10, Jun 2023 | CJP Team
The NRC in Assam has created a crisis of citizenship, but this crisis is not purely bureaucratic; for those affected by the exclusion from the NRC final list, the process touches almost every aspect of their life. Since its inception in Assam, CJP recognises the all-pervasive effect the citizenship crisis has on an individual, CJP takes an approach that addresses many of the various concerns that arise for an individual and family in a process where they may be declared potentially state-less any day, along with the fundamentally necessary provisions such as legal aid.
The team’s weekly schedule is demanding yet rewarding, village to village across 10 districts*, reaching out to affected persons and Booth Level Officers and other district-level officers, going out of their way to ensure that people struggling with this crisis are informed that a helpful, justice-oriented organisation like CJP is available.
Along with providing paralegal and legal aid, assistance with documentation, and other administrative processes, CJP Assam team reaches out to provide psychological counselling to individuals struggling with isolation and despair caused by bureaucratic apathy and arbitrary state actions, often leading even to suicidal thoughts and tendencies. The empathy and informed interventions by the CJP Team of District wise Volunteer Motivators (DVMs) include family-based counselling to women dealing with disputes or uncooperative demeanour from their husbands. The team does constant check-backs with detainees released through CJP’s efforts and assists them in adjusting to life within the family, village and society in several ways. The team also counsels persons who are overwhelmed and unduly distressed by the prospect of fighting for their citizenship rights and has consistently been providing individual case-by-case paralegal aid, counselling, and explanation of the legal process, be it appearing in the Foreigners’ Tribunals (FT), completing the documentation process, or to file further appeals. The team ensures that the people know they can contact the CJP for any necessary concerns. This then leads to concrete interventions by out 10-member legal team at the district level to ensure that relief is accrued at this first rung of the justice delivery system.
Every day of each week, a formidable team of community volunteers, district volunteer motivators and lawyers—CJP’s Team Assam – is providing ready at hand paralegal guidance, counselling and actual legal aid to hundreds of individuals and families paralysed by the citizenship-driven humanitarian crisis in the state. Our boots on the ground approach has ensured that 12,00,000 persons filled their forms to enlist in the NRC (2017-2019) and over the past one year alone we have helped release 52 persons from Assam’s dreaded detention camps. Our intrepid team provides paralegal assistance to, on an average of 72-96 families each month. Our district-level, legal team works on 25 Foreigner Tribunal cases month on month. This ground level data ensures informed interventions by CJP in our Constitutional Courts, the Guwahati High Court and the Supreme Court. Such work is possible because of you, individuals all over India, who believe in this work. Our maxim, Equal Rights for All. #HelpCJPHelpAssam. Donate NOW!
Assam’s notorious Foreigner Tribunals are generally only closed-door affairs. CJP has worked persistently in Assam with NRC-affected individuals for years. From the year 2017 on, CJP’s Team Assam has aided over 2,00,000 people with documentation to enlist effectively within the NRC process. It continued during the lockdown to assist people with providing rations and food.
While our work began with victims of NRC exclusion, it has spanned to now assisting, with the same multi-pronged approach, those denied of their citizenship rights by being declared ‘D’ Voters (“Doubtful’ Voters through or by the Election Commission’s taluka level officers) and or “Declared Foreigners” through the arbitrary notice served by the Assam Border Police under the arcane and colonial Foreigner’s Act of 1946!
The sinister three-fanged nature of the citizenship crisis does not even protect individuals or families with or from the accepted natural justice principle of double jeopardy #. This means that even after a person–after facing an exacting process of legal determination stretching long years and costing vast sums of money– has been declared an Indian by a Foreigner Tribunal earlier, there is a chance that their citizenship may be in doubt again; he or she can be served another Declared Foreigner’s notice, or be excluded from the NRC or be declared a ‘D’Voter!
This was the case of Usman Ali, who was declared an Indian in 1999 and 2017 and was sent a suspected (declared) foreigner notice by the Foreigners’ Tribunal (FT) to prove his citizenship for the third time in 2022. Usman Ali is a Muslim wage labourer from Assam whose citizenship has been held suspect thrice on very flimsy grounds. It truly reveals that the Assam citizenship process, at its core, is a process that targets the impoverished and marginalised of Assamese society.
CJP’s Team Assam visits the home of Momtaz Bibi and her husband Asghor A. Momtaz. Momtaz was recently served with a Suspected Foreigner’s Notice.
The Foreigners’ Tribunals and the NRC: Conceptually Flawed?
