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BETWEEN FEAR AND HATRED: SURVIVING MIGRATION DETENTION IN ASSAM

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Amnesty India is part of the Amnesty International global human rights movement. Amnesty India seeks to protect and promote the human rights of everyone in India. Our vision is for every person in India to enjoy all the rights enshrined in the Universal Declaration of Human Rights, other international human rights standards and the Constitution of India. We are independent of any government, political ideology, economic interest or religion, and are funded mainly by contributions from individual supporters.

First published in 2018 by Amnesty India #235, 13th Cross, Indira Nagar, 2nd Stage, Bengaluru – 560038, Karnataka, India Š Amnesty India Original language: English Printed by Amnesty India. Except where otherwise noted, content in this document is licensed under a Creative Commons (attribution, non-commercial, no derivatives, international 4.0) licence. https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode Where material is attributed to a copyright owner other than Amnesty India, this material is not subject to the Creative Commons licence. Cover Photo: Getty images Sketches: Priya Kuriyan Designer: Mohammed Sajjad

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CONTENTS Overview 04

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The Citizenship Issue in Assam

08

Foreigners Tribunal Processes

11

Detention and Deportation

14

Conditions of Detention

18

Conclusions and Recommendations

24

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4 BETWEEN FEAR AND HATRED: SURVIVING MIGRATION DETENTION IN ASSAM

OVERVIEW International human rights law requires that detention in connection with migration must only be used as a last resort, when lawful, necessary and proportionate. Yet, detention has become a default option in Assam. This briefing examines the use of detention for persons declared as ‘irregular foreigners’. It shows how the detention is routinely used and explores its impact on detainees and their families.

As on 25 September 2018, there are 1,037 people detained for being ‘irregular foreigners’1 in detention centres housed inside prisons in the Indian state of Assam2. Many do not know what crimes have led to their incarceration. Most of them do not know what the future holds. Some of them have appealed against official decisions deeming them ‘irregular foreigners’. There is no statutory limit on the period of detention. Some have been in custody for many months, and some for years without access to parole.

AMNESTY INDIA FOUND THAT:

Moreover, there is no system by which their detention is periodically reviewed. These individuals are not segregated from convicts and undertrial prisoners, who are also housed in the same prison facilities. They have limited contact with their families. Some are even separated from family members who are also being held in detention in other centers. There are children who grow up with their mothers inside prison. Many detainees suffer from mental and physical health issues associated with the conditions of their detention. Healthcare services are inadequate, and there are few avenues for recreation.

– There is no statutory limit on the period for which individuals declared as ‘irregular foreigners’ can be detained. – Individuals declared as ‘irregular foreigners’ are kept inside criminal prisons along with convicts and undertrial prisoners. – The circumstances and conditions of detention cause harm to individuals’ mental and physical health. – The Foreigners Tribunals, which adjudicate citizenship cases, follow flawed processes to identify ‘irregular foreigners’.

A security personal stands guard as residents stand in a queue to check their names on the final list of National Register of Citizens (NRC) at a NRC Sewa Kendra (NSK) in Burgoan village in Morigoan district. Getty images

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METHODOLOGY Empirical data was gathered through semi-structured interviews with key stakeholders and informants including six individuals who had been formerly detained, and families of seven individuals who had been or are in detention.

Amnesty India researchers also surveyed the process of declaring persons as ‘irregular foreigners’. This included an examination of orders of the Foreigners Tribunals and the Supreme Court.

Amnesty India researchers interviewed two persons who visited detention centres as part of a mission conducted by the National Human Rights Commission, two doctors who have worked in detention centres, three academicians working on the political economy of Assam and representatives of three civil society organisations in Assam who work on land rights, minority rights and corruption.

The researchers also analysed 167 appellate judgments of the Gauhati High Court. The researchers interviewed five lawyers who practice in the Foreigners Tribunals in Assam, two High Court lawyers and a former member of a Foreigners Tribunal.

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A resident holds documents on his way to check their names on the final list of NRC at a NRC Sewa Kendra in Morigaon district. Getty images

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CHAPTER 1 - THE CITIZENSHIP ISSUE IN ASSAM EARLY HISTORY

The Immigrants (Expulsion from Assam) Act, 1950 was enacted to assuage the anxieties of the people of Assam about the migration of Bengalis into the state. Under this law, the Indian government could order the removal of any person or class of persons who had come into Assam and whose stay in Assam was “detrimental to the interests of the general public of India or of any section thereof or of any Scheduled Tribe in Assam”. In 1964, the Assam state government passed the Prevention of Infiltration from Pakistan Act. A special security force known as the Border Police was created under this Act comprising about 2000 personnel.6 Additionally the Foreigners Act, 1946 was applied to regulate the entry of foreigners into India. Foreigners Tribunals were set up under this law, again in 1964, to detect “whether a person is or is not a foreigner within the meaning of the Foreigners Act 1946”.

For over a century, the issue of citizenship and belonging has been a much contested one in Assam. In 1949, during India’s Constituent Assembly debate on citizenship, Rohini Kumar Chaudhari from Assam raised the specific issue of migration of people from East Bengal (also formerly known as East Pakistan; present-day Bangladesh) into Assam and suggested that permits be issued to such persons.3 However in its final form, the Indian Constitution did not contain this provision and created a rudimentary framework for citizenship based on domicile and birth.4 Articles 6 and 7 dealt with those who had come from the territories that had become Pakistan by 19 July 1948. The Indian Parliament was entrusted the responsibility of working out the finer details.5 The Citizenship Act, 1955 contained a more detailed elucidation of Indian citizenship. It provided that –

A person born in India after 26 January 1950 would, subject to certain exceptions, be a citizen of India.

Anyone born outside India after 26 January 1950, subject to certain requirements, would be a citizen of India if their father was an Indian citizen at the time of his/her birth.

Under certain conditions, certain category of persons could acquire Indian citizenship by registration in the prescribed manner.

Foreigners could acquire Indian citizenship on application for naturalization on certain conditions.

If any territory became part of India, the Government of India could by order specify the persons who would become citizens of India as a result thereof.

Citizenship could be lost by termination, renunciation or deprivation on certain grounds.

A citizen of a Commonwealth country would have the status of commonwealth citizen of India based on reciprocity.

ANTI-FOREIGNER AGITATION In 1971, after the Bangladesh war of independence, there was a huge influx of refugees from what was East Pakistan into India.7 This resulted in ethnic tensions, which provided a basis for a widespread anti-foreigner movement in Assam known as the ‘Assam Agitation’. The agitation, led by the All Assam Students Union (AASU), went on from 1979 to 1985. It demanded the “detection” of all foreigners, their deletion from the voters’ lists, and their deportation. The agitation was based on the fear that the growing immigrant populations were a burden on the resources of the state and would make the people of Assam a minority in their own land. The agitators refused to recognise the authority of elected representatives and accused politicians of using these “irregular migrants” as “vote banks” to win elections.8 The agitators also wanted the state to use the National Register of Citizens, 1951, which was based on the census data of the same year, to determine the citizenship of all those residing in the state.9 855 Assamese protesters died in the agitation.10

THE FOLLOWING PERSONS ARE ELIGIBLE TO BE INCLUDED IN THE NATIONAL REGISTER OF CITIZENS (NRC) – Persons whose names appear in NRC, 1951. – Persons whose names appear in any of the electoral rolls up to 24 March (midnight), 1971. – Descendants of the above persons. – Persons who came to Assam on or after 1 January 1966 but before 25 March 1971 and registered themselves in accordance with the rules made by the Central Government with the Foreigners Registration Regional Officer (FRRO) and who have not been declared as ‘illegal migrants’ or foreigners by the competent authority. – Persons who are original inhabitants of Assam and their children and descendants who are citizens of India, provided the citizenship of such persons is ascertained beyond reasonable doubt by the registering authority.

