of religious groups in these countries. There’s no link with the above sentence. However, while
these countries all share an official State religion, the case of the Rohingyaas proves that the
absence of a State religion does not indicate that there is no religious persecution. As the Report
of the Independent International Fact-Finding Mission on Myanmar revealed,Rohingyas are
victims of ethnic cleansing and genocide.<fnref n="546" /> The example of Sri Lanka, which is not included
in the CAA’s list of countries, provides another instance of Sri Lankan Tamils’ persecution by
the State – which recognizes Buddhism as the State religion. Their flight to India, Indian Courts’
judgements<fnref n="547" /> and government policies buttress the Petitioners arguments. Classification of
individuals reveals other problems. The legislative classification based on “intrinsic and core”
individual traits would *ipso facto* fail the test of Article 14.<fnref n="548" /> In this instance, the criteria of
religion and country of origin are considered intrinsic and essential aspects of individuals, and
are consequently, according to the SC jurisprudence *ipso facto* unreasonable. Moreover, the
distinction between refugees and asylum seekers of a certain faith and countries, fails the test
of reasonable classification for a legitimate purpose. Hence, the absence of grounds for the
rational nexus as it is not inclusive towards the selected countries. Lastly, individuals
classification in this case underlines the necessity to consider the “direct and inevitable
consequence”<fnref n="549" /> of legislation as pointed out by the *Bachan Singh* (1980) case.<fnref n="550" />

Thirdly, the SC considers human dignity as a pillar of the Constitution.<fnref n="551" /> The Indian and
American SC established a judge-made doctrine around this concept by linking Articles 14 and
21. Human dignity is used in SC rulings as a pillar for equality and the right to non-
discrimination.<fnref n="552" /> For the Petitioners, the State conveys a public message through this Act that
those belonging to specific faiths and a country of origin being ineligible to the naturalisation
process are “less worthy of the State’s concern” and thus the legislation denies individuals’

<footnote n="546">⁵⁴⁶ According to the UN, Myanmar government did establish preferential treatment towards the Buddhism community. In addition, since 2019, the Myanmar government faces charges of genocide before the ICJ. 'Report of the Independent International Fact-Finding Mission on Myanmar' (Human Rights Council 2019) A/HRC/42/50 para 18.</footnote>

<footnote n="547">⁵⁴⁷ *P Ulaganathan v Government of India* [2019] Madras High Court WP (MD) No. 5253 of 2009.</footnote>

<footnote n="548">⁵⁴⁸ “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia.” *Navtej Singh Johar v Union of India* (n 551).</footnote>

<footnote n="549">⁵⁴⁹ *Bachan Singh v State of Punjab* [1980] SC of India AIR 1980 SC 898 [46].</footnote>

<footnote n="550">⁵⁵⁰ *Petition* (n 539) para I.</footnote>

<footnote n="551">⁵⁵¹ *Navtej Singh Johar v Union of India* (n 551); *Justice KS Puttaswamy (Retd) v Union of India* (n 526).</footnote>

<footnote n="552">⁵⁵² Concerning the right to human dignity see: *Justice KS Puttaswamy (Retd) v Union of India* (n 526); *National Legal Ser Auth v Union Of India* [2014] SC of India (2014) 5 SCC 438; *Jeeja Ghosh v Union Of India* [2016] SC of India WP (C) No. 98/2012.</footnote>
identity, attacks plurality and diversity.<fnref n="553" /> Thus, the CAA denigrates individuals on the grounds of their religion and country of origin, and consequently violates their human dignity. Within the Indian border, it indirectly affects Muslims and other religious minority groups as the law considers only certain groups within the naturalisation process.

### 2.2.4. International responses

The violation of the right to nationality and the right to non-discrimination led to an expressions of indignation internationally.

It took different forms, including submission of an *Amicus curia* in the Indian SC by the UN High Commissioner for Human Rights (HCHR),<fnref n="554" /> to the UN Human rights tweet on the “fundamentally discriminatory”<fnref n="555" /> aspect of the CAA, also highlighted by the UN HCHR<fnref n="556" /> and the European Parliament (“discriminatory in nature and dangerously divisive”<fnref n="557" />), the UN Secretary General’s concern about the correlation between CAA implementation and the risk of statelessness,<fnref n="558" /> the U.S Congress’ “alarm”,<fnref n="559" /> even China or Malaysia’s reactions.<fnref n="560" />

These interventions were dismissed by the BJP government, which argued that the CAA was an internal matter and that “no foreign party has any *locus standi* on issues pertaining to India’s sovereignty”.<fnref n="561" /> But Filippo Grandi, serving as UNHCR, drew attention to the consequences for international law of what India considered an internal matter. He called on the government to refrain from stripping individuals of their nationality of as it can be an enormous blow to

<footnote n="553">⁵⁵³ *Petition* (n 539) para SS.</footnote>

<footnote n="554">⁵⁵⁴ Deb Mukherji, *IFS (Retd) v Union of India* [2020] SC of India WP (C) No. 1474/2019.</footnote>

<footnote n="555">⁵⁵⁵ @UNHumanRights, ‘#India’ (*Twitter*, 13 December 2019).</footnote>

<footnote n="556">⁵⁵⁶ ‘New Citizenship Law in India “Fundamentally Discriminatory”: UN Human Rights Office’ (*UN News*, 13 December 2019).</footnote>

<footnote n="557">⁵⁵⁷ ‘European Parliament Debates Anti-CAA Motion, Vote Delayed till March’ *India Today* (30 January 2020).</footnote>

<footnote n="558">⁵⁵⁸ ‘Citizenship Amendment Act May Leave Muslims Stateless, Says U.N. Secretary-General António Guterres’ *The Hindu* (19 February 2020).</footnote>

<footnote n="559">⁵⁵⁹ Sriram Lakshman, ‘CAA, NRC Raised during Congressional Hearing on Global Human Rights’ *The Hindu* (29 January 2020).</footnote>

<footnote n="560">⁵⁶⁰ Prithvi Iyer, ‘Analyzing Global Response to the Controversial Citizenship Amendment Act’ (*ORF*, 26 December 2019).</footnote>

<footnote n="561">⁵⁶¹ Geeta Mohan, ‘UN Human Rights Body Moves Supreme Court over CAA, India Hits Back Saying Citizenship Law Internal Matter’ *India Today* (4 March 2020).</footnote>
global efforts at eradicating statelessness.<fnref n="562" /> As Guy Goodwin-Gill argued, statelessness is not simply a technical problem but a broad human right issue. This has long been perceived as a challenge for the international community.<fnref n="563" />

Before the HRC, India highlighted two principal elements: the respect of Constitutional values through a reaffirmation of the “faith and commitment to secularism”; the respect of a democratic process and the vote by the two houses of the Parliament.<fnref n="564" /> Yet, groups like the PUCL (People’s Union for Civil Liberties) asserted in December 2019 that the CAA stripped away the secular value of the Indian Constitution.<fnref n="565" /> In fact, international organisations such as Amnesty International and Human Rights Watch spoke up about the current government’s drift from the secular spirit of the Indian Constitution.<fnref n="566" /> The Forty-second Amendment of the Constitution (1976) added secularism in the preamble, and established it as one its core values.<fnref n="567" /> Indian secularism makes religious tolerance the cornerstone of the Indian republic. In 1974, the SC declared:

> Secularism is neither anti-God, nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be discriminated against on the ground of religion.<fnref n="568" />

This principle must be understood in correlation with the right to equality (Article 14) and the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15). In 1997, the SC ruled:

<footnote n="562">⁵⁶² ‘UN Refugee Chief Urges India to Ensure No One Is Left “Stateless”’ *Business Standard India* (1 September 2019).</footnote>

<footnote n="563">⁵⁶³ Quoted in Michelle Foster and Hélène Lambert, ‘Statelessness as a Human Rights Issue: A Concept Whose Time Has Come?’ (2016) 28 Int. J. Refug. Law 1, 565; Guy S Goodwin-Gill, ‘International Law and Human Rights: Trends Concerning International Migrants and Refugees’ (1989) 23 Int. Migr. Rev. 526.</footnote>

<footnote n="564">⁵⁶⁴ ‘Fourth Periodic Report Submitted by India under Article 40 of the Covenant Pursuant to the Optional Reporting Procedure, Due in 2020’ (HRC 2022) CCPR/C/IND/4 para 149.</footnote>

<footnote n="565">⁵⁶⁵ ‘Citizenship Amendment Act, 2019: A Hate Driven Move PUCL Call to Citizens to Launch Non-Cooperation Movement against CAA & NRC’ (People’s Union for Civil Liberties 2019).</footnote>

<footnote n="566">⁵⁶⁶ “‘Shoot the Traitors”: Discrimination Against Muslims under India’s New Citizenship Policy’ (n 443); ‘Six Months Since Delhi Riots, Delhi Police Continue To Enjoy Impunity Despite Evidence Of Human Rights Violations’ (Amnesty International 2020).</footnote>

<footnote n="567">⁵⁶⁷ Preamble Constitution of India 1950: "We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens".</footnote>

<footnote n="568">⁵⁶⁸ *Ahmedabad St Xavier’s College v State of Gujarat* (n 529).</footnote>
Unity in diversity is the Indian culture and ethos. **The tolerance of all religious faiths, respect for each other's religion are our ethos.**<fnref n="569" />

While India's answer before the HRC does not evoke the risk of statelessness and discrimination, it uses a legal constructive argument based on Constitutional supremacy, and the respect of the rule of law.

### 2.2.5. Conclusion

The BJP's political agenda underlying this Act, which has received backing from Hindu nationalist groups (Vishva Hindu Parishad, RSS), aims to consolidate a strong Hindu nation, protect Hindu identity, and affirm the supremacy of Hindu civilization. The Central government sees the northeast states as a particularly important site to achieve this.<fnref n="570" /> They view this region as a bulwark against external aggression by neighbouring China. In fact, Himanta Biswa Sarma, who joined the BJP in 2015 after resigning from the Congress Party and became Chief Minister of Assam in 2021, argued:

> If this Bill is not passed, then Hindus in Assam will become a minority in just next five years. That will be advantageous to those elements who want Assam to be another Kashmir and a part of the uncertain phase there.<fnref n="571" />

Soon after the bill was passed in 2016, he also argued that this decision may have prevented Muslims from taking control of 17 seats in Assam and the Muslim leader of the AIUDF, Badruddin Ajmal from becoming the chief minister.<fnref n="572" />

<footnote n="569">⁵⁶⁹ Sri Adi Visheshwara Of Kashi Vishwanath Temple, Varanasi v State of UP [1997] SC of India 4 SCC 606.</footnote>

<footnote n="570">⁵⁷⁰ Sanjoy Hazarika and Niyati Singh, 'The State and the States: The Northeast in the Centre's Vision' (Institute of Peace and Conflict Studies 2017); H Srikanth, 'Communalising Assam: AGP's Loss Is BJP's Gain' (1999) 34 EPW 3412; Wasbir Hussain, Arunav Goswami and Rani Pathak Das, 'Building Synergies: The Northeast & India's New Government' (Institute of Peace and Conflict Studies 2015).</footnote>

<footnote n="571">⁵⁷¹ 'Hindus in Assam Will Become Minority in 5 Years If Citizenship Bill Not Passed: Assam Minister, Indian Express', *Indian Express* (7 January 2019).</footnote>

<footnote n="572">⁵⁷² Prabin Kalita, 'Without Citizenship Bill, 17 Seats Would Have Gone to Jinnah: Himanta Biswa Sarma' *Times of India* (8 January 2019).</footnote>
Such arguments appeal to local politicians and parties who seek power in the Northeast. Assembly polls in Assam in April 2021 hinged on Assamese *jatiotabad* (sub-nationalism) and nationalism leading politicians to change their positions from opposing the CAA to supporting it, with the BJP attempting to replace Assamese nationalism with Hindutva.<fnref n="573" />

### 3. Conclusion

Critics fear that the NRC and the CAA are being used in conjunction to bolster Hindutva in the region, increase the BJP's clout and power, by reducing the number of Indian citizens of Muslim religion. While the NRC might be used to strip and exclude Muslims living in India from their citizenship, at the same time the CAA is used to grant citizenship to people from a religious background more aligned to the government's ideology.<fnref n="574" />

Although the demands for legislation came from the Assamese themselves, the NRC's implementation created discontent. However, their protests against the CAA have little to do with concerns about the exclusionary aspect of the Act or the threat to secularism. It is understood by indigenous Assamese in more anti-migrant nativist terms in relation to Bengalis and other migrant communities. The CAA has opened up a Pandora's box, and deepened old fault lines, by reigniting historical tensions, stoking fears of disposition, deprivation of citizenship, and distrust in the fairness of procedures in guaranteeing one of the most basic, fundamental human rights. More importantly, it has exposed the Indian State's approach to statelessness.

The next chapter will examine this problematic link with national territory by focusing on Assam, where citizenship has become a major site of acute political and judicial battles.