In addition to working on ground zero, the CJP is also invested in legal analysis, which involves identifying inadequacies and fault lines in existing legislations like the NRC and CAA, thus moving on to the crux of the crisis and problematising how something like the NRC is an inherently flawed and unjust process. In 2019, at a two-day tribunal titled ‘Contested Citizenship in Assam: People’s Tribunal on Constitutional Processes and Human Cost’ to examine the scale and scope of the citizenship crisis in Assam,’ Teesta Setalvad, CJP Secretary, analysed and highlighted the arbitrary and colonial nature of the pre-Independence Foreigners’ Act (legitimised by Executive Diktat, the Ministry of Home Affairs Order of 1964 and subsequent such Orders) and the murky grounds on which such a quasi-judicial tribunal has the jurisdiction to declare the citizenship of individual persons as null and void. The Secretary of CJP highlighted how the Act itself is based on flimsy grounds and grants members presiding over the tribunal excess of power, arbitrary power. The basis of the “Declared Foreigners Notice’ is itself malafide and arbitrary based itself on flimsy statutory ground. Hence, the grounds to declare somebody a foreigner are unspecified by the Act, and the decision is left to the discretion of the presiding members – unlike the Immigration Act 2000, which specifies what exactly constitutes a foreigner in India. Evidence led before the FTs too, do not follow established procedures laid down under the Indian Evidence Act.
CJP, while continually working with individual cases on ground –each of whom uniquely add to our rich and nuanced understanding of the crisis, also works at wider, more based, jurisprudential issues and class actions arising out of this growing understanding. This ground level understanding assists in highlighting these structural problems in the formulation of the law. It supplements these analyses with our most recent documented and analysed data from on-ground sources in Assam. For instance, the proposal for administrative centralisation results in a plethora of hurdles to people in the process NRC lays out for them. Teesta Setalvad therefore also highlighted that the attempts by the government to centralise the NRC documentation process to make the procedure easier for people were deeply flawed and revealed no sign of any understanding of the actual situation. Centralisation only makes the process less accessible and thereby further alienates the people, whereas local, decentralised centres would ensure familiarity and accessibility to officers. These points reveal that an entire executive-judicial machinery that seeks to put people through a documented test of citizenship is deeply erroneous and impaired at a systemic level, not just at the level of implementation.
Speaking at another, earlier CJP-organised event, human rights lawyer Mihir Desai asserted that the ban on media or even family members and a support structure inside the foreigners’ tribunals violates the principle of ‘open trial’ in India. This makes the Foreigners’ Tribunals an entity that is opaque and insulated from public accountability, often resulting in a selective harassment of persons undergoing trial at these quasi-judicial bodies on the grounds of caste, race, religion, and gender.
As of now, according to a report released by the Assam government to the Gauhati High Court in June 2022, there are 100 Foreigners’ Tribunals functional across Assam, and they have, as of May 2022, 1,19,164 cases pending. With 134.365 cases registered in total, out of which 15,201 cases were disposed of in a year. CJP, in this regard, has made considerable headway where about 25 + cases are worked on monthly, more than 100 families are given legal and paralegal assistance each month, and over 12 lakh people have been helped to file their NRC forms thus far.
Going the Extra Mile
The CJP Team Assam deals with each victim of this crisis with dignity and respect, keeping individuals, especially women, children and the marginalised as central to our work. This human touch can otherwise get lost in the sheer monotony and demanding pressures of the work.
See for example the story of Moyna Barman. She was a Koch-Rajbongshi nonagenarian declared a D voter in 2007. After a long and arduous struggle with CJP, the judgement arrived, confirming her status as an Indian in February 2022. The Assam state team in charge, Nanda Ghosh, declared this case a ‘milestone for CJP.’ Moyna was spirited and dignified till the very end. For her funeral in 2022, members of the CJP team visited and attended the ceremonies. CJP Assam’s engagement with NRC-affected individuals is uniquely intense and and thorough, an engagement that attempts answers to a gargantuan challenge, where tentacles of a state and bureaucracy, arbitrarily throw a person’s existence and identity –through questioning of citizenship and nationality– into a complete gamble.
Over 52 detainees have been released from detention centres due to stellar work by CJP Team Assam. A comprehensive list of the names can be found on the website. CJP ensures that our work does not end after a successful legal victory. CJP’s team in Assam conducts constant checkups on released detainees and families of those currently detained or those whose citizenships are hanging in a dubious position. In general, people are aware of the human rights-related work CJP does, and in several cases, people reach out if they or someone they know requires CJP’s help. Humane real and psychological rehabilitation are part of our commitment. After seeking the release of these persons, CJP is now engaged in the intense legal battle to ensure that each of them gets declared Indian.