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Section 6A was added to the Citizenship Act to give effect to the Assam Accord in 1985.14 It carved out special provisions to determine Indian citizenship, applicable only to Assam. It created three categories for those who came into Assam from Bangladesh:

The most violent manifestation of anti-foreigner sentiments was the Nellie massacre. On 18 February 1983, 1,819 people, mostly Muslim peasants of Bengali origin, were attacked and killed in and around Nellie in Nagaon district of Assam.11 Chargesheets were filed only in 299 of the 688 First Information Reports (FIRs) registered. None of those against whom charges were filed, were ever prosecuted.12

1. Those who came into the state before 1966 were considered Indian citizens;

The Assam Agitation ended with the signing of the Assam Accord. This accord was signed between the AASU, the Indian government and the Assam state government. Some of the key provisions of the Accord related to securing the international border between India and Bangladesh, including, by building a wall and barbed wire fencing; and ‘detection’ and expulsion of foreigners who entered Assam on or after 25 March 1971.13 In 1985, Prafulla Mahanta, the 33-year old leader of this agitation, became India’s youngest Chief Minister, riding on the wave of support created by the Assam Agitation.

2. Those who came into the state between 1966 and 25 March 1971 were to be taken off the electoral rolls, and regularised after ten years; and 3. Those who came into the state on or after 25 March 1971 were to be ‘detected’ and expelled in accordance with law. The constitutionality of Section 6A is being challenged before the Indian Supreme Court because it creates a different rule for Indian citizenship for Assam from what is applicable in the rest of India.15

People wait to check their names on the first draft of the National Register of Citizens (NRC) at Goroimari of Kamrup district in Assam. Getty images

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THE SEARCH FOR ‘FOREIGNERS’

With the NRC, the bridge between the various communities in Assam, the “dolong” which we had, they are trying to break it down once again. The Indian government wishes to get rid of the ‘illegal immigrants’ in Assam through this act…but this has also led to strain between the Assamese, the Bengali Hindus living in Assam, and the Bengali Muslims living in Assam. It is bringing back the climate of the Assam Agitation of 1979-1985…pitting Assamese against Bengali, Hindu against Muslim and so on…this is indeed a very volatile situation and a critical juncture.

Since 1983, people suspected of being ‘illegal migrants’ were tried under the Illegal Migrants (Determination by Tribunal) Act, 1983 (IMDT Act), a legislation that was enacted as a response to the Assam Agitation. The IMDT Act defined an ‘illegal migrant’ as –

a person who entered India on or after 25 March 1971

a foreigner

or someone who has entered India without valid documentation.

The burden of proving a person’s citizenship was placed on the person or state agency who was accusing someone of being an ‘irregular foreigner’.16 The IMDT Act was challenged before the Indian Supreme Court in Sarbananda Sonowal vs Union of India. It was struck down, in 2005, as being too lenient. The Supreme Court relied on a 1998 report by the then Governor of Assam S.K. Sinha, to conclude that there was a large-scale influx of Bangladeshi migrants into Assam, which the IMDT Act had failed to check.17 The Court held that the Act, by placing the burden of proof upon the state rather than upon the ‘illegal migrant’, and its rigorous procedural requirements, was inadequate to deal with the problem of irregular migration. It was felt that proceedings under the Act invariably ended in favour of the person accused of being an ‘illegal migrant’.18 After this judgment, the Tribunals under the IMDT stopped functioning. From 2005 onwards, all determinations of citizenship in Assam were done under the Foreigners Act, 1946 by Foreigners Tribunals. Prior to this, in July 1997, another process began to identify ‘irregular foreigners” in Assam. The Election Commission of India issued a circular to the Assam state government to identify ‘doubtful’ voters and mark them as ‘D’ in the electoral rolls. If the Election Commission was not satisfied with their identity documents, these ‘D’ voters were asked to prove their citizenship by producing valid documents before a Foreigners Tribunal.19 There are 100 Foreigners Tribunals in Assam, of which 64 were set up in 2015.20 Under the provisions of the Foreigners Act, 1946, persons unable to prove their Indian citizenship, and are thus declared ‘foreigner’, may be detained or confined. Such detention is in detention centers which are typically within prison premises.

CITIZENSHIP DETERMINATION UNDER THE NATIONAL REGISTER OF CITIZENS (NRC) The Indian government led by then Prime Minister Indira Gandhi had a series of discussions with the AASU starting in 1980, on the modalities of identifying ‘irregular foreigners’ in the state. The AASU insisted that the National Register of Citizens 1951 (NRC 1951) should be treated as the base for identifying ‘irregular foreigners’. NRC 1951 was a register of

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– Akhil Gogoi, General Secretary, Krishak Mukti Sangram Samiti

Indian citizens, first created in 1951, based on the census of the same year. On 17 December 2014, the Supreme Court ordered in Assam Sanmilita Mahasangha vs. Union of India that NRC 1951 had to be updated for Assam by January 2016. The Court directed the Indian government and the Assam state government to ‘detect’ and deport all ‘illegal migrants’ who have come into Assam after 25 March 1971. The Court also directed the Indian government to hold talks with the government of Bangladesh to streamline the process of deportation of those found to have irregularly migrated from Bangladesh.21 Although what was central to the anti-foreigner struggle was the identification and expulsion of ‘irregular foreigners’, a process which involved updating the NRC 1951, the data in the NRC itself is under a cloud of suspicion. NRC 1951 was based on the Indian Census of 1951, an exercise that has come under severe criticism from several quarters for the process through which it was carried out. Information was collected from village officials through ill-trained enumerators. Individuals were categorized according to households, thereby opening the possibility of misrepresentation or even under-representation of all the members of a particular household.22 These enumerators did not go to the remotest parts of the state, for instance the char areas (river islands). Most of the people living in these parts are Muslim.23 If a person‘s name was omitted in the 1951 census, then their name was also excluded from the NRC. As the NRC was not a public document, a person would not even know if his name was included and there was no opportunity to get the mistake rectified.24 At the time, people would not have contemplated that exclusion from NRC 1951 would have consequences for them and their descendants 68 years hence. After many delays and extensions from the Supreme Court, on 30 July 2018 the ‘final draft’ list of the historic and controversial National Register of Citizens (NRC) was published by the Assam state government. Around four million people were left out of this list.25 The people who have been excluded will be given a chance to file objections. People whose names did not appear in the final draft can file claims and objections till 15 December 2018.26 It is unclear what will happen to those excluded from the final NRC list. The government of Bangladesh has stated that the Indian Prime Minister has assured them that the people left out of the NRC list will not be deported to Bangladesh.27 Recently, the Assam state government has sanctioned Rs. 4.6 billion for the construction of a new standalone detention centre for persons declared as ‘irregular foreigners” with a capacity of 3000.28

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CHAPTER 2 - FOREIGNERS TRIBUNAL PROCESSES THE PATH TO FOREIGNERS TRIBUNALS Foreigners Tribunals were created under the Foreigners (Tribunals) Order, 1964 to determine whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946. Although the proceedings under the Foreigners Act are not criminal as per the Act itself, the consequences for persons declared as ‘irregular foreigners’ are loss of liberty and deportation. There are two parallel processes through which cases get referred to the Foreigners Tribunal. The first is through the Election Commission. As aforementioned, the Election Commission began a process of identifying D-voters in 1997. The cases of all D-voters are sent to the Electoral Registration Officer who scrutinizes documents. If he is not satisfied with the documents, he sends the case to the Foreigners Tribunal. The second process involves the Border Police, who also identify ‘irregular foreigners’. These cases are referred to the Superintendent of Police (Border) in the district where the person lives and subsequently to the Foreigners Tribunal.