<footnote n="573">⁵⁷³ Sangeeta Barooah Pisharoty, 'Will Anti-CAA Political Formations Dent the BJP's Chances in 2021 Assam Polls?' *The Wire* (26 August 2020).</footnote>

<footnote n="574">⁵⁷⁴ Joseph Allchin, 'Why Hindu Nationalists Trialed India's Citizenship Law in Assam' *The New York Review of Books* (6 December 2020); Soutik Biswas, 'Why Has India's Assam Erupted over an “anti-Muslim” Law?' *BBC News* (13 December 2019).</footnote>
**Chapter 5. Exclusion vs inclusion**

"Making a person stateless is worse than a death sentence."<fnref n="575" />

Assam's case offers an example of the problems in implementing citizenship provisions in a relatively peripheral, economically disadvantaged state. Defining Indian citizenship in Assam has long been problematic and conflictual.<fnref n="576" /> Constitutional adherence to the diversity of India did not rule out discrimination towards Northeast states including their economic growth. This created a climate of discontent and complaints of being treated like a stepdaughter by a powerful Central government. Assam enjoyed some political stability for about 15 years after its integration into the Republic of India, but its political problems, compounded by a history of ethnic conflicts, go back to its inclusion in the British Empire from 1826 onwards. Its economic restructuring through the introduction of the plantation system and cash-crops opened the state to a flow of migrant labour, breeding socio-political conflict between local ethnic groups and foreigners, deemed to be all who were not native to the region. A second influx in the 1930s-40s consisted of labour from neighbouring provinces to work in the fields under the Grow-More-Food campaign. The re-drawing of boundaries in 1947 brought a third big wave of migrants. When Bangladesh was founded in 1971 following its war of liberation, the wave of migrants generated fresh resentments towards recently arrived Muslim Bengali peasants. Unlike the western border, where the constitutional deadline for migrants from Pakistan to claim citizenship in India was treated as final, the eastern border remained permeable for quite some time. This led to the establishment of a special law even before the commencement of the Constitution. The Immigrants (Expulsion from Assam) Act, 1950 was enforced before the citizenship law was drafted in 1955.

Despite a long-drawn-out student agitation, and the conclusion of Centre-state accords, the problem of migrants, and deportation<fnref n="577" /> of illegal entrants has persisted. More than other

<footnote n="575">⁵⁷⁵ Rohini Mohan, ""Worse than a Death Sentence": Inside Assam's Sham Trials That Could Strip Millions of Citizenship' (n 414).</footnote>

<footnote n="576">⁵⁷⁶ Pranjal Kishore, 'Assam NRC: The Danger In Leaving The Issue Of Citizenship To Foreigners Tribunals' *Livelaw.in* (2 September 2019).</footnote>

<footnote n="577">⁵⁷⁷ Deportation consists of the expulsion of a foreigner from the resident country to the country of origin by an authority invested to do so by law. Under Indian law (Article 21 of the Constitution) and more precisely by a 1978</footnote>
states, Assam, partly because of its geographical distance from the centre, and its poor infrastructural development (roads, railways, schools, hospitals...) has felt itself to be the *desi* (local) Cinderella,<fnref n="578" /> uncared for and exploited, its cultural roots and identity threatened by the unceasing influx of Bengalis, Bangladeshis, and nowוהChristians. Citizenship debates in Assam have been marked by the imprint of the colonial settlement of non-Assamese, and later in the 1970s by the entry of East Bengali Muslim immigrants in the area.

In 1978, by-elections in Assam showed 70,000 new names in the voter list, triggering a major student-led agitation. It culminated in February 1983 with the massacre of more than 2000 Muslim immigrants from East Bengal (Nellie massacre) after Indira Gandhi's government decided to give 4 million immigrants from Bangladesh the right to vote.<fnref n="579" /> Local resentments against outsiders, though not new, have intensified consistently, making Assam particularly sensitive to legal interventions on the issue of who holds the rights of citizenship.

Migration of Muslims from East-Bengal is perceived as a shift in Assam's religious demography: from 24.56% in 1971 to 34.22% in 2011.<fnref n="580" /> Assam has the third highest Muslim population in India after the union territories of Lakshadweep (97%) and Jammu and Kashmir (68%). This has allowed Assamese BJP politicians to assert that Muslims in Assam are not a minority, since they are a majority in nine of Assam's twenty-seven districts<fnref n="581" />: Barpeta, Bongaigaon, Darrang, Dhubri, Goalpara, Hailakandi, Karimganj, Morigaon, Nagaon. All these districts are closely situated, and some even share a border with Bangladesh, thus supporting the idea that Bengali migration has contributed significantly to this demographic trend.

<footnote>SC ruling, a deportation order has to be just, fair and reasonable. *Maneka Gandhi v Union of India* [1978] SC of India 1978 AIR 597.</footnote>

<footnote n="578">⁵⁷⁸ The expression “Cinderella state” was forged in the context of colonial politics to qualify a state that considers itself politically disadvantaged, neglected or unrecognized as compared to other states.</footnote>

<footnote n="579">⁵⁷⁹ Makiko Kimura, *The Nellie Massacre of 1983: Agency of Rioters* (n 289); Makiko Kimura, ‘Memories of the Massacre: Violence and Collective Identity in the Narratives on the Nellie Incident’ (n 290).</footnote>

<footnote n="580">⁵⁸⁰ ‘Assam Religion Hindu/Muslim Data’ (Census 2011).</footnote>

<footnote n="581">⁵⁸¹ Sanjib Baruah, *In the Name of the Nation: India and Its Northeast* (Stanford University Press 2020); Interview with Barua (n 411).</footnote>
These factors exacerbate political tensions around citizenship, furthered by the rise of the BJP. In fact, the “detection, deletion and deportation” of illegal migrants has been on the agenda of the BJP since 1996.<fnref n="582" /> The interference of political ideology in a core human right invites inquiry into the ways in which governmental and judicial practices can challenge the right to non-discrimination and increase individual’s invisibility. Through the angle of judicial independence, the Assamese case highlights the role of political power in aggravating human rights violation. This will be analysed through four steps: firstly, the ethnic tensions within the region and its politicisation; secondly their concretisation through the 1985 Assam Accord; thirdly, the FT roles in increasing discrimination towards minorities; finally, the function of detention camps to finalise the invisibility of minorities.

# 1. Reaffirming Assamese identity: the context

While religious conflicts in India are commonly rooted in the dichotomy between Hindus versus Muslims, in the multi-ethnic state of Assam the opposition extends to Assamese and non-Assamese. As highlighted earlier, the roots of this tension go back to the colonial period and Partition, and an understanding of the contemporary issues about citizenship must be considered in this long-term perspective.<fnref n="583" />

## 1.1. Historical dynamics

Assamese position on immigrants has become emotionally charged and divided, in the last decade, affecting citizenship status in the state. The subject provoked street protests, civil disorder and violence. Its explosive nature was clearly recognized by the British. In 1931, a British colonial administrator, C.S. Mullan, offered a lucid analysis:

> Immigration is likely to alter permanently the whole future of Assam and to destroy [...], Assamese culture and civilization... (It) has been the invasion of a

<footnote n="582">⁵⁸² Kanchan Gupta, ‘Beyond the Poll Rhetoric of BJP’s Contentious Citizenship Amendment Bill’ (n 439).</footnote>

<footnote n="583">⁵⁸³ In the case of Africa, variations in citizenship within several colonial territories have facilitated processes of inequality among individuals. LA Jinadu, ‘Explaining and Managing Ethnic Conflict in Africa: Towards a Theory of Democracy’ (2007) 1 Claude Ake Memorial Papers 1, 15. On the various waves of migration into Assam see: Myron Weiner, *Sons of the Soil: Migration and Ethnic Conflict in India* (Princeton Legacy Library, 1978) ch 3: When migrants succeed and natives fail: Assam and its migrants.</footnote>
vast horde of land-hungry Bengali immigrants, mostly Muslims, from the districts of Eastern Bengal and in particular from Mymensingh... It is sad but by no means improbable that in another thirty years Sibsagar district will be the only part of Assam in which the Assamese will find himself at home.<fnref n="584" />

While Mullan predicted the demographic transformation of Assam, he could not have entirely anticipated the scale and extent of its sociological and political consequences.<fnref n="585" /> Assam's complex, layered historical relationship with migrants and refugees after 1947 is characterised by three elements: (i) fear of insufficient space or land within the state; (ii) resentment of Bengali Hindus and Muslims; and (iii) survival of Assamese language and fear of its marginalisation, or worse, disappearance, because of the arrival of Bengali refugees and migrants.<fnref n="586" />

Demographic balance favoured the Muslim community: from 9% in 1921, it rose to 23% in 1941.<fnref n="587" /> Rapidly, conflicts broke out between these immigrants and locals over land rights. Administrative counter measures included a Line System conceived in 1916 and adopted in 1920. This racial segregation system followed the principle that immigrants could only settle in certain areas, and prevented migrant peasants from buying land within specified areas. Consequently, villages were also categorised in three categories – (i) only for immigrants; (ii) only for locals; and (iii) for both –, to protect Assamese and aboriginal inhabitants, and secondly, to avoid any escalation of violence.<fnref n="588" /> However, in ten years, the arrivals increased from 300,000 in 1921 to nearly half a million in 1931.<fnref n="589" /> The “Grow More Food” slogan was interpreted by officials as “Grow More Muslims”, culminating in the removal of the Line System.<fnref n="590" />

<footnote n="584">⁵⁸⁴ Amit Ranjan, *India-Bangladesh Border Disputes: History and Post-LBA Dynamics* (Springer Nature Singapore Pte Ltd 2018) 92. [emphasis added]</footnote>

<footnote n="585">⁵⁸⁵ Baruah, *In the Name of the Nation* (n 591).</footnote>

<footnote n="586">⁵⁸⁶ Antara Datta, *Refugees and Borders in South Asia: The Great Exodus of 1971* (Routledge 2012) 92.</footnote>

<footnote n="587">⁵⁸⁷ Arun Chandra Bhuyan (ed), *Political History of Assam: 1920-1939* (Department for the Preparation of Political History of Assam, Government of Assam 1978) 308.</footnote>

<footnote n="588">⁵⁸⁸ Amalendu Guha, ‘East Bengal Immigrants and Maulana Abdul Hamid Khan Bhasani in Assam Politics, 1928-47’ (1976) 13 Indian Econ. Soc. Hist. Rev. 419, 420.</footnote>

<footnote n="589">⁵⁸⁹ ‘Census of India’ (1951) vol XII, Part. II A, 73.</footnote>

<footnote n="590">⁵⁹⁰ Sajal (n 290) 9.</footnote>
Concern about immigration from East-Bengal was vigorously voiced by the Assam Sahitya Sabha, a non-governmental organization founded in December 1917 to promote the Assamese culture. It pleaded for limiting the entry of outsiders into Assam, and for the promotion of the local language and culture.

## 1.2. Political perspectives on migration

Tension between regional patriotism and national loyalties that has grown recently is not a new development. It was already simmering in 1937, when visiting Congress president Jawaharlal Nehru called upon the Assamese to give priority to national problems over provincial issues, thus suggesting that the concern for immigration from East-Bengal was provincial.<fnref n="591" /> The Assamese public intellectual, Jnananath Bora, criticised Nehru for not understanding local issues.<fnref n="592" /> This confirmed the Assamese feeling of being ignored by the national parties, whom they accused of not understanding Assam’s priorities.

Migration from East-Bengal thus became politically explosive. The process of counting the number of outsiders in Assam proved to be fraught with difficulties, largely due to linguistic reasons. A new category of immigrants appeared: the *na asaymiya* (the new Assamese) also known as the Miya<fnref n="593" /> community – originally Bengali Muslim peasants brought into Assam during the colonial period –<fnref n="594" /> who after their long presence on the land declared Assamese as their native language.<fnref n="595" /> Between 1911 and 1971, this category increased exponentially by 966 per cent, with an increase of 64 per cent in the number of Bengali speakers.<fnref n="596" /> *Na asaymiya*, until 1971, found themselves closer to the Assamese than to the Hindu Bengalis who resisted

<footnote n="591">⁵⁹¹ Sanjib Baruah, ‘Assam, Northeast India and the “Unfinished Business” of Partition’ *Frontline*.</footnote>

<footnote n="592">⁵⁹² ibid.</footnote>

<footnote n="593">⁵⁹³ Miya is an Urdu word that means “gentleman”. Today, it is use as a word of abuse against the Muslims in Char Chapori, region of Assam.</footnote>

<footnote n="594">⁵⁹⁴ Abdul Kalam Azad, ‘Mass Production of Statelessness in India: Helplessness and Resilience’ (Centre for Applied Human Rights, University of York, 3 November 2021).</footnote>

<footnote n="595">⁵⁹⁵ Owen Bennet-Jones, *Pakistan: Eye of the Storm* (Yale University Press 2002) 149.</footnote>

<footnote n="596">⁵⁹⁶ ibid 150.</footnote>
adopting the local language. This proximity worked until 1971, when a new alliance between language and religion marginalised the Miya. Henceforth, approximately, 10% of the Miya community living mainly in the *Char Chapori* area found their names on the NRC list.<fnref n="597" /> Their exclusion illustrates the structural discrimination faced by the community.<fnref n="598" />

Immigration flux was seen by some Assamese as jeopardising their cultural life, economy and security. They perceived it as a threat to their culture, even conditional to the survival of their ethnic group.<fnref n="599" /> Assamese desire to preserve their own language and culture prompted Assamese Hindus to raise slogans of the Assamese race being in danger.<fnref n="600" /> They could point to the fact that in 1838, twelve years after the annexation of Assam by the British Empire, Bengali was introduced as the official language, and it was only in 1873 that Assamese language was allowed to be used in judicial and revenue proceedings through an order of the Lieutenant Governor.<fnref n="601" />

The legal status of migrants from across the border remained unresolved. While on the Punjab border, migrants were labelled refugees, in Assam, migrants were often seen as infiltrators or even trafficked humans.<fnref n="602" /> There was little compassion for them, and a great deal of apathy. It did not help that these migrants acknowledged the primacy of Assamese language, even if it was an opportunistic move to affirm their rights of belonging to the state. Indeed, in the 1951 census, the Bengali-speaking Muslim settlers registered Assamese as their mother tongue, thus almost doubling the percentage of Assamese speaking people in the state as compared to 1931. However, such claims to a linguistic identity, through cultural productions like Miya poetry were rejected by the Assamese, and in recent times have come under vicious

<footnote n="597">⁵⁹⁷ Natasha Badhwar, “‘Poetry Will Be Turmeric Caught in the Cracks’” *Mint* (4 August 2019).</footnote>

<footnote n="598">⁵⁹⁸ Urmitapa Dutta and others, ‘From Rhetorical “Inclusion” toward Decolonial Futures: Building Communities of Resistance against Structural Violence’ (2022) 69 AJCP 355.</footnote>

<footnote n="599">⁵⁹⁹ Chandra Bhuyan, *Political History of Assam: 1920-1939* (n 597) 308.</footnote>

<footnote n="600">⁶⁰⁰ Guha, ‘East Bengal Immigrants and Maulana Abdul Hamid Khan Bhasani in Assam Politics, 1928-47’ (n 598) 420.</footnote>

<footnote n="601">⁶⁰¹ DP Bhattacharya, ‘CAA Protests in Assam: Why It Is Different from the Rest of the Country’ *The Economic Times* (17 December 2019).</footnote>

<footnote n="602">⁶⁰² Willem van Schendel, ‘Repatriates? Infiltrators? Trafficked Humans? Cross-Border Migrants in Bengal’ (2000) 2 South Asia Refugee Watch 30, 33.</footnote>
attack from those Assamese who had been protesting against their presence all along (1979-1985). They were determined to weed out the *Bideshi* (foreigner), essentially directing their ire towards the Bengali speaking population.