A daily-wage worker, Ramila has provided for her children ever since the death of her husband. After receiving a notice from a Foreigners’ Tribunal which alleged that she was an illegal migrant, the CJP’s legal team in Assam took over the case, maintaining that the allegations against her were completely false. The investigating officer cited in the notice served to her had never visited her house nor requested any documents. Following this, CJP’s lawyer Advocate Ashim Mubarak handled the case furnishing Tribunal land deeds from 1975 and 1996 and the presence of her parents’ names in voter lists – all of which disputed the false allegations levelled against her.
Belonging to the Bengali-speaking Hindu community, Usha Baishya was born in Kuslaiguri village of Bongaigon, Assam. Her father, Adhar Baishya, resided in the same village until his death in 2008. Advocate Dewan Abdur Rehman, a member of CJP’s legal team, stated that it was a challenging case due to the lack of documents. However, the legal team found a link between Usha and her father, who had been consistently voting in the elections since 1966 till his death, through a government-issued ration card and hence were able to prove her status as a citizen.
Born and raised in the village of Debpara in Goalpara, Assam, 68-year-old Ajibun Nessa was falsely accused of illegally entering and residing in India since 1971. However, Ajibun Nessa’s parents and grandparents had grown up in her village. Worried about the prospect of facing detention centres as elderly women like her were noted to have faced severe abuse, Ajibun Nessa expressed great relief when the CJP took over her case. Within two months, CJP’s team arrived at Ajibun Nessa’s home with copies of the judgement papers that declared her an Indian.
Usman Ali had to go through the harrowing process of proving himself an Indian not just once – or twice, but thrice in his life. Born in Barbakhra, Assam, Ali supports his family as a daily-wage labourer. His father, Jorimuddin Sheikh, was also from Barbakhra and had his name included in the NRC. His father was unlettered and had to take the help of officers and others to help him write his name on his documents, and thus over time, his name became misspelt as Joshimuddin Sheikh. In 1997, the first case was registered against Usman Ali purely based on ‘doubts.’ However, after a legal fight for two years, he was proven an Indian citizen. Yet, again in 2017, he was notified of his citizenship being suspect for the second time, with the threat of being deported to a detention camp looming over his head. Yet, in the same year, he was recognised as an Indian.
However, reminding us of the systemically inhumane nature of proving oneself as a citizen, the blow arrived once again in March 2022, when Usman Ali was suspected of being a foreigner. The investigating officer declared him from East Pakistan (Bangladesh) without even considering his case history. However, agitated at the blatant violation of his human rights and dignity, Usman Ali contacted CJP and narrated the incident. CJP’s legal team put forth the argument that the case against their client was false and made up and substantiated their claims with several pieces of evidence, including the fact that the investigating officer in Usman Ali’s case did not have any seized documents attesting to their clients’ alleged foreign nationality, nor were there any documents of interrogation or any specifying his address. However, by the beginning of 2023, CJP had succeeded in restoring Usman Ali’s status as an Indian through a robust legal fight.
In the absence of a proper investigation, an inquiry report was submitted that Sukur Ali of the Bongaigaon district of Assam was a migrant from Bangladesh. In this case, it was also noted that the investigating officer never visited the home of Sukur Ali or those of the so-called witnesses, nor did they submit any documents, such as passports, etc., that would support the inquiry’s claims. The CJP took over the case after one of Sukur Ali’s neighbours informed the team about the severity of the case due to the particularly vulnerable condition of Sukur Ali and his family. Sukur Ali, the only son in the family, was forced to beg for a living. His mother, who also suffered a developmental disability like him, was a widow who looked after cooking for the family. CJP’s legal team discovered that Sukur Ali was served the FT notice despite having his name in the NRC and his mother being a registered voter. However, there was a prolonged dispute with his land papers as well as the name of his mother. With a year of untiring work, CJP’s legal team delivered a victory: Sukur Ali was declared Indian.
Jahura Khatun was unaware that her name was excluded from the final draft of the NRC until CJP visited her home and informed her and her family.