This was reiterated in State of Assam vs. Moslem Mondal where the Gauhati High Court applied fair trial standards to proceedings before the Foreigners Tribunal: “Any procedure which comes in the way of a party in getting a fair trial would be violative of Article 14 of the Constitution. Fair trial also includes a fair investigation. The concept of fair investigation and fair trial assumes much importance in the matter of detection and deportation of foreigners under the provisions of the Foreigners Act, 1964 Order as well as the 2012 Amendment Order, because of the nature of proceeding as well as the burden cast on the person who is suspected to be a foreigner to prove that he is not a foreigner, by Section 9 of the 1946 Act. The citizenship right is to be jealously protected. The right under Article 21 of the Constitution is available to all persons to protect his life and personal liberty and hence even the right of a non-citizen to have fair investigation, trial as well fair procedure to be adopted by the Tribunal is guaranteed by Article 21 of the Constitution.” Proving citizenship is difficult because the scrutiny of documents is done according to the standards of the Indian Evidence Act. According to the Indian Evidence Act, documents produced in evidence have to be produced in the original form

PROCEEDINGS BEFORE FOREIGNERS TRIBUNALS

FOREIGNERS TRIBUNAL PROCEEDING: “There are many [Foreigners] Tribunals where government advocates should be present but they are not there. In some cases where there are government advocates, Tribunal members dictate to government advocates on how to cross examine and the process is not neutral. Tribunals are a quasi-judicial system. It is neither entirely civil nor criminal. Very rarely are the proceedings fair. They [Tribunal members] do whatever they want.”

Persons ‘accused’ of being ‘irregular foreigners’ must be given a fair hearing by Foreigners Tribunals, in line with national and international fair trial standards. However, proceedings before Foreigners Tribunals are heavily weighed against the person accused of being an ‘irregular foreigner’. Section 9 of the Foreigners Act provides that the burden of proof is on the person being accused of being an ‘irregular foreigner’. Lawyers working on cases before Foreigners Tribunals in Assam informed Amnesty India researchers that as a result of the reversal of burden of proof, investigations have become shoddy and lackadaisical.

– Lawyer practising in the Foreigners Tribunal “The Foreigners Tribunal Members ask the accused, ‘Do you know what’s written here?’ (Pointing to the written evidence submitted to the Tribunal in English) If the person says yes, then the FT member asks, ‘Tell us what is written in this paragraph?’ If the accused replies, ‘I don’t know English’, the Foreigners Tribunal member writes, ‘The accused is saying he doesn’t know’. All of this is done to put the accused in a spot.”

The Gauhati High Court has recognised these lax investigations and cautioned against them: “The reference by the referral authority29 also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee.”30

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– Lawyer practising in the Foreigners Tribunal “Most clients are very poor and illiterate. They approach people in villages and since they are not well aware of the system it becomes difficult to navigate it. Getting hold of old voter lists is difficult. Administration also often doesn’t help. Or go beyond their way to help a genuine citizen. Middlemen are also there exploiting people.” – Lawyer practising in the Foreigners Tribunal

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THE SEARCH FOR NUMBERS

or through certified copies.31 If the loss of the original can be proved, only then secondary evidence in the form of a copy letter can be produced.32 The Indian Evidence Act requires documents to be proved before they are admissible as evidence. 33 The determination process is divorced from the reality of documents in India. It is harsh on clerical errors. Many Indians, especially those belonging to poor and marginalized communities, do not have certified copies of identity documents to prove their citizenship to meet the rigorous standards of the Indian Evidence Act.34 This is particularly true in the case of Assam a state that has significant numbers of internally displaced because of frequent outbreaks of violence, and natural disasters. It is unreasonable to expect people fleeing from violence and natural disasters to have and preserve original identity documents. The process of procuring certified copies is time consuming and expensive. In many instances, people are facing detention and deportation largely because they do not have documents to show their parents were citizens. It is important to bear in mind that there was no way their parents could have foreseen that the absence of such identity documents could arbitrarily deprive their children of their nationality and render them stateless decades later. Instances of the Foreigners Tribunals declaring citizens as ‘irregular foreigners” for reasons of clerical errors—such as differences in spellings of names or ages in electoral rolls, or contradictions between answers given in cross-examinations and what is written in the documents—are all too common. Amnesty India researchers spoke to the family of Subrata Dey, who died in detention on 26 May 2018.35 His mother and brother said that his name was spelt as Subodh in his identity documents. His claim of being an Indian was, therefore, rejected by the Foreigners Tribunal and he was sent to a detention centre in Goalpara, Assam. His family had made preparations to file an appeal in the Gauhati High Court when they learnt that he died in the detention centre.36 Amnesty India also met Rahima Bibi, a detainee. She said that she could not produce original documents and that was reason enough to be sent to a detention centre in Kokrajhar.37

Four UN Special Rapporteurs have observed that there has been a notable and significant increase in the Tribunals’ findings of foreigner status as a result of the new government coming into power. It is alleged that the Tribunals have been declaring Bengali Muslims in Assam as foreigners resulting in statelessness and risk of detention.38 Media reports have alluded to the Assam state government applying pressure on Foreigners Tribunal members to declare large numbers of people as ‘irregular foreigners’.39 On 20 June 2017, nineteen Foreigners Tribunal members were dismissed for their "under performance in the last two years", and fifteen others were asked to accelerate their rate of disposal of cases.40 These dismissed Tribunal members challenged their dismissal before the Gauhati High Court. The High Court while examining their dismissal noted irregularities in how the performance of the Tribunal members was being assessed. The said assessment was by the state government’s Home and Political Department instead of the High Court even though the Foreigners Tribunal are quasi-judicial bodies and the members are appointed by the High Court.41 This indicates considerable scope for the Home & Political Department to exert pressure on members of the Foreigners Tribunal to declare large numbers of people as ‘irregular foreigners’ as fast as possible. In 2012, the Foreigners Tribunal Order, 1964 was amended, imposing a 60 day limit on completing proceedings before it.42 The proceedings before the Foreigners Tribunals include filing of written statements, filing of written affidavits of witnesses, evidence in chief, cross-examination, exhibition of documents and arguments. Persons accused of being ‘irregular foreigners’ have to procure certified copies of documents which is a time consuming process. It is challenging for all these stages to be completed in 60 days while adhering to the principles of natural justice and fairness. Out of a total of 468,934 referrals to the Tribunals between 1985 and 2016, 80,194 people were declared ‘irregular foreigners’ (an average of 2586 per year). This figure increased drastically in 2017, reaching 13,434 in just eleven months,

Amnesty India analysed 167 cases of appeals to the Gauhati High Court from the Foreigners Tribunals and found that persons accused of being ‘irregular foreigners’ were usually not ‘undocumented’. Most of them had some documents, but unfortunately these documents were inadequate to prove their citizenship. Nur Mahammad Khan’s was one such case. He was declared an ‘irregular foreigner’ despite the fact that he produced multiple documents, and a Foreigners Tribunal had declared his mother an Indian citizen. The Foreigners Tribunal’s decision was affirmed by the Gauhati High Court. Some of the reasons provided by the High Court for declaring him an ‘irregular foreigner’ are: – Witnesses had different accounts of whether Nur’s mother had a child before or after separation from her husband. – Witnesses had different accounts of whether there was a formal divorce between his parents. – The gaonbura (village headman) did not have personal knowledge of his place of the birth. – The cousin who was examined had no personal knowledge of his family – His mother stated that she had voted before 1993 but had not produced voter lists from that period. – Certificate by a person claiming he is the son of a certain Altaf Khan is not admissible. – Inconsistencies in his father’s details in voter lists. – Contradictions in his mother’s account of the date of his birth.48

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BETWEEN FEAR AND HATRED: SURVIVING MIGRATION DETENTION IN ASSAM 13

averaging nearly 1221 every month.43 The pressure is not just on Tribunal members, it is alleged to be on the Border Police to find suspected ‘irregular foreigners’.44 The proceedings before the Foreigners Tribunal are complex and navigating these processes requires the engagement of lawyers. A good lawyer is critical for the person accused of being an ‘irregular foreigner’ to identify what evidence is needed and how it is to be obtained and proved.45 For members of poor and marginalized communities, engaging a lawyer and arranging for documents involves significant expenditure. All the former detainees whom Amnesty India spoke to had engaged private lawyers who charged a fee. Legal aid for persons appearing before the Foreigners Tribunal appears to be highly inadequate. The National Legal Services Authority (NALSA) intervened only as recently as July 2018 and directed the Assam State Legal Services Authority to provide legal aid to people declared 'D' voters or facing trial in Foreigners Tribunals.46 The newsletter published by the National Legal Services Authority reveals that only 6,326 people in Assam accessed legal aid in 2017, across all districts and courts. This figure is 1,069 for the period January-March 2018). These numbers for people with cases before the Foreigners Tribunals will be even lower.47 Nearly 30% of the detainees in detention centres as on 4 February 2018 were declared ‘irregular foreigners’ in proceedings in which they did not take part. This is a violation of their right to be heard. Lawyers who practice at the Foreigners Tribunals and former detainees told Amnesty

India that notice is often not served on persons accused of being ‘irregular foreigners’. Many such persons fail to appear before the Tribunal as they are unaware that they had to. They invariably find out about decisions taken against them only when the police reach their doorstep to arrest them and take them into custody.