### 1.3. Poetic responses to discrimination

Today, modern Miya poetry remains at the centre of controversies. It first came to light in 1939 with the journalist Maulana Bande Ali's poem "A Charuwa's Proposition",<fnref n="603" /> even though the poet does not mention the word Miya it talks about Muslim oppression in the region. The use of the label Miya spread after the Nellie massacre (1983) with Khabir Ahmed's poem "I Beg to State That" (1985) which questioned the minority group denomination by the majority.<fnref n="604" />

Poetry, diffused through social media since 2016 by the Char Chapori community, became a means to highlight the plight of Miyas.<fnref n="605" /> It served to amplify the community voice and can be perceived as a form of resistance or even revolutionary poetry.<fnref n="606" /> Rehna Sultana expressed her group's discontent and reproaches in 2016 in her poem "My Mother" (2016).<fnref n="607" /> The repeated evocation of "Ma" (mother) refers to the strong ties that bind Miyas to India (also from the right to land perspective) despite the government's disregard, and lack of trust in those who looked or dressed differently. Visible differences (lunghi and the beard) highlight distinctions between "Assamese Muslim" and Miyas, feeding discrimination in the process of deprivation of nationality.

<footnote n="603">⁶⁰³ See Annex – 2.1.</footnote>

<footnote n="604">⁶⁰⁴ See Annex – 2.2.</footnote>

<footnote n="605">⁶⁰⁵ Currently, there is 7 to 8 million people in the community. Abdul Kalam Azad, Divya Nadkarni and Joske GF Bunders-Aelen, ‘Beyond Resistance, beyond Assimilation: Reimagining Citizenship through Poetry’ [2022] J. Hum. Rights Pract. 1, 4.</footnote>

<footnote n="606">⁶⁰⁶ “We Are Asomiya”: Miya Poetry and Maulana Bande Ali’ (Daak: Postcards from the Attic, 29 October 2018); Mashra Hassan, “We the Sons of Bitches Are Doing Fine”: The Dissent of Miya Poetry’ (Jamhoor, 7 August 2021).</footnote>

<footnote n="607">⁶⁰⁷ See Annex – 2.3. *I Am Miya - Reclaiming Identity through Protest Poetry* (Directed by NewsClickin, 2019); ‘Rehna Sultana – Writer(s) – Asymptote Blog’.</footnote>
State alarm at the political power of such verses was mirrored in four police complaints filed against this poetry in 2019.<fnref n="608" /> Another case against ten people, mainly Bengali Muslim was filed.<fnref n="609" /> Subsequently, 10 Miya poets were arrested under the Indian Penal Code and the Telecommunications Act on grounds that Miya poetry is xenophobic and obstructs the NRC. Such accusations of disloyalty reflect the general prejudices towards marginalised minority movements, while making human rights violations visible.

Retaliation can occur through the judicial machinery. FIR by an Assamese journalist filed at the Panbazar Police station (Gauhati) against Hafiz Ahmed's poem, "Write Down 'I am Miya'" offers an example.<fnref n="610" /> Inspired by Palestinian Mahmoud Darwish's poem "Identity card" (1964), Ahmed belongs to the first generation of Miya poets, who relate their plight as an in international condition.

Taken collectively, sentiments expressed in Miya poetry increase awareness about the community's marginalised status and neglect by the State. It underscores their strong integration in the environment (earth, soil, water), through their labour, which the state exploits. Instead of receiving recognition, they are victims of an identity-based violence, (through dispossession of their land, attribution of official numbers in lieu of identity) or discrimination. Sometimes echoing sentiments of other politically marginalised groups like the Palestinians, they place the Miya struggle on the plane of human rights violation related to citizenship deprivation.<fnref n="611" /> Although Miya poetry, as Assamese scholar Hiren Gohain maintains, is directed more to a national and international audience than the local community, with the objective to "legitimize their rather arbitrary mission",<fnref n="612" /> in the particular context of Assam, it echoes a rampant fear of dispossession, forced displacement, and loss of their fundamental rights through

<footnote n="608">⁶⁰⁸ ibid.</footnote>

<footnote n="609">⁶⁰⁹ ‘Assam: FIR Filed against 10 People for Poem Criticising National Register of Citizens’ *Scroll.in* (12 July 2019).</footnote>

<footnote n="610">⁶¹⁰ Hafiz Ahmed, ‘Write Down “I Am Miya”’. For more poems see: Badhwar, “‘Poetry Will Be Turmeric Caught in the Cracks”” (n 607). See Annex 2.4.</footnote>

<footnote n="611">⁶¹¹ In “Digging a Grave”, Kazi Neel refers to the relationship between Miya’s and the environment. *Witness Us - A Reading of Miyah Poetry* (2020) pt 3mn51.</footnote>

<footnote n="612">⁶¹² Hiren Gohain, ‘Debate: Miyah Poetry in the Assam Context’ *The Wire* (9 July 2019).</footnote>
the implementation of the NRC. Confronted with a rigorous enactment of citizenship norms, Miya poets voice their helplessness and anger through their own cultural and linguistic medium, thus defending their specific heritage, as well as their right to their land and place in the Indian Union.

Poetry is however not the only response to the anti-Miya movement. The continuous flows of migrants was viewed with alarm both by Assamese political parties and elites who apprehended that migrants would take over Assam. This situation led to the anti-foreigner's movement of the late 1970s and early 1980s.<fnref n="613" />

## 2. The 1985 Assam Accord

Assamese determination to protect their language, traditions, and more generally, their cultural patrimony, which defines them as a group, has affected citizenship debates and legislation in India from the 1970s onwards. In the following decades, this issue was greatly politicised and used in electoral campaigns to harness popular support.

Political initiatives to resolve the deep-seated problem of citizenship in Assam responded to violent protests against the massive wave of immigration from Bangladesh.<fnref n="614" /> Strongly resented by the native Assamese, it provoked another uprising in 1979 after the names of foreigners appeared in voters' lists. It unleashed a process in favour of a subnational identity, distinct from, and yet coexistent with an Indian nationality. The construction of this subnational identity built itself on the category of “migrant alien”.

### 2.1. Dividing citizens: Article 6A of the Assam Accord

Failure to subdue the agitation led the Congress government to negotiate an Assam

<footnote n="613">⁶¹³ Thongkholal Haokip, *India's Look East Policy and the Northeast* (SAGE Publications 2015) ch 6: India's Northeast Policy.</footnote>

<footnote n="614">⁶¹⁴ Sanjib Baruah, 'The State and Separatist Militancy in Assam: Winning a Battle and Losing the War?' (1994) 34 Asian Survey 863, 868.</footnote>
Accord with the AASU. The 1985 Accord signed by Prime Minister Rajiv Gandhi and the leaders of Assam's campaign against "foreigners" marked the end of six years of agitation (1979-1985) by the AASU. It considered every individual entering Assam after 1971 an "illegal immigrant". The word held an underlying reference to Muslims, who were now disqualified from obtaining Indian citizenship, even though many had been residing in the state for one and a half decades. Their franchise was withdrawn. In 2003, the National Democratic Alliance in power at the Centre, amended Section 3 of the Citizenship Act to try and further suppress citizenship rights of all children born to such "illegal immigrants". The CAA of 2004 for the first time codified an implicit religious criteria for citizenship. Act 6 of 2004 diminished the *jus soli* principle of citizenship by stating that an individual born in India from a parent who is an illegal migrant at the time of his birth cannot be eligible for citizenship by birth. While it does not clearly mention religious criteria, the reference to migrants from Bangladesh was implicit.

The Assam Accord heralded a hierarchised model of citizenship. All those who migrated before 1966 would be regularised, and thus treated as citizens.<fnref n="615" /> Individuals who migrated between 1966 and 1971 were considered foreigners but could stay on if they undertook the official process of registration.<fnref n="616" /> Finally, all those who arrived after 25 March 1971 were considered illegal immigrants and should be expelled.<fnref n="617" /> The illegality of their presence was to be confirmed by the IMDT Act.

"Different yet equal" citizenship received legal recognition subsequent to the Assam Accord through an amendment in the Citizenship Act in 1986. As mentioned earlier, the Citizenship Act, 1986, introduced a sixth category of citizenship, restricted exclusively and exceptionally to Assam. Migration in 1986 was thus solely associated with illegality.

The Assam Accord was incorporated through article 6A into the Citizenship Act at the national level. The addition of Article 6A laid down that all persons of Indian origin who came to Assam before 1 January 1966 from a specified territory (territories included in Bangladesh) and had

<footnote n="615">⁶¹⁵ Article 5.2, Clause 5 Assam Accord.</footnote>

<footnote n="616">⁶¹⁶ Articles 5.3 - 5.4 ibid.</footnote>

<footnote n="617">⁶¹⁷ Article 5.8 ibid.</footnote>
been resident in Assam, are considered citizens of India from that date, except in cases of (a) person of Indian origin from the specified territories who came on or after 1 January 1966, but before 25 March 1971 and have been resident in Assam since, and (b) have been detected in accordance with the provisions of the Foreigners Act, 1946 and Foreigners (Tribunals) Orders, 1964 (FTO), (c) upon registration, will be considered as citizens of India, from the date of expiry of a period of ten years from the date of detection as a foreigner. In the interim period, they will enjoy all facilities, including Indian passports, but will not have the right to vote.

The IMDT Act passed by Parliament in 1983 under a Congress government at the Centre laid down the procedures to detect illegal immigrants (from Bangladesh) and expel them from Assam despite their documents of citizenship. The IMDT Act was justified as providing special protections against harassment to minorities affected by the Assam Agitation. In reality, the term illegal immigrant could be mobilised to target Muslims who had entered the state, even if Hindu Bengalis fell in this category.

The Act provided a judicial mechanism of tribunals against the “network of complicity”<fnref n="618" /> used by illegal immigrants. Tribunals were to be directed by serving or retired judges (District Judge or Additional District Judge).<fnref n="619" /> They would determine the nationality of suspect individuals. Complaints would be judged by a tribunal, which would rule on whether or not the individual was an illegal migrant and if so, would then proceed to deport him or her. This judicial process put an end to police machinery and abuses, but only on paper.

In practice, since both the Foreigners and IMDT Act were applied simultaneously and prescribed different modes of determining citizenship in a situation of continuous immigrant flows from Bangladesh, the residual citizens occupied a zone of perpetually indeterminate citizenship and suspected legality. The IMDT Act was more “protective of immigrants” interests, since it shifted responsibility of proving legal residence of persons “identified”, to a “prescribed authority”, and demanded a “locus standi” from applicants identifying an “illegal migrant”. The 1986 amendment introduced an exception into the legal-formal frameworks of

<footnote n="618">⁶¹⁸ Kamal Sadiq, *Paper Citizens: How Illegal Immigrants Acquire Citizenship in Developing Countries* (OUP 2008) ch 2: Network of complicity.</footnote>

<footnote n="619">⁶¹⁹ Section 5(2) Illegal Migrants (Determination by Tribunals) Act 1983.</footnote>
citizenship in India, by granting legal recognition of special circumstances that existed in Assam. Yet, the Central government retained the power to determine illegality on its own terms.

The constitutional validity of Section 6A of the Citizenship Act, 1955<sup>620</sup> was challenged in 2012 before the SC in a petition by Assam Sanmilita Mahasangha, a civil society organisation based in Gauhati, and two other organisations. The three petitioners, all indigenous groups, questioned the separate dates for individuals' entry into Assam in comparison to the rest of the country.<sup>621</sup> One of the thirteen questions addressed to the Court, dealt with violation of the rule of law through political opportunism rather than lawful government. The case is still pending. A new bench has to be constituted since the retirement of three members of the five judge bench established on 19 April 2017.