CJP in the Pandemic
The sudden imposition of a nationwide lockdown in India was a death knell to the marginalised, especially the daily-wage earners like vegetable vendors, scrap purchasers, labourers, rickshaw drivers, etc. People have reportedly gone hungry for days simply due to the stringent lockdown. However, the CJP Team Assam quickly took to the task and adapted to the urgent requirements the COVID-19 pandemic brought. Its District Voluntary Motivators (DVMs) were stationed in various districts, including Morigaon, Chirang, Goalpara, Bongaigaon, and Kokrajhar, to provide essentials and basic rations to families. Vulnerable groups such as widows, orphans, and low-income families were especially paid attention to. CJP’s team in Assam even attended to the immediate and essential needs of the families who had members in detention camps, as the ration cards of such families were suspended. The CJP. Understanding the vast and tumultuous region, coordinated in some districts with local groups such as the Borbari Yuva Samaj and Kawatika Yuva Samajh. Along with mitigating the effects of the lockdown, the state coordinator of the Assam Team Zamser Ali, and Kalyanee Boruah, reached out to the district administration consistently to provide for distressed families. They ensured the DA provided 700 unattended families with 70 kg of ration. The team incorporated various measures to ensure that the remotest of areas were reached. As the pandemic went on, the team took on more roles upon itself than the situation demanded. Thus CJP adapted to the immediacy of the situation and distributed medical kits to people and even visited people to check on their oxygen levels and other health concerns.
CJP continued its work of assisting people with dealing with the citizenship crisis during the pandemic. Several people from Assam asserted that the question of citizenship was more pertinent and deadly than the prospect of getting afflicted with Covid-19.
Team Assam visits the home and offers support to the 35-year-old Fojila Bano. Marked as a D-voter, Fojila’s appeal in the court remains pending.
CJP’s Legal Aid Petition
To further its mission to ensure quality legal aid to the 19,00,000 persons “excluded” from the final list of the NRC (August 31, 2019), CJP corresponded with the National and District Level Legal Aid Authorities before filing a Public Interest Litigation (PIL) in the Guwahati High Court. This ongoing legal battle to ensure that the state of Assam honours its constitutional commitment to provide quality legal aid is part of CJP’s wider mission to work tirelessly on multiple fronts to strengthen existing democratic routes for victims of denial of access (to legal aid). Once this PIL had been admitted, CJP did not stop there: our team then conducted an independent survey of 10 districts in Assam to assess the level of preparedness of the District Legal Services (DSLA). Their findings revealed that the front offices were present or adequately staffed.
Along with that CJP discovered that only ten legal cases were handled by the Dhubri DSLA in 2019 and 2020 respectively. The CJP sought directions to the state to form a more robust and effective legal aid system in effect, as there were many pending NRC-related cases of marginalised persons. The CJP also brought to light that since NRC-excluded persons are required to file an appeal within 120 days, there is little to no time to arrange for funds for lawyers and hence the state of Assam needs to ensure that the DLSA’s not only have more lawyers appointed but that these are trained in the laws related to the Indian Citizenship Act, Indian Evidence Act and the Foreigners Act of 1946. The matter will now be heard on May 4, 2023.
Aadhar Card denials, Assam & Citizenship
In March 2022, CJP also filed a public interest petition before the Gauhati High Court espousing the cause of those left out from the Aadhar enumeration even after being included in the NRC while others who are excluded are also being denied the Aadhar Card. Relying on the Aadhar Act itself, CJP has argued that this UDAI identification has no connection to citizenship at all. CJP’s Assam team first collected a detailed database of 300 persons who have not been issued an Aadhar card and 213 of these are included in the NRC and yet not given an Aadhar card. This petition is pending adjudication as a similar (though with limited prayers) petition has been filed by a politician in the Supreme Court. In its PIL, CJP has underlined that the issue of citizenship has no link with issuing Aadhar cards since Aadhar can be issued to any person residing in India for more than 182 days in the 12 months immediately preceding the date of application. Today, in Assam, the absence of an Aadhar card is denying young children admission to schools, adults from accessing government schemes and jobs and even opening bank accounts. CJP has also brought this PIL to the notice of the Supreme Court of India where similar issues have been agitated in another petition.
CJP’s team in Assam reports for a weekly meeting at the end of the week. One of the prime agendas discussed is how to target and mitigate the effects of communal propaganda that is sown through a web of misinformation on the internet or news channels on the television. CJP has noted that hate speech and rumour-mongering are the building steps towards communal violence, CJP Assam keeps constant checks on these aspects in Assam. Assam is an especially sensitive area owing largely due to the fact that a large number of people there are vulnerable and straitjacketed by the debilitating process of the NRC and FT, communal flare-ups would only serve as the death knell. Hence, CJP pays particular attention to be aware of any potential flair-ups, and the team even makes pronounced efforts to engage in events and programs that engender communal harmony.
*CJP Team Assam currently works in the districts of Chirang, Bongaigaon, Dhubri, Barpeta, Udalguri, Darang, Goalpara, South Salmara-Mankachar, Baksha,Nagoan, Morigoan
#In jurisprudence, double jeopardy is a procedural defence that prevents an accused person from being tried again on the same (or similar) charges