GENDER DISCRIMINATION IN THE PROCESS The process is particularly harsh on women due to difficulties associated with compiling documents to prove citizenship. Illiterate women and women from poor backgrounds are particularly disadvantaged. Their births are invariably not registered. Women would get married before attaining majority and before their names are entered in the voter rolls. When their names were entered in the voter rolls, it would as in relation to their husbands’ names rather than their fathers’ names. They would end up not having any documents to prove that they are the daughter of an individual who is an Indian citizen. It is possible for women to get a certificate from the gaonbura (village headman) to prove family relations. However, this certificate is admissible only if the gaonbura testifies to its authenticity and has personal knowledge of where the accused person was born and their link to an Indian citizen.49

Residents hold their documents as they stand in a queue to check their names on the final list of National Register of Citizens (NRC) at a NRC Sewa Kendra (NSK) in Burgoan village in Morigoan district. Getty images

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CHAPTER 3 - DETENTION AND DEPORTATION ROUTINISATION OF DETENTION

At that point in 2012 there were three detention centres in Assam, Goalpara, Kokrajhar and Silchar. Three more were added later, in Tezpur, Jorhat and Dibrugarh. The law does not provide a statutory time limit for detention.

Once a Foreigners Tribunal declares a person is a foreigner as per the Foreigners Act, 1946, the person is invariably detained in one of the six detention centres across Assam. The powers of officials to detain people declared as foreigners stems from Section 2 and 3(2)(g) of the Foreigners Act, 1946 and Para 11(2) of the Foreigners Order, 1948. The Act provides for non-custodial alternatives to detention 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.50 However, in practice the Foreigners Tribunals treat detention as the default option.

PROLONGED AND INDEFINITE DETENTION Data from the detention centres reveals a pattern of prolonged detention. The uncertainty of such indefinite detention can have devastating effects on the mental health of the detainees. The table below illustrates that as on 4 February 2018, there were people in detention since 2009. 33% of the detainees had been in detention for more than two years.53 The number of detainees increased significantly from 2015 onwards because the number of Foreigners Tribunals increased and the number of people being declared as ‘irregular foreigners’ also increased.54

The use of detention has the sanction of the Assam state government. The government of Assam in its ‘White Paper on Foreigners Issue’ published in 20 October 2012, approved of the use of detention for those declared as ‘irregular foreigners’ to restrict their movements and to ensure that they “do not perform the act of vanishing.”51

Detention centre

Detainees in custody since 2009

Detainees in custody since 2010

Detainees in custody since 2011

Detainees in custody since 2012

Detainees in custody since 2013

Detainees in custody since 2014

Detainees in custody since 2015

Detainees in custody since 2016

Detainees in custody since 2017

Detainees in custody since 2018 (4 Feb)

KOKRAJHAR

0

8

3

3

2

5

50

42

38

3

TEZPUR

0

5

1

0

4

28

43

63

115

6

GOALPARA

1

3

4

3

4

16

60

74

82

5

JORHAT

0

1

1

1

4

0

18

41

44

1

SILCHAR

0

1

0

7

2

10

6

15

42

2

DIBRUGARH

0

0

1

0

1

1

5

8

12

2

Total

1

18

10

14

17

60

182

243

333

19

According to the UN Working Group on Arbitrary Detention, detention of illegal immigrants must be the exception, not the rule, and indefinite detention is clearly in violation of applicable international human rights instruments governing deprivation of liberty.55 Detention for removal and deportation should, therefore, end when it becomes apparent that there is little prospect that deportation will occur within a reasonable period. Article 21 guarantees the right to life and personal liberty to all persons within India. International law also recognizes the right to liberty, including protection from arbitrary arrest and detention for everyone, regardless of legal status.56 In the context of immigration control, this right can only be restricted in certain limited circumstances. A presumption against detention should be established by law, and the burden of proof to displace it in a given case must rest on the detaining authorities.57 Alternative noncustodial measures should always be considered first, especially since these are available under the Foreigners Act, 1946, before resorting to detention.

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DETENTION AND SEPARATION OF FAMILIES

Indian Ministry of Home Affairs, which refers it to the Ministry of External Affairs. The Ministry of External Affairs then refers the case to the Bangladeshi authorities, who investigate the matter. Once the Bangladeshi authorities verify that the person is Bangladeshi, they are repatriated.65

The process of determining ‘irregular foreigners’ also results in separation of families. Spouses who are declared ‘irregular foreigners’ are not always kept in the same detention centre. Mohammad Ayub and his wife Rahima Khatun were declared ‘irregular foreigners’ by a Foreigners Tribunal. She is in a detention centre in Kokrajhar Prison and he is in the one in Goalpara Prison.58 They have lost their appeal in the Supreme Court and their family is staring at years of separation. Children are the worst affected when families are separated. Detaining children for immigration purposes is never in their best interest.59

The reality is that the number of persons actually deported to Bangladesh is quite small. The Indian Minister of State for Home Affairs, Kiren Rijuju stated before the Lok Sabha (the lower house of the Indian Parliament) that in the years 2016 and 2017, 39 Bangladeshi nationals were deported from detention camps. Assam’s Industry Minister Chandra Mohan Patowary said while replying to a question in the Assam legislative Assembly that the Assam state government has pushed back a total of 29,663 declared foreigners and convicted persons to Bangladesh till December 31, 2017. He also said that 128 Bangladeshis have been deported till August 31, 2018.66 To give context to this number, it would be useful to keep in mind that in 2017, 13,434 people were declared foreigners by Foreigners Tribunals over 11 months in 2017. The state machinery clearly does not have the wherewithal to deport large number of people to Bangladesh, even in the unlikely scenario that Bangladesh agrees to take them. With respect to NRC, the Bangladeshi government has made it abundantly clear that it is an internal Indian matter and that it is not willing to take anyone declared a foreigner in the process. The Indian government has also not raised the issue of deportation with Bangladesh.67

DETAINING INDIVIDUALS WITH VULNERABILITIES The Foreigners Act makes no exception for detention of pregnant or lactating mothers. Their circumstances are not taken into account when determining the necessity and proportionality of detention. Rashminara Begum, a former detainee was served a notice asking her to appear before a Foreigners Tribunal in Goalpara because of contradictory dates of birth mentioned in her school leaving certificates. She submitted nine documents to prove her citizenship but was declared an ‘irregular foreigner’ on 31 October 2016 because of technical issues in the documents. She also was not sure of her age and year of birth. She was sent to a detention centre in Kokhrajhar, even though she was in an advanced stage of pregnancy. She gave birth while in detention.61 The Supreme Court has granted her bail because of childbirth.62

The Indian government has sanctioned funds for the Assam government to build a new detention centre, signaling its continuing approval of the use of detention in immigration cases. The Assam government will consider shifting current detainees to the new facility. The new center will have a capacity to hold 3000 detainees and is expected to be completed by 31 August 2019.68

DEPORTATIONS As mentioned earlier, people who fail to prove Indian citizenship are mostly presumed to be Bangladeshi nationals. As observed by UN Special Rapporteurs, the process disproportionately affects Bengali Muslims, as they are frequently assumed to be Bangladeshi citizens.63 Tribunal members rarely make efforts to ascertain the nationality of persons declared ‘irregular foreigners’. Orders of the Foreigners Tribunal prescribe detention and eventual deportation to Bangladesh. In 2013, the Gauhati High Court in State of Assam vs. Moslem Mondol ordered that the process of deportation had to be completed within two months of a person being declared an ‘irregular foreigner’.64 In reality the process of deportation is long and cumbersome.