## 2.2. Legalising arbitrariness

Though States' sovereignty extends to the establishment of laws dealing with the acquisition of citizenship and regulates the procedures of loss of citizenship or renouncing citizenship, States are expected to apply procedures within the framework of IHRL. They must especially respect the non-violation of the right to non-discrimination,<sup>622</sup> and accept its obligation to prevent statelessness.<sup>623</sup> The right to nationality includes the right to not be arbitrarily<sup>624</sup> deprived of one's nationality, and is protected by Article 15 of the UDHR. A deprivation that is arbitrary corresponds not only to a measure or an act, which is contradictory to national or international law, but equally, consists of an inappropriate injustice and reflects

<footnote n="620">620 Section 6A of the Citizenship Act, 1955 and the Assam Accord are perceived as the “genesis of the updated NRC”. ‘India Exclusion Report, 2019-2020’ (Centre for Equity Studies 2020) ch Citizenship and the Mass Production of Statelessness in Assam 194.</footnote>

<footnote n="621">621 *Assam Accord: Writ Petition on Belhaf of Assam Sanmilita Mahasangha* [2012] SC of India WP (C) No. 562 Of 2012.</footnote>

<footnote n="622">622 Article 2 UDHR; Article 2§1 ICCPR; Article 2§2 ICESCR. These articles correspond only to the treaties signed by India.</footnote>

<footnote n="623">623 Article 7§1 CRC; Article 24§3 ICCPR. These articles correspond only to the treaties signed by India.</footnote>

<footnote n="624">624 Arbitration concerns not only actions that are contrary to the law, but more largely includes elements of “inappropriateness, injustice and lack of predictability”. ‘Arbitrary Deprivation of Nationality: Report of the Secretary-General’ (Human Rights Council, 2009) A/HRC/10/34 para 49.</footnote>
a lack of predictability.<fnref n="625" /> Decisions leading to a deprivation of nationality must follow certain conditions, such as being in conformity with domestic law, serving a legitimate purpose that is in conformity with IHRL. The process must not be intrusive, and further, must be proportionate to the interest to be protected.<fnref n="626" />

The 1983 Act created an exception to India's law on foreigners. It was applicable only to Assam as opposed to other states where detection of foreigners was undertaken under The Foreigners Act, 1946. The new legal situation in Assam shifted the burden of proof from the accused to the complainant. This contrasts with the pan-India Foreigners Act 1946,<fnref n="627" /> where burden of proof was on the person and not with the authorities.<fnref n="628" /> The 1988 Amendment made those who resided within a radius of three kilometres eligible to submit a complaint,<fnref n="629" /> allowing neighbours to file complaints reporting illegal immigrants in their area.<fnref n="630" /> However, the Human Rights Council supported by the SCs of the Netherlands and the United Kingdom,<fnref n="631" /> have argued that the burden of proof lies with the State in cases of statelessness and deprivation or loss of nationality.<fnref n="632" />

On 28 August 2000, the Asom Gana Parishad (AGP) party, which formed the Assam government, filed an affidavit in the SC, claiming that they had asked the Central government to abrogate the IMDT Act, as it was contradictory to national interest and encouraged vote bank politics in favour of the Congress. However, the victory of the Congress party, in the 2001

<footnote n="625">⁶²⁵ibid.</footnote>

<footnote n="626">⁶²⁶ 'Human Rights and Arbitrary Deprivation of Nationality: Report of the Secretary General' (n 103) para 4.</footnote>

<footnote n="627">⁶²⁷ Section 9 The Foreigners Act, 1946: "Burden of proof.—If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person."</footnote>

<footnote n="628">⁶²⁸ *Izhar Admad Khan v Union of India* [1962] SC of India 1962 AIR 1052; *Sham Roj v Addl Superintendent of Police* [1977] Calcutta High Court AIR 1978 Cal 252; *Smt Fatma v State of UP* [2017] Allahabad High Court Criminal Appeal No.-7049 of 2011.</footnote>

<footnote n="629">⁶²⁹ Wasbir Hussain, 'Citizenship Politics' (*Outlook India*, 22 July 2005).</footnote>

<footnote n="630">⁶³⁰ Gopal Jayal, *Citizenship and Its Discontents: An Indian History* (n 300) 64.</footnote>

<footnote n="631">⁶³¹ 'Human Rights and Arbitrary Deprivation of Nationality: Report of the Secretary General' (n 103) 5 Foot note 12.</footnote>

<footnote n="632">⁶³² ibid 5.</footnote>
elections of 201, with 71 seats (and 39.75% of the popular vote) in the Assembly versus the AGP's 20 seats (20.02%),<fnref n="633" /> a change occurred regarding the IMDT Act. On 8 August 2001, the Congress party in Assam moved a petition to the SC, asking that the state be allowed to withdraw the earlier affidavit (I.A. No.5 of 2001) – made under AGP's rule – and submit a new affidavit.<fnref n="634" /> According to the Congress Assam leaders' position on 28 June 2001, the application filed by the AGP government did not “reflect the correct position of law and hence a new affidavit is required to be filed”.<fnref n="635" /> The Congress government further added that the IMDT Act was constitutional and there was no question of repealing or striking down the Act.<fnref n="636" /> The Congress party thus unequivocally supported the IMDT Act reinstating it despite the 2005 judgment.

The SC noted that 310,759 cases had been initiated under the IMDT Act, under which 10,015 were illegal migrants and of these migrants 1,481 had been physically expelled by 30 April 2000.<fnref n="637" /> These numbers allowed the AGP and the BJP to maintain that the Act was actually designed to protect illegal immigrants. On the contrary, for the Congress, the expulsion highlighted the Act's effectiveness and its protection of Indian citizens who could be wrongfully deported.<fnref n="638" />

Other statistics for identification and deportation of illegal migrants are cited to demonstrate that despite accusations of a political anti-migrants' agenda in Assam, the numbers under AGP and the National Democratic Alliance led by the BJP from 1985 until 2005 remain low, despite rising cases before the IMDT Tribunals (Table 2).

<caption>Table 2: Identification and deportation of illegal migrants before the IMDT Tribunals</caption>

<footnote n="633">⁶³³ ‘Assam Assembly Elections Results (2001 - 2011)’ (Statistics Times).</footnote>

<footnote n="634">⁶³⁴ Gopal Krishna Agarwal, ‘Vote-Banks and Foreigners’ *The Indian Express* (14 August 2018).</footnote>

<footnote n="635">⁶³⁵ *Sarbananda Sonowal v Union of India* [2005] SC of India WP (C) No. 131 of 2000 [6].</footnote>

<footnote n="636">⁶³⁶ ibid.</footnote>

<footnote n="637">⁶³⁷ ibid 39.</footnote>

<footnote n="638">⁶³⁸ Gopal Jayal, *Citizenship and Its Discontents: An Indian History* (n 300) 65.</footnote>
<table><thead><tr><td>Period</td><td>Cases referred</td><td>Cases disposed</td><td>Cases pending</td><td>Number of persons declared as foreigners</td><td>Numbers of deportations</td></tr></thead><tbody><tr><td>1985-90</td><td>22,682</td><td>6,486</td><td>16,196</td><td>6,724</td><td>521</td></tr><tr><td>1991-95</td><td>3,488</td><td>7,335</td><td>12,349</td><td>2,577</td><td>792</td></tr><tr><td>1996-2000</td><td>17,623</td><td>4,420</td><td>25,552</td><td>902</td><td>179</td></tr><tr><td>2001 to July 2005</td><td>68,998</td><td>5,780</td><td>88,770</td><td>2,643</td><td>55</td></tr><tr><td>Total</td><td>112,791</td><td>24,021</td><td>142,867</td><td>12,846</td><td>1,547</td></tr></tbody></table>

Source: White Paper on Foreigners' Issue' (Home & Political Department, Government of Assam 2012) 17 s 2.3.2 •

## 2.3. Sonowal v. Union of India: the politicisation of Justice

In 2000, the IMDT Act was elicited in a petition to the SC by Sarbananda Sonowal, later the chief minister of Assam (2016-2021), former president of the AASU, former AGP Member of the Legislative Assembly, and member of Parliament. He argued that the Act is *ultra vires* the Constitution because it:

> [...]is wholly arbitrary, unreasonable and discriminates against a class of citizens of India, making it impossible for citizens who are residents in Assam to secure the detection and deportation of foreigners from Indian soil.<fnref n="639" />

The SC ruled in his favour in *Sarbananda Sonowal v. Union of India* (2005).<fnref n="640" /> It viewed illegal migration of Bangladeshi nationals as a threat to the state of Assam and judged in 2005 that the 1983 IMDT Act is “*ultra vires* of the Constitution of India and are struck down”.<fnref n="641" /> The Court scrapped the IMDT Act for being discriminatory. In its view, the Act violated Articles 14 (equality before the law) and 355 of the Constitution (duty of the Union to protect States against external aggression and internal disturbance).

The application of the IMDT Act in Assam was denying these immigrants their rights, in comparison to the situation of illegal immigrants in West Bengal, Tripura or Meghalaya. Additionally, it denied the core protection guaranteed to individuals under the Foreigners

<footnote n="639">⁶³⁹ *Sarbananda Sonowal* (n 645).</footnote>

<footnote n="640">⁶⁴⁰ In September 2021, this case was quoted 212 times by High Courts and 7 times by the SC.</footnote>

<footnote n="641">⁶⁴¹ *Sarbananda Sonowal* (n 645) para 58.</footnote>
Act.<fnref n="642" /> Moreover, the judges held that the IMDT Act was a major obstacle to the identification and deportation of illegal migrants.<fnref n="643" /> They observed that the conviction rate under this act as less than half a per cent of the cases initiated.<fnref n="644" /> Yet while admitting violation of Article 14, the Court accepted and even justified the practice of repressive laws and policies in response to illegal migration.<fnref n="645" />

This ruling contradicted the 1994 historical decision of the SC in S.R. Bommai v. Union of India,<fnref n="646" /> where the Court tried to put an end to abuses of Article 356 of the Constitution by imposing limits. This article allows the President to rule in states by proclaiming a state of emergency. The Court set a contradictory precedent in the Sonowal judgment by arguing that the Centre can intervene in a situation of external aggression and internal disturbance, and even announce and establish an emergency statute in the state, under the President's prerogative.

For the Court, migration is therefore not only an illegal entry into foreign territory but an act of aggression. It considered that the IMDT Act failed to detect illegal immigrants, and led to the Central government's failure to protect Assamese citizens against "external aggression and internal disturbance". In the absence of a definition of "aggression" the Court considered interpretations from the U.S SC, the United Kingdom, and international law (resolution 3314 of the UN General Assembly).<fnref n="647" /> Finally, the Court argued that aggression corresponds to:

> invasion of unarmed men in totally unmanageable proportion to not only impair the economic and political well-being of the receiving victim State but to threaten its very existence.<fnref n="648" />

<footnote n="642">⁶⁴² *ibid* 5.</footnote>

<footnote n="643">⁶⁴³ " [...] there cannot be even a slightest doubt that the application of the IMDT Act and the Rules made thereunder in the State of Assam has created the biggest hurdle and is the main impediment or barrier in identification and deportation of illegal migrants.", in *ibid* 39.</footnote>

<footnote n="644">⁶⁴⁴ *ibid* 28.</footnote>

<footnote n="645">⁶⁴⁵ 'Designed to Exclude: How India's Court Are Allowing Foreigners Tribunals to Render People Stateless in Assam' (Amnesty International India 2019) 5.</footnote>

<footnote n="646">⁶⁴⁶ S. R. Bommai (n 523).</footnote>

<footnote n="647">⁶⁴⁷ *Sarbananda Sonowal* (n 645) paras 35–36; *Chae Chan Ping v United States* [1889] SC of the US 130 U.S. 581; Alfred Denning, *The Due Process of Law* (OUP 1980); ‘Resolution 3314 (XXIX): Definition of Aggression’ (General Assembly 1974).</footnote>

<footnote n="648">⁶⁴⁸ *Sarbananda Sonowal* (n 645) para 34.</footnote>
Furthermore, the Court did not hesitate to mobilise colonial assessments. It used C.S. Mullan's 1931 Report, as well as the 1998 report of the Government of Assam on "Illegal Migration into Assam",<fnref n="649" /> which not only assumed that irregular immigration was the core cause for ethnic conflicts in Assam, but equally, linked it to external aggression by equating illegal immigration and "external aggression". The 1998 report, attributes demographic alteration to illegal migration, considered a threat to Assamese identity and national security. Yet, it is not grounded on precise data but on "broad estimates",<fnref n="650" /> on discussions with political leaders and the Indian Ambassador in Bangladesh at that time.<fnref n="651" /> The judges marked out the migrant on account of being an alien, but also Muslim, thus duplicating the dominant political-ideological positions of the political party in power at the Centre.

In light of a global analyses of political interference in the judiciary, this report does strengthen a political statement. The ideological position of judges is often used to explain their rulings, yet political proofs also play a critical role.

