HC sends Assam woman to foreigners tribunal for relief. She is arrested and pushed into Bangladesh

In April, Mumtaz Begum’s husband got a call from her lawyer.

She had good news. The Gauhati High Court had referred the case of the 44-year-old Bengal-origin Muslim woman back to the foreigners tribunal in Assam’s Nagaon district.

Foreigners tribunals are quasi-judicial bodies unique to Assam that decide on matters of nationality on the basis of documentary evidence.

The Nagaon tribunal had declared Begum a foreigner in 2019, saying she could not prove that she was her father’s daughter.

But the High Court set aside the tribunal order and asked it for a fresh decision, as it had failed to consider all the evidence that Begum had submitted.

On May 30, Begum woman appeared before the tribunal and her lawyer submitted her petition to the court.

Within minutes, however, the tribunal member called the police and ordered Begum’s arrest, without passing any order, her lawyer alleged. She was taken to the Juria police station, and later to the office of the Nagaon superintendent of police and from there to the Matia detention centre in Goalpara district.

A week later, when her husband went to meet her, Begum was no longer at the camp, India’s largest detention centre.

Begum had been pushed into Bangladesh – as the family eventually found out when it filed a habeas corpus petition at the Gauhati High Court.

HRA Choudhury, the senior advocate who represented Begum in the High Court, told Scroll that the tribunal had “exceeded its power” by sending her to jail as its duty is limited to give an opinion on her nationality.

“It is not the job of the tribunal member to hand her over to the police,” he said. “That is the job of the executive. The tribunal does not have the power to do so. I am not going into the merits of the case but this conduct is objectionable and illegal.”

Senior advocate Sanjay Hegde pointed out that when the High Court had remanded the matter back to the tribunal, “the question of her citizenship had still not been decided”.

“The tribunal could not have ordered her arrest and detention when the matter was pending before it,” he said.

In the last four decades, Assam’s tribunals have stripped about 1,30,000 people of Indian citizenship through a process that has been criticised by courts, legal experts and human right groups as arbitrary and loaded against the poor and marginalised.

‘Vanished from police custody’

On May 30, Mumrej Ali accompanied his parents to the Nagaon tribunal from their home in Dhinggaon village.

“We were happy and hopeful when we went to the court,” the 26-year-old said.

Ten minutes after their lawyer approached the tribunal member, as adjudicating officers of the foreigners tribunals are called, all hell broke loose. “The lawyer came to me and said that my mother would be arrested,” Ali said. “My mother started to weep.”

Advocate Hasina Ahmed, who was present at the tribunal, said: “She was arrested within 30 minutes from the tribunal premises without even providing us a copy of the order.”

The next day, Begum’s fingerprints and biometrics were recorded at the office of the Nagaon superintendent of police and she was sent to the detention centre in Goalpara.

When Ali went to the transit camp on June 8, he was “informed that she had been taken away by the police to Nagaon”.

“Since then, her whereabouts are not known,” he said. “My mother vanished from police custody.”

Ali said while the High Court had not given Begum “direct relief”, it did not direct her arrest. “It only asked the tribunal to examine the documents,” he said. “How could she be taken away?”

Begum’s lawyer Choudhury claimed that when Begum’s husband approached the tribunal member, he said “he will pass the order the way he wishes”. “The tribunal member was angry that his order was cancelled and the High Court had asked for fresh consideration,” Choudhury said.

On June 16, Begum’s husband filed a habeas corpus petition with the Gauhati High Court.

On June 24, the Assam government informed the High Court that 10 days earlier Begum had been taken to Kalainchera in Cachar district, which shares a boundary with Bangladesh, and pushed into the neighbouring country.

From D voter to citizen to foreigner

Begum’s citizenship has been under question since 1997. In these three decades, her case has been tossed back and forth through the courts.

In 1997, the Election Commission had carried out a revision of electoral rolls and cancelled the voting rights of three lakh residents of Assam. Begum was one of those labelled “D or doubtful” voters.

A year later, the border police of Nagaon registered a case against her based on the Election Commission report. In 2015, the case was registered at the Nagaon foreigners tribunal.

Two years later, the tribunal ruled in her favour. Begum was among 188 Nagaon residents who were declared “not foreigners” by the concerned member.

But that relief was short-lived.

In 2018, the Gauhati High Court took up a suo moto petition based on a letter from the member of the Nagaon tribunal who succeeded the official who certified Begum was a citizen.

The letter said that the previous member had disposed of 188 petitions, but order sheets laying out the judicial reasoning behind the decisions in each of these cases were missing.

The Gauhati High Court ordered a retrial of all the cases.

Begum went back to the tribunal, but this time she was declared a foreigner.

In 2019, she challenged the order in the Gauhati High Court again.

In its order in April, the High Court set aside the tribunal judgement and remanded the matter to the tribunal for a fresh decision. The court said it was "surprising" that the tribunal had not discussed or assessed at least two pieces of documentary evidence that Begum had submitted nor had it examined a third document.

It then remanded the matter to the tribunal for a fresh decision after stating that the tribunal opinion is “vitiated for non-discussion of the evidence on record”.

“It is the law that a tribunal’s order must be reasoned,” advocate Sauradeep Dey, who represents many citizenship cases in the High Court told Scroll. “Only upon evaluating the evidence in whole should an order be passed. In a trial court matter, it is all the more important to consider the entire evidence and then render an opinion as evaluation of evidence is the primary function of a trial court.”

The evidence

To prove that she was an Indian citizen, Begum had submitted several documents.

This included a school transfer certificate stating she was born in 1982, and certificates from her village headman and the gram panchayat saying that she was the daughter of Tayab Ali, that she was an inhabitant of Kachakhaiti village, and that she had married Muzammel Hoque in 1996.

The tribunal refused to accept these certificates as “valid pieces of evidence” as they were embossed with the national emblem of India. The higher courts have held several times that using the emblem on unauthorised private or non-governmental documents is illegal.

Begum had also submitted voter lists from 1965 and 1970 which included her grandfather’s name, a 1977 voter list with her father’s name and her mother’s name as included in the land records for the year 1968-69.

All of this was to prove that Begum’s ancestors were residents of the state before March 24, 1971 – which is the cut-off date to determine Indian citizenship in Assam.

The tribunal took no cognisance of those documents. In this April order, the High Court pointed out that the tribunal had discarded those documents “without any discussion”.

The court also asked the standing counsel for foreigners tribunal matters to ask the home department if the state should ask members of the tribunals “to be periodically trained to upgrade their skills”.

The arrest and pushback

However, the High Court order did not have any impact on the tribunal member.

The May 30 tribunal order, which was seen by Scroll, declared Begum a foreigner again without discussing the merits of the documents she had submitted.

“The new tribunal order is almost the same as the old one,” advocate Hasina Ahmed said. “The tribunal did not examine what the High Court had asked it to examine.”

When the habeas corpus petition was heard on June 19, the High Court directed the authorities to get information about Begum’s whereabouts and directed that she shall not be deported without the order of the court.

Six days later, the government informed the court that Begum had already been forced out of the country. The next hearing is on July 17.