Families are separated. So, you have within the same family, a man in one detention centre, a woman in another. Children below six can stay with mothers in the detention camp, but after six the boys are sent out, and nobody takes responsibility. There is no form of communication with other members of your family. And it is hardest when they are in two different detention centres, where there is absolutely no way they can communicate. But even if one spouse or say relative is living outside… I mean people said that out of the kindness of their hearts, officials, sometimes unofficially, share their mobile phones and people are able to communicate once in a blue moon. Harsh Mander, former Special Monitor, National Human Rights Commission (NHRC)60

The Government of India, in its affidavit before the Supreme Court in Assam Sanmilita Mahasangha vs Union of India, described the process of deportation to Bangladesh. The state government has to first provide details of the person to the

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Gulbahar Begum and Junaki Begum claim Gul Muhammad was dropped off near the Bangladesh border in the name of deportation.

Amnesty India researchers met the family of Gul Muhammad. Gul Muhammad was declared an ‘irregular foreigner’. His family told Amnesty India that he was forced to sign a document with a fictitious address in Bangladesh. He was deported to Bangladesh in 2009 by dropping him off near the border. However, he managed to return to Assam. He lived in Assam for the next seven years, till he was again picked up one day by the police and sent to a detention centre.52

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CHAPTER 4 - CONDITIONS OF DETENTION INSIDE DETENTION CENTRES As a former Special Monitor of the NHRC, Harsh Mander visited two detention centres in January 2018 and observed a situation of “grave and extensive human distress and suffering�. He has also filed a writ petition before the Supreme Court seeking redress for violation of fundamental rights and internationally recognized human rights of detainees in six detention centres across Assam. In September 2018, the Supreme Court issued a notice to the Central Government and Assam government in this case.

OVERCROWDING Detainees face indefinite detention in overcrowded prisons where there is no segregation of detainees from convicts and undertrial prisoners. Former detainees interviewed by Amnesty India researchers said that the prisons were overcrowded with hardly any space to move or even turn around. A doctor who had been working with prison inmates and detainees in Assam also described overcrowding in the detention centres. He told Amnesty India researchers that in some prisons where the total capacity was 250, there were up to 400 inmates. He described the congestion as being obvious to everyone.

An illustrative sketch showing how overcrowded detention centres are in Assam.

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Kismat Ali,69 whose Indian citizenship was recognized after he spent more than two years in a detention centre in Goalpara, as a ‘D’ voter said to Amnesty India researchers, “The room had a capacity of 40 people. When we reached it was filled with around 120 people. There was no space. We had to live on top of each other. Ashraf (another former detainee) and I slept next to the bathroom. It was dirty. We couldn’t get any sleep. You’d get around 1.5-2 feet space for yourself. We weren’t allowed to take more space. If we did, we were threatened. The convicts get much bigger and broader beds. At that time, we were all put together – we shared space with convicts, all mixed. Each day the numbers kept increasing. It was very hot, there was a fan, but still it was hot. There was no space or peace. They started building other rooms as the room got overcrowded. The new rooms were given to older people; young people were kept in the original room with the convicts.”

The experience of women detainees was no different. Bina Rani Saha who was in the Kokrajhar detention centre for two years said to Amnesty India researchers, “We were surrounded by walls. Not even a cat or dog could enter. I remember there were a lot of people. We slept on the floor on blankets. All of us in rows next to one another.70” Rahima Bibi,71 who was also in the same detention centre said, “There were 50 or 60 or 70 of us in one room. We were all kept together.”

[W]e have taken up the cause of how to have detainees with dignified conditions; and we would like to state that we are completely against the idea of the detention camp, that we want all of them broken down, everyone’s human rights are guaranteed. And if by any case someone is found to be a foreigner, we want them to be returned to their home country in a humane manner. With due decorum in handling such a case, going by all the international protocols, we have them returned home. And apart from the act of deportation, we do not wish any kinds of violence, and abuse, or atrocities or injustice on the people. Hence, I want to say that the issue of statelessness, and detention camp, as a graveyard of human society. And we want all this to stop. – Akhil Gogoi, General Secretary, Krishak Mukti Sangram Samiti72

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MENTAL HEALTH ISSUES

LIMITED COMMUNICATION WITH FAMILY

A doctor working in detention centres, pointed to the health issues that detainees face, “Most of them (men or women) have depression. The Civil Hospital did not have a psychiatrist and that is why we tried holding camps. We tried referring the acute psychosis cases to hospitals in Guwahati, Barpeta and Tezpur.” But the main shortcoming for detainees remained that the environment is not mentally healthy for them. They are not criminals and yet the jail security guards treat them as criminals.

While describing the difficulty they face when they have to meet their family members inside prison, some families told Amnesty India researchers that the distance and cost involved is often prohibitively expensive. They felt uncomfortable in the spaces where detainees meet visitors because of the presence of prison staff. The families of detainees felt that the detainees could not speak freely to them about the conditions inside the detention centres in such circumstances.

Many of the persons Amnesty India spoke to reported that fellow detainees were suffering from mental health problems. The facilities for treatment of mental health disorders within the prisons are highly inadequate. Rashminara told Amnesty India researchers, “The women used to cry a lot. They also went hungry, the chai pani (food and drink) was not enough. There was immense sadness. The women were brought so far away from their homes. They weren’t allowed to be given things from outside. Women weren’t even allowed many visitors.” Rashminara talked about women who would talk to trees. She described a woman as having suffered from “brain short” which was her way of describing someone who had, according to her, lost her mental equilibrium while in detention.

Anima Dey’s son Subrata died in the Goalpara detention centre on 26 May 2018 within two months of being sent there. When asked if her son described the conditions in the detention centre, Anima said, “No, he never said anything about the conditions. How could he? Whenever we met him, there was always police and jailors surrounding the place. They would be standing a little behind him. They (authorities) said he passed away because of a heart attack. But it was very difficult to know what kind of a situation he lived in. When we saw him on Monday it was evident that he was weak and coughing” The district administration in the lower Assam district has ordered a magisterial inquiry into Dey’s death.74

Individuals who had formerly been detained, one doctor and Harsh Mander agreed that they had observed very high levels of depression. When Harsh Mander went inside a prison and detainees realized that someone was speaking to them with empathy, they gathered around him and started to weep. Some of them lay prostrate, holding his feet and begging him to get them out of prison.

I feel terrible. Whenever I remember her, miss her, I go visit her. I ask my husband for some money and go to see her. They are not allowed to be given home-cooked food when we go visit them, but they are allowed stuff brought from shops like bananas, grapes, and so on. I take things like that for her. I also take clothes from home to give to her. She cries a lot, holding my hand, she cries and tell me how ill she feels and she wants to be taken away from there. Asks us to arrange something to help her get out, tells us to do it faster. – Nazima Begum, Sister in law of detainee Mollika Begum

An illustrative sketch of the living conditions inside detention centres in Assam.

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DETENTION OF CHILDREN

RESTRICTIONS ON WORK AND MOVEMENT

There are 31 children inside detention centres in Assam as of 25 September 2018.75 Many female detainees while speaking to Amnesty India researchers said there were children staying with their mothers inside the detention centres. Some of them had even attained majority in detention. Rashminara Begum, a former detainee also talked about children inside the detention centre, “Children had to eat the same food. On a rare day, a jailor would get them bananas and biscuits. If anyone inside the jail knew to teach anything, they would help.”76 Former detainees told Amnesty India that children growing up in prisons had no counseling and were left to themselves. They recalled that they were taken to a school in a car and brought back to the prison after class.