For civil society organizations in Assam, the SC's use of the 1998 report was questionable.<fnref n="652" /> In fact, throughout the 1998 report, certain words used repeatedly lent it a xenophobic character for they legitimised discrimination of individuals of Bengali origin, whether Muslims or Hindu: "demographic invasion",<fnref n="653" /> "grave danger to our national security",<fnref n="654" /> "illegal migrant",<fnref n="655" /> "insurgency".<fnref n="656" /> The Court alludes to another report of the General Secretaries to the Seventh General Conference of the North-Eastern Congress (I) Co-Ordination Committee of 3 July 1992:

> The silent and invidious demographic invasion of Assam may result in the loss of the geostrategically vital districts of lower Assam. The influx of these illegal migrants is **turning these districts into a Muslim majority region**. It will then only be a matter of time when a demand for their merger with Bangladesh may be made.

<footnote n="649">⁶⁴⁹ ‘Illegal Migration into Assam’ (The Governor of Assam 1998) D. O. No. GSAG.3/98/.</footnote>

<footnote n="650">⁶⁵⁰ ibid 7.</footnote>

<footnote n="651">⁶⁵¹ Aman Wadud (Exploring the right to nationality in the context of India, 6 February 2021); Aman Wadud, ‘Judiciary Must Re-Examine How It Has Viewed Citizenship Question in Assam’ *The Indian Express* (24 September 2021).</footnote>

<footnote n="652">⁶⁵² ‘Designed to Exclude: How India’s Court Are Allowing Foreigners Tribunals to Render People Stateless in Assam’ (n 655) 13.</footnote>

<footnote n="653">⁶⁵³ ‘Illegal Migration into Assam’ (n 659) ch II para 24.</footnote>

<footnote n="654">⁶⁵⁴ ‘Illegal Migration into Assam’ (n 659) Appendix, para 1.</footnote>

<footnote n="655">⁶⁵⁵ 63 times throughout the report, see: ibid.</footnote>

<footnote n="656">⁶⁵⁶ 3 times throughout the report, see: ibid. [emphasis added]</footnote>
The rapid growth of international Islamic fundamentalism may provide a driving force for this demand. In this context, it is pertinent that Bangladesh has long discarded secularism and has chosen to become an Islamic State.<fnref n="657" />

The judgement referred to the demographic shifts in Assam in terms of its linguistic profile (as was the case earlier) but as the above quote shows, more importantly, in terms of the religious profile of the state. It emphasised the increasing population, and the threat it posed not only to Assam but to the whole of India.<fnref n="658" /> Both the Assam State and the central government supported the WP. In fact, the BJP argued before the court that not only was the IMDT Act discriminatory, as it was applicable only to one state in India, but equally, that the migration flux directly affected internal security.<fnref n="659" />

The case underlines the impact of the question of illegal migrants from Bangladesh, and the xenophobia it produced. It also highlights the interventions of central political parties who used the situation to win public support, and expand their electorate to consolidate a Hindu political ideology.

Despite the 2005 Court ruling, which declared the IMDT Act unconstitutional, the Congress government passed two significant notifications in 2006, altering legal procedures to deal with foreigners: (i) the Foreigners (Tribunals) Amendment Order 2006, which, contrary to the 1964 version, applies to every Indian state and the suspected foreigner has to prove an Indian citizenship; (ii) the Foreigners (Tribunals for Assam) Order, 2006 where like the IMDT Act, 1983, the complainant must prove his claim of non-Indian citizenship of the suspected individual. This in itself was not an innovation. Article 2(1) of the FTO, 1964, established that a tribunal may be constituted to verify an individual's citizenship.<fnref n="660" /> More importantly, the

<footnote n="657">⁶⁵⁷ *Sarbananda Sonowal* (n 645) para 24.</footnote>

<footnote n="658">⁶⁵⁸ Interestingly for some Assamese, if illegal-immigrant where not concentrate only in Assam but would be “spread” in India, it would not be an issue. Roy (n 281); Interview with Barua (n 411).</footnote>

<footnote n="659">⁶⁵⁹ *Sarbananda Sonowal* (n 645) para 5.</footnote>

<footnote n="660">⁶⁶⁰ Article 2(1) FTO, 1964: “The Central Government may by order, refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946 (31 of 1946) to a Tribunal to be constituted for the purpose, for its opinion.”</footnote>
2006 Order's core principle held that no one should be and would be deported without a hearing.

However, in practice, border police practices deny the right to a fair hearing.<fnref n="661" />

In the Foreigners (Tribunals for Assam) Order, 2006, the tribunal was declared a mandatory tribunal. Despite changes made by the Congress Government, it was declared by the SC in 2006 to be "unreasonable and issued in an arbitrary exercise of power", and hence illegal.<fnref n="662" /> The central government was held not to have established proper rules for the tribunals to determine this illegality, despite the Court's order.<fnref n="663" /> Four months were given to establish these tribunals.

### 3. Phase one: Foreigners Tribunals

The FT purpose is to establish who is a foreigner and who is an Indian citizen only in Assam, contrary to the 1964 FTO. With the termination of the IMDT Act by the SC, FT became the only means to deprive an individual of nationality. The 21 FT replaced the 21 IMDT Tribunals.<fnref n="664" /> The administration, staff and judges of the IMDT Tribunals were hired by the FT. This was in fact not an untoward development. With the end of the IMDT Tribunals, FT cases have increased (Table 3).

In 2023, 100 FT were functioning in Assam: 36 FT until 2014 and 64 were added after 2014.<fnref n="665" /> Depending on the district and the number of cases, their number varies from 2-3 to 10.<fnref n="666" /> In 2019, in the aftermath of the NRC, the Assamese government wished to establish 200 more FT.<fnref n="667" /> According to an Assamese senior official in the ministry for national security, 800 were

<footnote n="661">⁶⁶¹ Shuchi Purohit, 'Foreigners' Tribunals' (Parichay - The Blog, 10 July 2021).</footnote>

<footnote n="662">⁶⁶² *Sarbananda Sonowal (II) v Union of India* [2006] SC of India WP (C) No. 117 of 2006 65.</footnote>

<footnote n="663">⁶⁶³ Santosh Chaubey, 'How Congress Misused Foreigners Act in Assam' *India Today* (4 August 2018).</footnote>

<footnote n="664">⁶⁶⁴ 'White Paper on Foreigners' Issue' (Home & Political Department, Government of Assam 2012) 17 s 2.3.5.</footnote>

<footnote n="665">⁶⁶⁵ 'Foreigners Tribunal' (*Government of Assam, Home & Political*); Interview with Hemadri (n 420).</footnote>

<footnote n="666">⁶⁶⁶ Interview with Hemadri (n 420).</footnote>

<footnote n="667">⁶⁶⁷ 'Assam Illegal Immigrants to Be Identified Digitally' *Northeast Now* (31 December 2019).</footnote>
being envisaged.<fnref n="668" /> However, on 22 September 2022, members' terms were not extended by the Political (B) Department.<fnref n="669" />

<table><caption>Table 3: Identification and deportation of illegal migrants before the FT</caption><thead><tr><td>Period</td><td>Cases referred</td><td>Cases disposed</td><td>Cases pending</td><td>Number of persons declared as foreigners</td><td>Numbers of deportations</td></tr></thead><tbody><tr><td>1985 – 1990</td><td>32,991</td><td>15,929</td><td>17,062</td><td>14,801</td><td>133</td></tr><tr><td>1991 – 1995</td><td>482</td><td>5,909</td><td>11,635</td><td>4,005</td><td>267</td></tr><tr><td>1996 – 2000</td><td>2,986</td><td>3,552</td><td>11,069</td><td>6,026</td><td>235</td></tr><tr><td>2001 – 2005</td><td>6,094</td><td>2,216</td><td>14,947</td><td>4,593</td><td>39</td></tr><tr><td>2006 – July 2012</td><td>65,666</td><td>45,456</td><td>35,157</td><td>12,913</td><td>221</td></tr><tr><td>Total</td><td>108,219</td><td>73,062</td><td>89,870</td><td>42,338</td><td>895</td></tr></tbody></table>

Indication: no general data can be found after 2012 on the FT

Source: White Paper on Foreigners' Issue (Home & Political Department, Government of Assam 2012) 18 s 2.3.5 •

Two inter-connected issues emerged with FT functioning. Firstly, FT rulings seem to target the Muslim community. Of 818 orders passed by FT No. 4 in Hajo (2017 and 2019), 98% of the individuals were Muslim<fnref n="670" /> in a town where 44% of the population is Muslim. This data underlines the high percentage of Muslims before FT. Secondly, these tribunals question the concept of independence and impartiality of judicial organs. In theory, these two core concepts protect individuals against arbitrary laws and arbitrary application of legislation. They are accepted fundamental elements of the rule of law. From Montesquieu, and Rousseau to Sieyes

<footnote n="668">⁶⁶⁸ Rohini Mohan, “‘Worse than a Death Sentence”: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship” (n 414).</footnote>

<footnote n="669">⁶⁶⁹ Interview with Hemadri (n 420); Interview with Advocate Aman Wadud (5 October 2022), Gauhati (India), human rights lawyer, by Zoom; ‘Cloud over 200 Additional Foreigners’ Tribunals, in Assam’ *The Hindu* (30 September 2022).</footnote>

<footnote n="670">⁶⁷⁰ ‘The Search for Foreigners in Assam – An Analysis of Cases Before a Foreigners’ Tribunal and the High Court’ (*Parichay – The Blog*, 23 June 2021).</footnote>
and Weber, enlightenment philosophers defended the importance of separation of powers between the legislature, executive and judiciary. The FT analysis reveals current challenges confronting the judiciary in the framework of the Indian legal system. Along with the separation between judiciary and executive, the rule of law equally concerns the competence and qualification of judges. Unqualified or insufficiently competent judicial judges can weaken the rule of law by questioning the judiciary's legitimacy.<fnref n="671" />

### 3.1. Procedural arrangements leading to Foreigners Tribunals

Individuals can be sent to the FT in three different situations: reference case through the Border Police, D voter with the Election Commission of India (ECI), and those excluded from the NRC.<fnref n="672" /> In these procedures, not only discriminatory practices, based on cultural and social contexts, increases individuals vulnerability before FTs, but more dangerously, it aggravates their invisibility.

#### 3.1.1. The role of Border Police

The Border Police is a branch of the police.<fnref n="673" /> Their inquiries, investigations and denunciations send individuals before FT, even before the NRC process. Whilst the numbers of “arrest” by the Border Police recently decreased due to Covid-19, discriminatory practices continue.<fnref n="674" /> However, statistics are not available for Border Police are protected from the Right

<footnote n="671">⁶⁷¹ *Union of India v Namit Sharma* [2013] SC of India 10 SCC 359; *Madras Bar Association v. Union of India* (n 523).</footnote>

<footnote n="672">⁶⁷² For the NRC exclusion see: Part 2 - Chapter 4.</footnote>

<footnote n="673">⁶⁷³ The Assamese Border Police established in 1962, gained organisational independence in 1974. Currently, 4,037 personnel are employed in the Border Organisation. One of their five objectives includes the detection and deportation of illegal foreigners. ‘History and Objectives | Assam Police’ (*Government of Assam, Home & Political, Assam Police*).</footnote>

<footnote n="674">⁶⁷⁴ Interview with Choudhury (n 416).</footnote>
to Information Act (RTI).<fnref n="675" /> Under no obligation to release data or information concerning their functioning,<fnref n="676" /> there is no check to their arbitrary practices.

Most of the cases handled by the Assamese lawyer, Aman Wadud, involving cases of nationality deprivation since 2015, are linked to Border Police actions. He argues that the Border Police implement the spirit of the NRC too zealously.<fnref n="677" />

Border Police investigations proceed in two phases: (i) a preliminary inquiry when it gives notice to the person, who then has twenty days to produce identity and birth documents; and (ii) in case citizenship has not been proved in the preliminary phase, the Superintendent of Police signs an official inquiry. The twenty-day period to deliver citizenship documents raises several problems: for migrant workers this is insufficient time; and often Border Police notifications do not reach individuals.<fnref n="678" /> In addition, according to Ravi Hemadri, in most cases inquiries are not even held.<fnref n="679" />

According to a Gauhati High Court ruling (2013) and civil society organisations, Border Police do not always follow procedures and investigatory guidelines,<fnref n="680" /> and abuse their powers in identifying alleged foreigners. For the human rights defender, Anjuman Ara Begum, systemic discrimination in FT has its source in Border Police work practices of respecting monthly quotas, even if these vary from one police station to another.<fnref n="681" />

This pressure pushes the Border Police to target individuals who cannot defend themselves, through the practice of “lookism”. The concept, emerging in 1978 in the U.S, refers to the prevalence of stereotypes and discrimination based on physical appearance. Whilst it frequently

<footnote n="675">⁶⁷⁵ The RTI Act came into force in October 2005 after being passed by the Indian Parliament in June 2005. It allows Indian citizens to request information to the government. For individuals below the poverty line, the application is free, for others a fee of 10 rupees will occur. The online RTI request form can be done through the following link: https://rtionline.gov.in/request/request.php</footnote>

<footnote n="676">⁶⁷⁶ Ipsita Chakravarty, ‘Declaring Foreigners: How Assam’s Border Police and Tribunals Form a Secretive System of Justice’ *Scroll.in* (19 August 2018).</footnote>

<footnote n="677">⁶⁷⁷ Interview with Advocate Wadud (n 679).</footnote>

<footnote n="678">⁶⁷⁸ Rohini Mohan, “‘Worse than a Death Sentence”: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship’ (n 414).</footnote>

<footnote n="679">⁶⁷⁹ Interview with Hemadri (n 420).</footnote>

<footnote n="680">⁶⁸⁰ Mohan, “‘Worse than a Death Sentence”: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship’ (n 414); *State of Assam v Moslem Mondal* [2013] Gauhati High Court 2013 (1) GLT (FB) 809.</footnote>

<footnote n="681">⁶⁸¹ Interview with Anjuman Ara Begum (24 May 2022); Interview with Advocate Wadud (n 679).</footnote>
underlies discriminatory practices in the workplace, in Assam, it draws upon widespread
cultural practices. Migrant workers or married women considered “suspicious” by locals or
simply marginalised people are more likely to be targeted on the basis of their attire (*lungis*) or
their physiognomy.<fnref n="682" /> As mentioned earlier, married women possess fewer administrative
documents in poor rural areas, a problem signalled by police officers, advocates and the state
prosecutor.

