except for the “bald allegation that he had illegally migrated to India” after March 25, 1971.

The inquiry by the police also did not say who, if any person, had alleged that Ali had migrated to India after that date from Dorijahangirpur village in Mymensingh district in Bangladesh.

The court went on to say: “In the absence of the basic/primary material, it cannot be left to the untrammelled or arbitrary discretion of the authorities to initiate proceedings, which have life-altering and very serious consequences for the person, basis hearsay or bald and vague allegation(s). The authority, or for that matter, the foreigners’ tribunal cannot give a go-by to the settled principles of natural justice.”

“The judgment explicitly places some responsibility on the border police,” said Mohsin Alam Bhat, who teaches constitutional law and human rights at Queen Mary University of London. “The border police need to not only specify the allegations of their suspicion but they must also provide grounds and materials why they believe a certain person is a foreigner.”

Bhat said that if “followed properly”, the order ought to force the border police to carry out at least a basic investigation before issuing a notice to the accused.

Tribunals questioned in the past

Assam has a distinct citizenship determination regime, shaped by the decades-long anxiety of being overrun by undocumented immigrants from Bangladesh.

The 1985 Assam Accord signed between the Indian government and leaders of the Assam movement that had mobilised Assamese society had agreed on March 25, 1971 as a cut-off date to determine citizenship in the state.

The burden of proving their citizenship, however, did not always rest on the accused.

The Illegal Migrants (Determination by Tribunals) Act, 1982, demanded that the state prove that a person is a foreigner. However, after the law was declared unconstitutional by the Supreme Court in 2005, all the cases under the law were brought under the Foreigners’ Act of 1946.

“Since the repeal of the IMDT, the state has behaved as if its responsibility was over after merely alleging that this person is a ‘foreigner’,” said Abhishek Saha, a doctoral candidate at the University of Oxford, who studies the subject. “This Supreme Court judgment challenges that kind of behaviour.”

The question of “fair investigation” and the state’s responsibility to provide grounds for an inquiry has been raised by constitutional courts before.

The Supreme Court in a judgment in 2006 had said that the tribunal is required to set out the main grounds of suspicion to the accused in its notice. “The primary onus … would be on the State and once the Tribunal is satisfied itself about the existence of the grounds, the burden of proof would be upon the [accused],” it said.

In 2013, a full bench judgment of Gauhati High Court had ruled that there has to be a fair and proper investigation before making a reference to the tribunal. It laid out guidelines for the border police to follow while investigating a person, whose citizenship is under doubt.

“However, these directions and orders have neither been followed by the Foreigners’ Tribunal nor the Gauhati High Court,” said AR Sikdar, who has represented hundreds of people at foreigners’ tribunals.

“Since 2009, I have been citing these judgments to point out that cases are being referred without any primary investigation and orders have been passed without the accused being heard or given a chance to defend himself.”

What changes on the ground?

Lawyers are skeptical that the latest Supreme Court judgment will be followed or implemented in the pending cases before the foreigners’ tribunals and Gauhati High Court.

Bhat, co-founder of the legal aid initiative Parichay, which assists persons facing citizenship deprivation in Assam, said the record of the high court is not encouraging in this respect. Bhat and his team are currently working on a report analysing over 1,000 citizenship-status-related orders by the Gauhati High Court between 2009 and 2019.

“The data which we have collected shows that the Gauhati High Court in a large number of cases has been refusing to accept any challenge against police investigations and references, even if no investigation was done before the notice was issued,” Bhat said.

An Assam government advocate who represents the foreigners’ tribunals in the Gauhati High Court, also said it is unlikely to lead to changes on the ground. “I am sure the state will file a review on this in the Supreme Court,” the Gauhati-based advocate said.