Detainees are also subjected to severe restrictions of movement. When detainees and other prison inmates are sent to hospitals for treatment, they are escorted by reserve police and prison staff. These escorts regularly violate standard rules in their treatment of detainees. As a doctor interviewed by Amnesty India said, “There is no rule to handcuff them (the detainees) but if the escort party feels that they want to do this, they do it.” There are also instances of detainee patients being handcuffed to hospital beds in violation of Supreme Court guidelines.79

While girls were allowed to stay with their mothers, boys above the age of six years were sent out of the detention centres. Although this takes them out of the confines of the prison, often there is no one willing to take responsibility for them.77 Detention of children with their parents in prisons is contrary to international human rights standards, especially the best interests’ principle in the United Nations Convention on the Rights of the Child.78 According to Article 37(b) of the Convention on the Rights of the Child: “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”

The Assam Prison Manual governs the running of the detention centres, since they are within prisons. However, unlike convicts, detainees do not get work inside prison nor are they eligible for parole. They hang in a limbo within the prison and are subject to various unwritten rules created by the prison authorities. Some former detainees told Amnesty India researchers that there have been occasions when they were asked to do cleaning work, including cleaning toilets in detention centres and were not paid for it.

“Prison authorities state that since they are all technically foreigners they cannot be given parole or waged work. All these are unwritten rules. So, people who have been in the camps since 2010, and there are many who have spent years there, have spent all these years doing nothing.” – Aman Wadud, a lawyer representing detainees

POOR FOOD QUALITY

80

The formers detainees whom Amnesty India researchers spoke to described the quality of food that detainees were served as being very poor. Breakfast was meagre and would comprise of one roti (flat bread) and tea without milk. Tea with milk would be given once in a while. By 10 am, all prison inmates are given lunch of rice, lentils and one vegetable.

An illustrative sketch of the living conditions inside detention centres in Assam.

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CONCLUSION On 31 October 2018, while hearing a petition filed by Harsh Mander seeking redress for violations of fundamental rights and internationally recognised human rights of detainees being held in Assam, the Supreme Court said to the Assam state government “You (Assam state government) cannot put a person in a detention centre and say you will decide later what’s to be done about them. It must be planned out in advance. You’re detaining people against their wish; you must provide them certain basic facilities’.81 The Supreme Court has also asked the Assam government to prepare the detention manual within two months and ensure that families are not separated.82 For some families these instructions might be too little, too late. The entire process, starting from the identification of persons suspected of being ‘irregular foreigners’ to them being taken to the detention centre is vitiated by irregularities like non-serving of notice, lackadaisical investigations, inadequate legal representation and routinisation of detention. Our research also shows that detention causes serious harm to detainees’ mental and physical health. It also has a devastating impact on their families outside. This is especially so in cases of indefinite detention. Detainees experience isolation and confusion while being held in prisons along with convicts and undertrial prisoners. They rarely have an understanding of why they have lost their liberty and how they can regain it. The process of updating the NRC is only adding to the uncertainty in Assam. There have been at least 16 instances of suicides by people who fear of losing their or their family members’ citizenship.83 This uncertainty has created a climate of fear where anyone who seems like an outsider is under suspicion. This climate is fed by irresponsible and unsubstantiated statements made by various political leaders. For example, BJP legislator Shiladitya Dev has repeatedly made controversial remarks against Bangladeshis. Recently, he claimed that many people from Bangladesh are included in the NRC and that they are “indulging in love jihad and other criminal activities in Assam”.84 The Prime Minister Narendra Modi has claimed that people from Bangladesh are entering Assam on a daily basis.85 The underlying hyperbolic seems to be aimed at dehumanising Bengali speaking people. The Indian government’s response to Harsh Mander’s petition has been a blanket denial of all allegations of wrongdoing made in it. The reply from the Ministry of Home Affairs insists that instructions have been sent to the Assam government to set up detention centres that have “all the basic amenities like electricity with generator, drinking water, hygiene, accommodation with beds, sufficient toilets/baths with provision of running water, provision for kitchen, round the clock security arrangements, security posts and guard rooms, etc., are provided”. Other instructions include sufficient open space for detainees to move around in a secure environment, segregated accommodation for male and female detainees, proper boundary wall with dense barbed wire fencing above the boundary wall, dignity of detainees, adequate medical attendance for detainees. Amnesty India is not aware any of these instructions being complied with by the Assam government. Amnesty India’s questions to the Assam state government on action taken on the Report of the Special Monitor of the NHRC, conditions in detention centres, the consequences of exclusion from the NRC and legal aid remain unanswered. Given that a new detention centre is being constructed in Assam, for now it seems like the indefinite detention of ‘irregular foreigners’ will continue.

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People stand in line to check their names on the first draft of the National Register of Citizens (NRC) at Gumi village of Kamrup district in Assam. Getty images

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RECOMMENDATIONS The Government of India should – Ensure, that in any given case, migration detention is lawful, necessary, proportionate and used only as a last resort. – Introduce a statutory time limit for detaining irregular foreigners. – Significantly reduce the use of detention for irregular foreigners, ensuring that far fewer people are detained and that anyone who is detained is held for a far shorter time.

The Government of Assam should – Ensure that persons detained under the provisions of the Foreigners Act, 1946, are segregated from convicts and undertrials, and housed in separate detention centres with basic amenities. – Ensure that an operations manual for detention centres is created that addresses the specific circumstances of detainees – Ensure the right to the highest attainable standard of medical care to all detainees, including access to appropriate mental health care through psychiatrists, psychologists and torture and trauma counselors. – Take steps to fulfill the legal duty to treat the best interests of all children affected by detention decisions as a primary consideration. – Permit periodic audits of detention centres by independent auditors. – Ensure that principles of natural justice are followed in citizenship determination processes.

People stand in line to check their names on the first draft of the National Register of Citizens (NRC) at Gumi village of Kamrup district in Assam. Getty images

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ENDNOTES: 1.

The term ‘irregular foreigner’ is used in this briefing to denote a person who does not valid documentation to be in India and has been declared as a foreigner under the Foreigners Act.

A.Sharma, “Assam has deported only 29,795 foreigners” The Pioneer 25 September 2018 https://www.dailypioneer.com/2018/india/assam-has-deported-only-29-795foreigners.html (accessed 1 October 2018)

https://scroll.in/article/803509/assams-search-of-its-original-inhabitants-returnsa-key-question-who-is-assamese-anyway (accessed 1 October 2018) N.Roshan, “The River Between: The Bengali Muslim Community of Western Assam” The Caravan 10 April 2016

2.

https://caravanmagazine.in/vantage/the-river-between-dhubri-bengali-muslimsassam (accessed 10 October 2018)

3.

“Constituent Assembly Debates On 12 August, 1949” Constituent Assembly of India - Volume IX https://indiankanoon.org/doc/894396/ (accessed 10 September 2018)

24. A. Guha, “Little Nationalism Turned Chauvinist: Assam's Anti-Foreigner Upsurge, 1979-80” Economic and Political Weekly, Vol. 15, No. 41/43, 1699, 1980

4.

Article 5 of the Constitution provided that all those who had their domicile in India at the time of the commencement of the Constitution, would be citizens if they were born in India, if either of their parents were born in India, or if they had been ordinarily resident in India for not less than five years immediately preceding the commencement.

25. R.Karmakar, “Over 40 lakh left out of draft NRC in Assam” The Hindu, 30 July 2018

5.

Articles 10 and 11 left it to the Parliament to detail the framework for citizenship.

6.

J.Joseph, “Securitization of illegal migration of Bangladeshis to India” (RSIS Working Paper, No. 100). Singapore: Nanyang Technological University, 2006

7.