Thus, investigations are rare, and even when held, superficial and biased due to prevailing prejudices.<fnref n="683" /> In 1961, the Census Report declared that in Assam 220,691 immigrants had arrived from East Pakistan during 1951-1961.<fnref n="684" /> This census prompted the Border Police to pursue a policy of detection and deportation of any foreigner without any judicial process.<fnref n="685" />

Furthermore, investigation forms registering details of the individuals, supposedly filled by the police in the presence of individuals, are often left empty.<fnref n="686" /> One of the local lawyers practicing before the FT reported:

> In most cases, the reasons for making the reference are not properly explained. In some cases, the Border Police hands over blank inquiry reports with no grounds mentioned. It is common practice for the referral authorities to mechanically refer the cases to the Tribunal.<fnref n="687" />

In Dhubri – West district – a state prosecutor argued that errors in the application documents are committed deliberately:

> But the burden of proof lies on the accused. He is given no chance to question the referral authorities, even if they have made out a wrong case against him.<fnref n="688" />

<footnote n="682">⁶⁸² Chakravarty, ‘Declaring Foreigners: How Assam’s Border Police and Tribunals Form a Secretive System of Justice’ (n 686).</footnote>

<footnote n="683">⁶⁸³ Mohan, “‘Worse than a Death Sentence’: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship’ (n 414); Interview with Advocate Wadud (n 679).</footnote>

<footnote n="684">⁶⁸⁴ Pakytein, ‘Part I-A, General Report’ PRG 38(N) (D)/75 124.</footnote>

<footnote n="685">⁶⁸⁵ Purohit, ‘Foreigners’ Tribunals’ (n 671).</footnote>

<footnote n="686">⁶⁸⁶ Chakravarty, ‘Declaring Foreigners: How Assam’s Border Police and Tribunals Form a Secretive System of Justice’ (n 686).</footnote>

<footnote n="687">⁶⁸⁷ Interview on 4 November 2019, Guwahati, Assam, in ‘Designed to Exclude: How India’s Court Are Allowing Foreigners Tribunals to Render People Stateless in Assam’ (n 655) 17; ‘The Search for Foreigners in Assam – An Analysis of Cases Before a Foreigners’ Tribunal and the High Court’ (n 680).</footnote>

<footnote n="688">⁶⁸⁸ Chakravarty, ‘Declaring Foreigners: How Assam’s Border Police and Tribunals Form a Secretive System of Justice’ (n 686).</footnote>
The burden of proof in fact, lies on the residents of Assam, who must produce documents proving their Indian citizenship before the Tribunal.

These abuses were highlighted in media reports on the detention of an Indian army serviceman and former employee of the Border Police, Mohammad Sanaulla. He was declared an illegal immigrant by the Boko tribunal in 2019.<fnref n="689" /> The policeman in charge of the complaint, Chandramal Das, argued that Sanaulla was not the individual he had investigated in May 2008 and August 2009 and a mix-up in the reports had occurred at the administrative level.<fnref n="690" /> This case, one amongst other, confirms the inefficiency of the State apparatus and increased individual vulnerability to administrative abuses.

### 3.1.2. *The “D” voters category*

The “D” letter added to some people’s names in Assam’s electoral lists, can lead the ECI, to refer them to the Border Police for further investigation. Denoting “doubtful” or “dubious”, may lead to the loss of voting rights, until their citizen status is cleared. In 1997, the ECI identified 2.20.209 ‘D’ voters.<fnref n="691" /> In *Mameza Khatun* (2015), the Court indicated that individuals’ whose cases were pending before FT automatically became ‘D’ voters in the electoral list.<fnref n="692" /> The ECI procedure appears arbitrary as executing officers exercised discretionary powers, without an investigation.<fnref n="693" /> On 2 July 2019, during the Lok Sabha session, Sri Abdul Khaleque – representing the Barpeta constituency in Assam – demanded the abolition of the ‘D’ voter system in the state as “Indian Citizens are being harassed”.<fnref n="694" /> However in 2021, ‘D’ voters still existed (Table 4). Individuals are often targeted through their

<footnote n="689">⁶⁸⁹ Ratnadip Choudhury, ‘Ex-Soldier Declared “Foreigner” In Assam Released From Detention Centre’ *NDTV* (8 June 2019).</footnote>

<footnote n="690">⁶⁹⁰ Ratnadip Choudhury, “‘Probe Report Fake”: Huge Twist After Army Man Declared Illegal Immigrant’ *NDTV* (4 June 2019).</footnote>

<footnote n="691">⁶⁹¹ Hemanta Kumar Nath, ‘1.08 Lakh D-Voters Barred from Casting Votes in Upcoming Assam Assembly Polls’ *India Today* (4 March 2021).</footnote>

<footnote n="692">⁶⁹² *Government of Assam v Mameza Khatun* [2015] Gauhati High Court WA No. 114 of 2011 [14].</footnote>

<footnote n="693">⁶⁹³ Prashant Bhushan and Cheryl D’souza, ‘Conduct of Foreigners Tribunals in Assam Is Questionable’ *The Indian Express* (20 September 2019); Sagar, ‘How Assam’s Foreigners Tribunals, Aided by the High Court, Function like Kangaroo Courts and Persecute Its Minorities’ (*The Caravan*, 6 November 2019).</footnote>

<footnote n="694">⁶⁹⁴ Written Answers to Questions: (xv) regarding publication of final NRC 2019.</footnote>
names, and Muslim and Bengali Hindus<fnref n="695" /> are disproportionately affected by the D-voters
system. Even local ethnic groups like the Rajbanshi from lower Assam became targets as they
bear names similar to Bengali Hindus.

Lawyers highlight the arbitrariness of this procedure. Advocate Riyaz Khan and Saadullah Hoque underlines two cases: (i) the individual was not marked as D voter in the 1966 to 2021 lists yet, received a D voter notice; (ii) after her divorce, a woman was listed as a voter in two separate places, yet in one, she was eligible to vote, whilst in the other she was declared a D voter.<fnref n="696" />

<caption>Table 4: Numbers of D voters in Assam districts in 2021</caption>

<footnote n="695">⁶⁹⁵ Nazimuddin Siddique, ‘Inside Assam’s Detention Camps: How the Current Citizenship Crisis Disenfranchises Indians’ (2020) 55 EPW 1, 3.</footnote>

<footnote n="696">⁶⁹⁶ Abdul Sikdar Rahman, ‘Preliminary Challenges to Jurisdiction’ (Foreigners’ Tribunals cases, Gauhati, 5 February 2022).</footnote>
<table><thead><tr><td></td><td>District</td><td>D-voters</td></tr></thead><tbody><tr><td>1</td><td>Barpeta</td><td>17,599</td></tr><tr><td>2</td><td>Sonitpur</td><td>16,358</td></tr><tr><td>3</td><td>Nagaon</td><td>10,688</td></tr><tr><td>4</td><td>Dhubri</td><td>8,208</td></tr><tr><td>5</td><td>Goalpara</td><td>6,430</td></tr><tr><td>6</td><td>Darrang</td><td>4,451</td></tr><tr><td>7</td><td>Morigaon</td><td>4,411</td></tr><tr><td>8</td><td>Kamrup (Metro)</td><td>4,245</td></tr><tr><td>9</td><td>Cachar</td><td>3,832</td></tr><tr><td>10</td><td>Biswanath</td><td>3,252</td></tr><tr><td>11</td><td>Baksa</td><td>2,616</td></tr><tr><td>12</td><td>Hojai</td><td>2,411</td></tr><tr><td>13</td><td>Golaghat</td><td>1,956</td></tr><tr><td>14</td><td>Kamrup</td><td>1,705</td></tr><tr><td>15</td><td>Karimganj</td><td>1,530</td></tr></tbody></table>

Note: the D-voters numbers may vary according to the newspaper

Source: Hemanta Kumar Nath, 1.08 lakh D-voters barred from casting votes in upcoming Assam assembly polls, India Today (4 March 2021)

The practice was questioned before the Gauhati High Court in *HRA Choudhury v. Election Commission of India* (2002), and rejected as illegal under section 16(1) of the Representation of Peoples Act, 1950:

(1) A person shall be disqualified for registration in an electoral roll if he — (a) is not a citizen of India; or (b) is of unsound mind and stands so declared by a competent court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offenses in connection with elections.<fnref n="697" />

In different rulings, the Gauhati High Court maintained the impermanent nature of this system.<fnref n="698" /> Even so, in *Assam Public Works* (2019), the SC argued that children of D voters can be deprived of nationality. Section 3(1)(c) of the CAA, 2004, excludes children born of illegal immigrant parents. Children born after 3 December 2004 will be excluded from the NRC, under

<footnote n="697">⁶⁹⁷ HRA Choudhury v Election Commission of India [2002] Gauhati High Court 2002 (1) GLT [16].</footnote>

<footnote n="698">⁶⁹⁸ Dharmananda Deb, ‘Citizenship Dilemma: Delay By Foreigners Tribunals Adding To The Woes Of “D” Marked Voters Of Assam’ *Livelaw.in* (18 June 2019).</footnote>
three clauses: (i) if their parents are D voters; (ii) are declared foreigners by the FT; and (iii) whose cases are pending in front of the FT.<fnref n="699" /> Consequently, a child born of an ‘illegal immigrant’ does not have access to Indian citizenship, and violating Article 7 of the CRC which obliges State Parties to the Convention to ensure that children are not left stateless.

Recently, in *Denny Zhao v. Netherlands* (2020), the HRC recalled State obligation regarding child protection from statelessness under Article 24§3 of the ICCPR.<fnref n="700" /> In this case, the Committee underscored the right of children to be specially protected as a minority.<fnref n="701" /> The State is obliged to adopt measures to ensure that every child has a nationality, and consequently, acquisition of nationality must not be discriminatory, especially with regard to the nationality status of one or both of parents.<fnref n="702" />

This significant ruling marks not only a first step for the Committee but paves the way for future decisions in regional jurisdictions, or in WP and national courts in India to defend the right of children to acquire a nationality.

<footnote n="699">⁶⁹⁹ Assam Public Works v Union of India [2019] SC of India WP (C) 274 of 2009 [1].</footnote>

<footnote n="700">⁷⁰⁰ *Zhao v Netherlands* [2020] HRC CCPR/C/130/D/2918/2016 [8.2]. Two individual opinions can be found on this case. Yadh Ben Achour's concurring opinion concerns the State's obligation and the absence of consideration by the Committee of the long jurisprudence since 1990s on article 2 of the Covenant and the 'incoherence' of the ruling concerning this article and its previous jurisprudence mainly in the case *Rabbae et al. v. Netherlands*. Hélène Tigroudja, on the contrary, points out the Committee's lack of elaboration on the other branch of nationality and its impact on individuals: recognition of legal personality (article 16) and human treatment (article 7). While the claimant did not base his demand on these two articles, the Committee should have, according to Hélène Tigroudja, considered it. Her analysis points to the African Court on Human and Peoples' Rights and the IACtHR jurisprudence. *Rabbae et al v Netherlands* [2016] HRC CCPR/C/117/D/2124/2011 [9.7]; *Yean and Bosico Girls v Dominican Republic* [2005] IACtHR Preliminary Objections, Merits, Reparations and Costs [134, 178]; *Expelled Dominicans and Haitians v Dominican Republic* [2014] IACtHR Preliminary Objections, Merits, Reparations and Costs [265-f]; *Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica* [1984] IACtHR Advisory Opinion OC-4/84, Series A, No. 4 [32-33]; *Open Society Justice Initiative v Côte d'Ivoire* [2015] African Commission on Human and Peoples' Rights Petition No. 318/06; *Penessis v United Republic of Tanzania* [2019] African Court on Human and Peoples' Rights No 013/2015 [87].</footnote>

<footnote n="701">⁷⁰¹ *Zhao* (n 710) para 8.2; ‘General Comment No. 17: Article 24 (Rights of the Child)’ (HRC 1989) para 4; *Mónaco de Gallicchio v Argentina* [1990] HRC CCPR/C/53/D/400/1990 [10.5].</footnote>

<footnote n="702">⁷⁰² *Zhao* (n 710) para 8.2; *Ali Aqsar Bakhtiyari and Roqaiha Bakhtiyari v Australia* [2003] HRC CCPR/C/79/D/1069/2002 [8].</footnote>
## 3.2. The weakening of judicial grounds

### 3.2.1. Recourse to quasi-judicial bodies

FT are quasi-judicial bodies, which determine citizenship under the Foreigners' Act, 1946.<fnref n="703" /> As quasi-judicial bodies, FT, are strictly speaking non-judicial bodies, empowered to interpret the law. It can be a public administrative agency, exercising similar power, and procedures as legal courts and judges. One of the core differences with a judicial organ remains the obligation for a quasi-judicial body to base its decision on conclusion of existing law, with no obligation to follow rules of evidence and procedure. In the *Indian National Congress (I)* case, the SC argued that quasi-judicial acts are different from an administrative act and quasi-judicial authorities are required to act according to the rules.<fnref n="704" />

The government has borrowed its forms and vocabulary from the judicial system to set up FT but strictly speaking these tribunals are not part of the judicial system. Nevertheless, the borrowed term "tribunal" suggests that the bodies' decisions would be based on judicial system procedures and respect of principles of neutrality and impartiality. Although FT are not an institution of the judicial system, they are expected to respect judicial norms and legal procedures.

Furthermore, they are quasi-judicial because established by the government. In theory, they are created to assist and expedite the judicial system. Yet, in practice they tend to slow down the process. According to Ravi Hemadri, some cases before the FT take 7 to 8 years to reach a conclusion.<fnref n="705" /> On an average, FTs take 3.3 years to rule over a case. In contrast, in the High Court, these cases generally take 1.3 years. In comparison non-FT cases take approximately 0.7 years.<fnref n="706" />

<footnote n="703">⁷⁰³ Dharmananda Deb, 'Foreigners Tribunals In Assam: Practice & Procedure' *Livelaw.in* (13 June 2019).</footnote>

<footnote n="704">⁷⁰⁴ *Indian National Congress (I) v Institute of Social Welfare* [2022] SC of India Appeal (civil) 3320-21 of 2001.</footnote>

<footnote n="705">⁷⁰⁵ Interview with Hemadri (n 420).</footnote>

<footnote n="706">⁷⁰⁶ Shruthi Naik and Leah Verghese, 'What 787 Cases in the Gauhati HC Tell Us About How "Suspected Foreigner" Cases Are Decided' (*The Wire*, 11 March 2020).</footnote>
Implemented under the FTO, 1964, FT are bound neither by criminal, civil procedure codes nor by the Indian Evidence Act. Consequently, as per the 1964 Order, FT regulate their own procedure, even though these may violate domestic law and IHRL. Two aspects were highlighted by Angshuman Choudhury: (i) cases are reopened; and (ii) procedures varies daily: some days a certain number of documents are required, the next day others.<fnref n="707" /> The *modus operandi* of declaring an individual Indian and thereafter a foreigner was revealed in a recent case of Hasina Bhanu. In August 2016, FT-I in Mangaldai declared Hasina Bhanu an Indian citizen. Yet, the Assam Border Police brought another case against Hasina Bhanu before the same FT in 2017, which declared her a foreigner in March 2021. The practice had been, declared ‘illegal’ by the SC in the *Abdul Kuddus* case, where it ruled that FT could not change their opinion on declaring an individual Indian or a foreigner.<fnref n="708" /> Nonetheless, in October 2021, Hasina Bhanu was arrested and sent to Tezpur detention camp. In December 2021, she was finally released through the intervention of the Gauhati High Court.<fnref n="709" /> These practices, promotes discriminatory and arbitrary practices. The SC and the Gauhati High Court stand on these questions shows their margin of action to regulate FT practices.<fnref n="710" />

FT clearly tend to go beyond their jurisdiction, issuing warrants and ordering arrests, detention or deportation of individuals, even in mid-proceedings.<fnref n="711" /> This abuse of power was sanctioned by the Gauhati High Court in 2011.<fnref n="712" /> Secondly, due to the nature of their bodies, the *res judicata* principle does not apply to FT as argued in *Amina Khatun v. Union of India* (2018).<fnref n="713" /> Under this principle, a case can be re-opened by the same parties after a ruling is made on the same issue.<fnref n="714" /> Yet, the SC overturned this principle in *Abdul Kuddus v. Union of India*

<footnote n="707">⁷⁰⁷ Interview with Choudhury (n 416).</footnote>

<footnote n="708">⁷⁰⁸ *Abdul Kuddus v Union of India* [2019] SC of India (2019) 6 SCC 304.</footnote>

<footnote n="709">⁷⁰⁹ Tora Argawala, ‘Gauhati High Court Orders Release of Woman First Declared “Indian”, Later a “Foreigner”’ *The Indian Express* (16 December 2021).</footnote>

<footnote n="710">⁷¹⁰ ‘Designed to Exclude: How India’s Court Are Allowing Foreigners Tribunals to Render People Stateless in Assam’ (n 655).</footnote>

<footnote n="711">⁷¹¹ ‘Institutional Discrimination and Statelessness in India’ (2020) 8.</footnote>

<footnote n="712">⁷¹² *Md Rustom Ali v The State of Assam* [2011] Gauhati High Court WP (C) No 3236/2009.</footnote>

<footnote n="713">⁷¹³ *Amina Khatun (musstt) v Union Of India* [2018] Guwahati High Court WP (C) Nos. 7339 of 2015 [65.3]. The argument relies on different SC rulings such as: *Pondicherry Khandi and Village Industries Bd v P Kulothangan*[2003] SC of India (2004) 1 SCC 68; *Workmen of The Straw Board Manufacturing Company Limited v M/s Straw Board Manufacturing Company Limited* [1974] SC of India (1974) 4 SCC 681.</footnote>

<footnote n="714">⁷¹⁴ Section 11 Code of Civil Procedure, 1908.</footnote>
*India* (2019), where it argued that FT while being a quasi-judicial organ still have civil consequences and therefore the *res judicata* doctrine applies.<fnref n="715" /> This ruling inflected the Gauhati High Court's approach. In *Jahir Ali v. Union of India* (2021),<fnref n="716" /> it argued that in the 2015 and 2018 rulings the FT did not have to follow the precedent of *Amina Khatun*. However, through the application of the *res judicata* principle, the Court asked the FT to review the case and see if the individual was the same person as in 2015. Finally, the individual was declared an Indian citizen in 2021.<fnref n="717" />

The use of such a body, highlights the situation's specificity. So far, all the cases mentioned afore relating to individual's nationality were treated by the judiciary. But in Assam, a new body has appeared, adapted to a political context. By establishing a quasi-judicial body, the executive trespasses in the judicial sphere. It borrows judicial tools to do work that is not in its domain. For advocate Sanjay Hedge, and an Assamese legal worker, FT are without any doubt part of the Indian judiciary, but Aman Wadud and Angshuman Choudhury disagree.<fnref n="718" /> FT are not treated as part of the judiciary, are not transparent and rulings are not available online. They raised the questions whether decisions related to constitutional rights should be delivered by an administration body. These differences of opinion invite an examination of FT through the angle of judicial functioning.

### 3.2.2. *Denial of due process*

FT exclusive competence on deciding foreigner status raises the question of due process as it leaves people mainly women and children vulnerable to an abusive application of law.<fnref n="719" />

<footnote n="715">⁷¹⁵ Abdul Kuddus v Union of India (n 718) para 23.</footnote>

<footnote n="716">⁷¹⁶ Jahir Ali was declared a foreigner by the FT of Mangaldai in 2018 even though in 2015 the same FT declared him an Indian citizen. *Jahir Ali v Union of India* [2021] Gauhati High Court WP (C) No. 3402/2020.</footnote>

<footnote n="717">⁷¹⁷ In the following cases individuals were declared Indian and subsequently foreigners by the FT in two different rulings. The Court considered the *res judicata* principle and declared the petitioners as Indian citizens. In fact, in the Bulbuli Bibi case, the Court argued that the small difference in the names of the petitioners was minor and that the individual was the same. *Alal Uddin v Union of India* [2021] Gauhati High Court WP (C) 3172/2020; *Bulbuli Bibi v Union of India* [2021] Gauhati High Court WP (C) 7810/2019.</footnote>

<footnote n="718">⁷¹⁸ Interview with Advocate Wadud (n 679); Interview with Advocate Sanjay Hegde (26 October 2022), New Delhi (India); Interview with Choudhury (n 416); Interview with Anonymous (18 October 2022).</footnote>

<footnote n="719">⁷¹⁹ ‘Human Rights and Arbitrary Deprivation of Nationality: Report of the Secretary General’ (n 103) para 32.</footnote>
Due process entails the right to be treated fairly by the administration of justice, and places limitation on laws and legal proceedings to guarantee fundamental justice and fairness. The absence of consideration of women in the Indian social, cultural and economic systems, and their difficulty to access required administrative documents raises questions about due process in FT. The 2017 *Manowara Bewa* case, highlighted this element.<fnref n="720" /> The Gauhati High Court, declared that the *Gaon panchayats* certificates were of a private nature, and thus could not be accepted by the Tribunal as proof of citizenship. However, for married women under 18, the *Gaon Panchayats* certificate provided proof of their permanent residence.<fnref n="721" /> This new regulation, negatively affected married women's right to nationality, as women from the poor classes often do not possess a birth certificate. With this new rule, the Court not only turned a blind eye to women's vulnerable in India, especially in patriarchal communities, and poor areas, marked by low marriage age, and illiteracy. Women thus have greater difficulty in establishing a legal link with their parents (graphic 7). Headmen from the parents' or husbands' villages can produce the necessary certificate, acceptable only on condition that the headman bring a record of the life events. Still, they are often rejected due to insufficient evidence produced.<fnref n="722" /> Furthermore, oral evidence is frequently not examined particularly in cases of parentage and kin relationship, where it is decisive to prove residency.<fnref n="723" />

*Graphic 7: Median age at first marriage or union among women aged 25 to 49 years, by wealth quintile in India in 2014*

<footnote n="720">⁷²⁰ *Manowara Bewa v Union of India* [2017] Gauhati High Court WP (C) No. 2634 of 2016 [43.3].</footnote>

<footnote n="721">⁷²¹ ‘Designed to Exclude: How India’s Court Are Allowing Foreigners Tribunals to Render People Stateless in Assam’ (n 655) 18.</footnote>

<footnote n="722">⁷²² Rohini Mohan, ““Worse than a Death Sentence”: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship’ (n 414).</footnote>

<footnote n="723">⁷²³ *Asia Khatoon v Union of India* [2019] Gauhati High Court WP (C) 4020/2017; Section 50 Indian Evidence Act, 1872 “In a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony without support of documentary evidence is wholly insignificant.”.</footnote>
<figure><img src="image_10.png" /></figure>

Source: 'Ending Child Marriage: Progress and Prospects' (UNICEF 2014) 3.

In rural areas, child marriages and lack of education limits women's administrative papers to either the voter list or ration card, where they appear under their husband's name. Hence, no official record can prove their link with their parents. In Kamrup Rural, nearly 71% of the women were thus declared illegal immigrants.<fnref n="724" />

### 3.2.3. Mobilising criminal and civil law

Using the proper legal vocabulary to analyse FT practices proves problematic. In theory, as FT cases are not classified as criminal, the tribunal is neither bound by criminal nor by civil procedure codes. However, the analyses of FT procedures mainly around burden of proof and type of “punishment”, raises questions about the use of specific IHRL concepts. A mixture of civil and criminal law practices can be found. To begin with, the burden of proof follows civil law as it falls upon the plaintiff, who must produce evidence of nationality. It also follows criminal law as the case is filed by government institutions and administrations and may result in the incarceration of the plaintiff.

The mix between two branches of law produces an adapted vocabulary particularly surrounding the right to a fair trial. According to the HRC, the right to a fair trial<fnref n="725" /> concerns individuals

<footnote n="724">⁷²⁴ Rohini Mohan, “Worse than a Death Sentence”: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship’ (n 414).</footnote>

<footnote n="725">⁷²⁵ Articles 10 and 11 UDHR; Article 14 ICCPR.</footnote>
facing criminal charges<fnref n="726" /> or their rights and obligations in a suit at law. The civil character of
this right according to the Committee, is based on its nature rather than the legal forum provided
by a national legal system to determine specific rights.<fnref n="727" /> From a civil perspective, the right to
a fair trial encompasses judicial procedures around the rights of contract, property, torts in the
field of private law, administrative law, and other procedures which must be evaluated on a
case-by-case basis.<fnref n="728" />

Though neither linked to criminal nor civil procedure codes, FT practices highlight a
problematic approach to law. They do not fall within a clearly distinguishable set of laws,
criminal or civil, for they mobilise aspects of each category, which is quite unsettling. From a
legal perspective, this introduces the necessity to abandon a traditional approach that considers
rights to be rooted in specific legal frameworks. Consequently, the concept of the right to a fair
trial helps to understand the illegality of FT approach to individual loss of right and liberty.

3.3. Tracing illegal procedures through the right to a fair trial

Despite evidence of clear violations of individuals rights, the situation in Assam does not
lend itself to a simple analysis. While in practice, the deprivation of nationality process is easily
summarised, the legal aspect remains difficult to expose, and from a legal perspective illegality
of acts can be complex to exercise.