In 1971, after a war of independence, Bangladesh was created out of the territory that was formerly East Pakistan. This led to a huge movement of people from Bangladesh to India. Some accounts state that by May 1971, some ten million individuals had found sanctuary on Indian soil S. Ganguly and B.Miliate “When Refugees Were Welcome” Foreign Affairs September 22, 2015.

8.

M.Encinas, “Migrant Rights and Extraordinary Law in India: The Cases of Assam and Jammu & Kashmir” South Asia:Journal of South Asian Studies, 40(3), 463–480, 2017

9.

M. Amarjeet Singh,” Conflicts in Assam” Bangalore: National Institute of Advanced Studies, 2010 http://eprints.nias.res.in/299/1/B3-2010-_Assam.pdf (accessed 10 September 2018)

26. After the publication of the draft list, the NRC authorities wanted to drop five key documents (the extract of the 1951 NRC, copy of electoral rolls up to 24 March 1971, citizenship and refugee registration certificates up to 24 March 1971 and ration cards) from the list of 15 documents through which a person could file their claims for inclusion in the NRC. This further added to the uncertainty that the 4 million people who were excluded from the draft list were facing. The state government of Assam has opposed this move. The Supreme Court has decided against the NRC authorities and has allowed these five documents R.Choudhury, “Assam Citizens' List Chief Alleges Efforts To Include Illegal Migrants” 27 October 2018https://www.ndtv.com/india-news/ national-register-of-citizens-assam-chief-prateek-hajela-alleges-efforts-to-includeillegal-migrants-1938606 P.Kalita, “NRC: Assam seeks inclusion of 5 documents, to file affidavit in SC” The Times of IndiaOct 27, 2018 R.Choudhury, “Assam Citizens' List Chief Alleges Efforts To Include Illegal Migrants” 27 October 2018https://www.ndtv.com/ india-news/national-register-of-citizens-assam-chief-prateek-hajela-alleges-efforts-toinclude-illegal-migrants-1938606 27. NRC in Assam: ‘Those excluded won’t be deported, PM Modi told Sheikh Hasina’ The Indian Express 6 October 2018 https://indianexpress.com/article/india/assam-nrcnarendra-modi-sheikh-hasina-5389175/ (accessed on 11 October 2018)

10. U.Parashar, NRC list: Anxiety, anticipation as Assam waits to know citizenship status, Hindustan Times 29 July 2018https://www.hindustantimes.com/india-news/ nrc-list-anxiety-anticipation-as-assam-waits-to-know-citizenship-status/storylnkuhCrvp2bqqMWuKZXI0L.html (accessed 20 September 2018)

28. W.Hussain, “NRC and the nativity test in Assam”The Asian Age 3 August 2018 http://www.asianage.com/opinion/oped/030818/nrc-and-the-nativity-test-inassam.html

11. M. Amarjeet Singh,” Conflicts in Assam” Bangalore: National Institute of Advanced Studies, 2010 http://eprints.nias.res.in/299/1/B3-2010-_Assam.pdf (accessed 10 September 2018)

29. The referral authority is the Election Commission or the Border Police. 30. State of Assam vs. Moslem Mandal Review Petition No. 22 of 2010 Judgment and Order dated 3 January, 2013

12. S.Krishnan “Thirty-Two Years Later, the Nellie Massacre Remains All But Forgotten” 18 February 2015 The Caravanhttp://www.caravanmagazine.in/vantage/thirty-twoyears-later-nellie-massacre-remains-all-forgotten (Accessed 20 September 2018)

31. Section 64 of the Indian Evidence Act, 1872 32. Section 63 of the Indian Evidence Act, 1872

13. This cut-off date precedes the Bangladesh war of independence, which began on 26 March 1971 and led to millions fleeing from the territory of what is now Bangladesh to India. 14. Citizenship (Amendment) Act, 1985 15. This challenge will be heard by a Constitution Bench of the Supreme Court, as a result of a referral order under Article 145(3) of the Constitution, passed in the case of Assam Sanmilita Mahasangha vs Union of India (2015) 3 SCC 1. 16. Walter Fernandes, “The IMDT Act and Immigration in North Eastern India” Economic and Political Weekly 40 (n. 30), pp. 3237-3240, 2005 17. S.K.Sinha, “Report on Illegal Migration into Assam” 1998http://www.satp.org/ satporgtp/countries/india/states/assam/documents/papers/illegal_migration_in_ assam.htm (Accessed 10 September 2018) 18. The Court also went on to describe the migration from Bangladesh as an “external aggression” against the State of Assam. 19. R.Misra and P.Sultana, “Birth of a Nation and Lost Identities” Journal of Identity and Migration Studies, 9(2), 18, 2015 20. Mamoni Rajkumari vs State of Assam, Judgment dated 22 December, 2017, Gauhati High Court http://ghconline.nic.in/Judgment/WPC44762017.pdf (Accessed 30 August 2018) 21. (2015) 3 SCC 1. 22. J. P.Das, “The Political Exclusion of (Illegal) Bangladeshi Immigrants in Assam” Glocalism: Journal of Culture, Politics and Innovation, 3, 2015 23. I.Chakravarty, Assam’s search for its ‘original inhabitants’ returns a key question: Who is Assamese, anyway? Scroll, Feb 18, 2016

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https://www.thehindu.com/news/national/other-states/over-40-lakh-people-leftout-in-new-draft-nrc/article24550576.ece (accessed 1 September 2018)

33. The Supreme Court has held that “It was the duty of the petitioners to have proved the documents in accordance with law. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth.” LIC of India vs. Ram Pal Singh Bisen https://indiankanoon.org/doc/1510376/ 34. As recent as 2007, the birth of 6.6 million children went unregistered in 2007. K.Sinha, “25% of Indian births not registered” The Times of India 2 March 2012

http://timesofindia.indiatimes.com/articleshow/12104158.cms?utm_ source=contentofinterest&utm_medium=text&utm_campaign=cppst (accessed 21 September 2018)

35. A. Saha, “They had papers to show nationality but died as foreigners in Assam camps” The Indian Express 20 October 2018 https://indianexpress.com/article/ north-east-india/assam/assam-nrc-foreigners-tribunals-in-assam-detentioncamps-5409909/ (accessed 5 October 2018) 36. Interview with Anima Dey, mother of Subrata Dey,13 July 2018 37. Interview with Rahima Bibi, 13 July, 2018 38. Letter from Special Rapporteurs, Reference: OL IND 13/2018 https://www.ohchr. org/Documents/Issues/Racism/SR/Communications/OL-IND-13-2018.pdf (accessed 10 September 2018). See also A.Saha, “The Uncounted Part 4: Their Next Stop” The Indian Express 5 August 2018. https://indianexpress.com/article/north-east-india/assam/nrc-migrantscitizenship-rajnath-singh-bangladesh-the-uncounted-part-4-their-nextstop-5291925/ 39. A.Saha, “The Uncounted Part 4: Their Next Stop” The Indian Express 5 August 2018

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https://indianexpress.com/article/north-east-india/assam/nrc-migrantscitizenship-rajnath-singh-bangladesh-the-uncounted-part-4-their-nextstop-5291925/

40. S.Ray, “19 underperforming Members shown door” Assam Tribune 21 June 2017 http://www.assamtribune.com/scripts/mdetails.asp?id=jun2217/at056 (accessed 30 August 2018) 41. Mamoni Rajkumari vs State of Assam, Judgment dated 22nd December, 2017 http://ghconline.nic.in/Judgment/WPC44762017.pdf (accessed 30 August 2018) 42. Foreigners (Tribunal ) Amendment Order, 2012 https://assam.gov.in/ documents/1631171/0/Annexure_11.pdf?version=1.0&t=1444717501035 43. Letter from Special Rapporteurs, Reference: OL IND 13/2018 https://www.ohchr.org/ Documents/Issues/Racism/SR/Communications/OL-IND-13-2018.pdf (accessed 10 September 2018) 44. R.Karmakar, “Ground Zero: The 'suspected foreigners' of Assam” The Hindu 14 July 2018 https://www.thehindu.com/news/national/other-states/staring-at-statelessness/ article24413512.ece 45. Article 39A of the Constitution of India states that free legal aid must be provided to ensure that access to justice is not denied because of economic or other disabilities. The Supreme Court in Francis Corallie Mullin v. Administrator, Union Territory of Delhi stated that the right of a detainee to consult a legal adviser is not merely limited to defence in criminal proceedings but should also be available to persons in preventive detention. (1981) 1 SCC 608

63. Letter from Special Rapporteurs, Reference: OL IND 13/2018 https://www.ohchr.org/ Documents/Issues/Racism/SR/Communications/OL-IND-13-2018.pdf (accessed 10 September 2018). 64. Review Petition No. 22 of 2010 Judgment and Order dated 3 January 2013 65. (2015) 3 SCC 1. 66. Reply to unstarred question no 3 in Assam Legislative Assembly dated 24 Septmber 2018 67. S.Roy, Quietly, Delhi kept Dhaka in NRC loop: No deportation talk The Indian Express 4 August 2018

https://indianexpress.com/article/india/quietly-delhi-kept-dhaka-in-nrc-loop-nodeportation-talk-5291048/ (accessed 1 October 2018)

68. “Framing guidelines for keeping foreigners in detention centres, Centre tells Supreme Court” Hindustan Times 5 November 2018

https://www.hindustantimes.com/india-news/framing-guidelines-forkeeping-foreigners-in-detention-centres-centre-tells-supreme-court/story6sqdj7XbsqER9einpQ8ICM.html A.Saha, “Assam gets central nod for new detention camp for ‘declared foreigners’ The Indian Express 25July 2018 https://indianexpress.com/article/north-east-india/assam-gets-central-nod-fornew-detention-camp-for-declared-foreigners-5274530/

69. Interview with Kismat Ali, 14 July 2018 70. Interview with Bina Rani Saha, 13 July 2018

46. “Legal aid directive for 'D' voters” The Telegraph 26 July 2018 https://www. telegraphindia.com/states/north-east/legal-aid-directive-for-d-voters/cid/1456018 (accessed 10 October 2018)

71. Interview with Rahima Bibi, 13 July, 2018

47. Quarterly Legal Services Bulletin Issues 1 of 2016, 2 of 2016, 3 of 2016, 4 of 2016, 1&2 of 2017, 3&4 of 2017, 1 of 2018, National Legal Services Authority https:// nalsa.gov.in/news-letter (accessed 1 October 2018)

74. S.Ahmed And M.P.Dutta, Probe into death of 'D-voter' The Telegraph 27 May 2018 https://www.telegraphindia.com/states/north-east/probe-into-death-of-39-dvoter-39/cid/1450070 (accessed 5 October 2018)

48. Nur Muhammad Khan vs. Union of India, Judgment dated 29 January 2018 in WA 224/2014 before the Gauhati High Court 49. Rupajan Begum Vs. Union of India(2018) 1 SCC 579

75. A.Sharma, “Assam has deported only 29,795 foreigners” The Pioneer 25 September 2018. https://www.dailypioneer.com/2018/india/assam-has-deported-only-29-795foreigners.html (accessed 1 October 2018)

50. Section 3(2)(e), Foreigners Act, 1946

76. Interview with Rashminara Begum, 13 July 2018

51. https://economictimes.indiatimes.com/news/politics-and-nation/assam-publisheswhite-paper-on-foreigners-issue-says-influx-has-declined/articleshow/16890478. cmshttps://assam.gov.in/web/home-and-political-department/white-paper#24

77. Interview with Harsh Mander, 5 August 2018

52. Interview with Junaki Begum, daughter and Gul Bahar, wife of Gul Muhammad, 15 July 2018 53. Reply to unstarred question no 317 in Assam Legislative Assembly dated 19 February 2018. 54. Letter from Special Rapporteurs, Reference: OL IND 13/2018 https://www.ohchr.org/ Documents/Issues/Racism/SR/Communications/OL-IND-13-2018.pdf (accessed 10 September 2018). 55. United Nations Human Rights Council, Report of the Working Group on Arbitrary Detention - Mission to Angola, A/HRC/7/4/Add.4, 29 February 2008, at paragraph 97. https://documents-dds-ny.un.org/doc/UNDOC/GEN/G08/111/22/PDF/G0811122. pdf?OpenElement (accessed 20 November 2018) 56. ICCPR, Art. 9(1); UDHR, Arts. 3, 7, 9; HRC General Comment 35; General Assembly Body of Principles, Principle 2; ECHR, Art. 5(1); Refugee Convention, Art. 31; Migrant Worker Convention, Art. 16(1); Declaration on the Human Rights of Individuals who are not nationals of the country in which they live, A/RES/40/144

72. Interview with Akhil Gogoi, 21 May, 2018. 73. Interview with Anima Dey, 13 July 2018

78. Article 3 79. Citizens for Democracy V State of Assam and Ors. http://www.wbja.nic.in/ wbja_adm/files/When%20the%20police%20arrests%20a%20person%20in%20 execution%20of%20a%20warrant%20of%20arrest%20obtained%20from%20 a%20magistrate,%20the%20person%20so%20arrested%20shall%20not%20 be%20handcuffed%20unless%20special%20order%20in%20that%20respect%20 are%20obtained%20from%20the%20magistrate.pdf. See also Chained To Hospital Bed, Assam Ignores Worst Human Right Violations” Pratidin 5 November 2018

https://www.pratidintime.com/chained-to-hospital-bed-assam-ignores-worsthuman-right-violations/

80. Interview with Aman Wadud, 16 July 2018 81. “SC slams Assam govt for keeping foreign nationals in detention centres without plan” Financial Express October 31, 2018https://www.financialexpress.com/indianews/sc-slams-assam-govt-for-keeping-foreign-nationals-in-detention-centreswithout-plan/1367961/ 82. Re – Inhuman Conditions in 1382 Prisons WP 406/2013 order dated 20 September, 2018

57. HRC General Comment 35, at paras 18, 19, 21, 62

83. A.Ashraf, “NRC in Assam: 16 committed suicide due to citizens' register; number of Hindus three times that of Muslims 4 November 2018” https://www.firstpost. com/india/nrc-in-assam-data-shows-16-committed-suicide-due-to-citizenshipregistry-number-of-hindus-three-times-that-of-muslims-5501561.html (accessed 10 November 2018

58. Interview with Ashmina Begum and Ruhul Ahmed, children of Mohammad Ayub and Rahima Khatun, 16 July 2018 59. UNHCR, ‘UNHCR’s Position on the Detention of Refugee and Migrant Children in the Migration Context’, January 2017, www.refworld.org/docid/5885c2434.html (accessed 5 October 2018)

84. P.Sarma, “Many Bangladeshis in NRC, says MLA” The Telegraph 4 October 2018

60. Interview with Harsh Mander, 5 August 2018

61. Interview with Rashminara Begum, 13 July 2018 62. Rashminara Begum vs The Union Of IndiaJudgment and Order dated 22 May 2017 in WP(C) No.7102 of 2016, Gauhati High Court

NCR REPORT_07.indd 27

https://www.telegraphindia.com/states/north-east/many-bangladeshis-in-nrcsays-mla/cid/1445877 (accessed 10 October 2018)

85. “PM Modi vows to halt illegal immigration from Bangladesh” Mint 30 November 2014 https://www.livemint.com/Politics/r0yv2tLDKFbeilppRDmjKN/Narendra-Modivows-to-halt-illegal-immigration-from-Banglade.html

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11/22/2018 6:40:35 PM

Between Fear and Hatred: Surviving Migration Detention in Assam  

As on 25 September 2018, 1,037 persons declared foreigners were being detained in detention centres in Assam. Many do not know what crimes h...

Between Fear and Hatred: Surviving Migration Detention in Assam  

As on 25 September 2018, 1,037 persons declared foreigners were being detained in detention centres in Assam. Many do not know what crimes h...

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