3.3.1. *Judging without justification*

While visible differences between Assamese and non-Assamese can be found,<fnref n="729" /> this
should not lead to individuals being labelled illegal foreigners. The Indian SC argued in

<footnote n="726">⁷²⁶ It corresponds to acts punishable under domestic criminal law or acts which are criminal in nature and therefore must be regarded as penal due to the severity of the act. *Paul Perterer v Austria* [2004] HRC CCPR/C/81/D/1015/2001 [9.2].</footnote>

<footnote n="727">⁷²⁷ *YL v Canada* [1986] HRC CCPR/C/27/D/112/1981 [9.1-9.2].</footnote>

<footnote n="728">⁷²⁸ ‘General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial’ (HRC 2007) CCPR/C/GC/32.</footnote>

<footnote n="729">⁷²⁹ Interview with Barua (n 411).</footnote>
*Sarbananda Sonowal (II)* (2006) that grounds on which individuals are suspected must be reasonable and relevant.<fnref n="730" /> Therefore, if the suspicion is based on the individual's clothing, this motif is not valid as sartorial difference is acceptable and thus constitutes irrelevant evidence. In that case, the Tribunal would not be able to issue a ruling and would reject the inquiry against the individual. Yet in practice, as highlighted earlier, individuals are targeted due to social suspicions, based mainly on appearance or even accent.

As quasi-judicial bodies, FT do not need to follow rules of evidence and procedure. Yet, a minimum of procedure is established through Section 3(1) of the FTO which argues that once the Tribunal rules on the issue, the individual receives a copy within ten days, on the core motifs on whose grounds he or she is alleged to be a foreigner.<fnref n="731" /> However, in practice no uniform procedure has been adopted or established by Tribunals for the notification, and the grounds are rarely mentioned in the notices. Furthermore, no written statements, exhibited documents or witness depositions are given.<fnref n="732" /> This method, justified by tribunal members and Border Police officers, is due to the absence of updated records by individuals who live on islands, are victims of climate change, and inclined to go into hiding on receiving the summons.<fnref n="733" /> Yet, these justifications can be very easily responded for, judges are aware that Border Police often declare they cannot find the accused without any justification.

### 3.3.2. Uses of ex-parte rulings

Once a notice is issued, individuals are required to appear before the Tribunal. In case of absence, they are *in absentia* declared foreigner.<fnref n="734" /> However, individuals can also contest and

<footnote n="730">⁷³⁰ *Sarbananda Sonowal (II)* (n 672) para 60.</footnote>

<footnote n="731">⁷³¹ Section 3(1) FTO.</footnote>

<footnote n="732">⁷³² ‘Designed to Exclude: How India’s Court Are Allowing Foreigners Tribunals to Render People Stateless in Assam’ (n 655) 23.</footnote>

<footnote n="733">⁷³³ Rohini Mohan, “‘Worse than a Death Sentence”: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship’ (n 414).</footnote>

<footnote n="734">⁷³⁴ *State of Assam v Moslem Mondal* (n 690).</footnote>
appeal their case within 120 days.<fnref n="735" /> Though possible, the Foreigners Act and the FTO have not established a specific appeal body to the FT. On 30 May 2019, the Central Government amended the FTO, 1964, to create the Foreigners (Tribunals) Amendment Order, 2019, which allows appeals to be made if individuals are not satisfied with the outcome of claims and objections filed against the NRC.

Appeals must be made to the Gauhati High Court in the Assamese case, and to the SC through a writ jurisdiction. In practice, appeal is restricted,<fnref n="736" /> and cases often get blocked at the High Court.<fnref n="737" />

Besides, according to advocate Wadud a structural problem occurs. High Court cases not only are pending, but acts cannot be challenged in the appeal. Even though that is the most important element in these cases, the High Court only considers the jurisdiction issue. Furthermore, because of this structural issue lawyers have less chance of winning cases.<fnref n="738" /> In addition, materials impediments like geographical location, costs, or appeal duration prevent accused persons from appealing. The lockdown during the Covid-19 pandemic, and floods in the state, further slowed the process. People whose names are not on the NRC list, have not received rejection slips, without which they cannot challenge their exclusion before the FT.<fnref n="739" /> This restriction of the right to appeal erodes respect of the right to fair trial before FT, as the essential aim of the right to appeal is to ensure that rulings are not final, and Higher Courts can rectify prejudicial errors.<fnref n="740" /> Judicial violation of this right accentuates the vulnerability of marginalised and minority groups through abusive application of the law.<fnref n="741" />

<footnote n="735">⁷³⁵ Interestingly, the right to appeal is not absolute and States can establish restrictions on this right. However the ICCPR does protect this right (Article 14§5). ‘Assam NRC Final List 2019: Over 19 Lakh Excluded, 3.11 Crore Included in List’ *The Indian Express* (31 August 2019).</footnote>

<footnote n="736">⁷³⁶ *State of Assam v Moslem Mondal* (n 690).</footnote>

<footnote n="737">⁷³⁷ Interview with Anonymous (n 728).</footnote>

<footnote n="738">⁷³⁸ Interview with Advocate Wadud (n 679).</footnote>

<footnote n="739">⁷³⁹ Umanand Jaiswal, ‘Assam Wants Fresh Scan on a Part of NRC’ *The Telegraph online* (2 September 2020).</footnote>

<footnote n="740">⁷⁴⁰ Article 14§5 ICCPR; ‘General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial’ (n 738).</footnote>

<footnote n="741">⁷⁴¹ This element of vulnerability has been highlighted by the report of the UN Secretary General: ‘Human Rights and Arbitrary Deprivation of Nationality: Report of the Secretary General’ (n 103) para 32.</footnote>
In 2021, Gauhati High Court Judge Kotiswar Singh, reputed for invalidating FT rulings argued for the importance of FT analysing evidence produced rather than by way of default as done in *ex-parte* cases. In the same case, he highlighted the correlation between citizenship and the right to dignity:

> It is through citizenship that a person can enjoy and enforce fundamental rights and other legal rights conferred by the Constitution and other statutes, without which a person cannot lead a meaningful life with dignity.<fnref n="742" />

Generally, these *ex-parte* rulings occurred when notices were not duly issued. In Kamrup Rural district, FT judge communicated that over a period of six months, every individual was declared an illegal immigrant because of his/her absence during the hearing, similarly in Hajo tribunal, over a period of six months in 2018, all the 299 judgments declared people illegal foreigners in the physical absence of the individual.<fnref n="743" />

For advocate Wadud, two reasons explain these *ex-parte* rulings: (i) before the NRC people were not aware of the process, and often on receiving sudden notices simply avoided tribunals; (ii) notice issues were not delivered properly and often deposited in strange places (trees, lamps, shops) so that people were unaware of their convocation.<fnref n="744" /> Thus, Amrit Lal, an Assamese social worker, discovered that his mother had been declared an illegal immigrant on the suspension of the family ration card. *Ex-parte* practices in a sense question the Indian judiciary's capacity to act against a misuse of law.

From 1985 to 28 February 2019, 63,959 individuals in Assam were declared foreigners through the practice of *ex-parte* opinions.<fnref n="745" /> Till 2016, 80,194 people were declared foreigners by the FT, among them 26,026 cases (32%) were by *ex-parte* judgments.<fnref n="746" />

<footnote n="742">⁷⁴² Khadiza Begum @Khudeza v Union of India, the Election Commissioner of India, the State of Assam [2021] Gauhati High Court WP(C)/6725/2019.</footnote>

<footnote n="743">⁷⁴³ Rohini Mohan, ""Worse than a Death Sentence": Inside Assam's Sham Trials That Could Strip Millions of Citizenship' (n 414).</footnote>

<footnote n="744">⁷⁴⁴ Interview with Advocate Wadud (n 679).</footnote>

<footnote n="745">⁷⁴⁵ Lok Sabha Unstarred Question No. 1724 2019.</footnote>

<footnote n="746">⁷⁴⁶ Aman Wadud in *Between Hatred And Fear: Surviving Detention In Assam* (Directed by Amnesty International India, 2018) pt 5:30.</footnote>
The right to be present<sup>747</sup> is a necessary component of the right to a fair trial, and is often taken for granted.<sup>748</sup> Variations often exist from one country to another but more importantly between fields (civil law and criminal courts). The right to a fair trial is linked to other rights: mainly, to understand the case charges or be present during its hearing. When individuals are unaware of the grounds on which they are being charged, and when the burden of proof relies on the person alleged to be a foreigner, the grounds of right to a fair trial are weakened. FT practices, render almost impossible to present a coherent case before the judges, especially when individuals are mostly illiterate, poor and have difficulty accessing legal aid. Although the Legal Services Authorities Act, 1987 provides free legal aid for marginalised individuals, in practice this appears ineffective.

In the cases analysed between 2017 and 2019 at Hajo, 96% of the rulings were *ex-parte*, and in none did the police present evidence. Because the burden of proof lay on individuals, absence of evidence led to them being declared Bangladeshi.<sup>749</sup> Additionally, the cases were decided in a period of 39 days, starting with the date of receipt of the report.<sup>750</sup> Only in 31 cases were individuals allowed to refute the allegations. These cases were passed under Judge Giti Kakati Das, who subsequently saw her contract terminated, as she had not declared a sufficient number of foreigners.<sup>751</sup>

Recently, in *Asor Uddin v. Union of India* (2021) concerning *ex-parte* rulings by the FT, the Gauhati High Court ruled the need for the petitioner to appear before the FT as:

> citizenship, being an important right of a person, ordinarily, should be decided on the basis of merit by considering the material evidences that may be adduced by the person concerned **and not by way of default as happened in the present case**<sup>752</sup>

While this ruling signals an abuse of *ex-parte* practices, the judgment does not highlight the FT abusive practice in serving notices to individuals. In *Kabir Uddin* (2021) where the petitioner was unaware he had been declared a foreigner by FT in an *ex-parte* decision, the Gauhati High Court argued that Order 3(5) of the FTO did not consider posting notices in public places as a

<footnote n="747">⁷⁴⁷ Article 14§3(d) ICCPR.</footnote>

<footnote n="748">⁷⁴⁸ Amal Clooney and Philippa Webb, *The Right to a Fair Trial in International Law* (OUP 2021) 446.</footnote>

<footnote n="749">⁷⁴⁹ ‘The Search for Foreigners in Assam – An Analysis of Cases Before a Foreigners’ Tribunal and the High Court’ (n 680).</footnote>

<footnote n="750">⁷⁵⁰ ibid.</footnote>

<footnote n="751">⁷⁵¹ *Mrs Mamoni Rajkumari v The State of Assam* [2017] Gauhati High Court WP (C) Nos. 4476/2017 & Ors.</footnote>

<footnote n="752">⁷⁵² *Asor Uddin v Union of India* [2021] Gauhati High Court WP (C) 6544/2019 [7], [emphasis added].</footnote>
practice to serve notice.<fnref n="753" /> Consequently, the notice was not delivered properly, therefore the *ex-parte* practice should not continue. In this ruling the High Court argued that the Tribunal should take necessary measures to serve notices properly to individuals.

Although the Gauhati High Court unmasked FT negligence with the practice of *ex-parte* through notifications, it did not clearly denounce this system's abuse on citizenship, and the judicial structural problems in the functioning of the Tribunals.<fnref n="754" />

Once declared a foreigner in absentia, the individual has 30 days to challenge the ruling. According to the *Moslem Mandal* case, the FT may review its decisions if the defendant files an application within 30 days from the first judgment, or if he proves that he was prevented by a sufficient cause from appearing before the Tribunal.<fnref n="755" /> The individual must submit a written statement to the tribunal, with photocopies of documents showing his or her Indian citizenship. Two categories of documents are required: (i) proof of their ancestors' arrival in India before 1971, the Assam accord cut-off date; (ii) proof of their ancestry.<fnref n="756" />

In 41% of FT cases that reached the Gauhati High Court, between 2017-2019, 61% had their names on electoral rolls, and 39% had residential certificates or certificates from the panchayat. However, the FT found this documentation unsatisfactory in 66% of the cases, and in 38% of cases the documentation was refused due to spellings that did not match. In fact, documents with irregularities are generally put aside,<fnref n="757" /> and it has been noted that illegally obtained documents are accepted.<fnref n="758" /> Furthermore, in 71% of cases, copies of documents were rejected on two grounds: firstly, the copies were not certified; secondly, due to absence of the person

<footnote n="753">⁷⁵³ Kabir Uddin v Union of India, [2021] Gauhati High Court WP (C) 7901/2019.</footnote>

<footnote n="754">⁷⁵⁴ See: Wadud, 'Judiciary Must Re-Examine How It Has Viewed Citizenship Question in Assam' (n 661).</footnote>

<footnote n="755">⁷⁵⁵ Dharmananda Deb, 'Foreigners Tribunals In Assam: Practice & Procedure' (n 713).</footnote>

<footnote n="756">⁷⁵⁶ 'Designed to Exclude: How India's Court Are Allowing Foreigners Tribunals to Render People Stateless in Assam' (n 655) 30.</footnote>

<footnote n="757">⁷⁵⁷ In the *Sultana Begum* case, the Court held that documents which improperly use the state emblem will not be accepted. *Sultana Begum v The Union of India* [2019] Gauhati High Court WP (C) No. 7115/2016 [6].</footnote>

<footnote n="758">⁷⁵⁸ “even if, evidence is illegally obtained it is admissible.”, *R M Malkani v State Of Maharashtra* [1972] SC of India 1973 AIR 157.</footnote>
who created them, for instance a panchayat member. Consequently, one out of two individuals
were declared foreigners because the authority who issued the document was absent.<fnref n="759" />

The Tribunal’s opinion must be given within a sixty-day period after the defendant’s
appearance. The decision can be challenged before the High Court due to the Tribunal’s errors
such as: absence of jurisdiction, illegal actions in the exercise of its competence or violations
of the party’s rights. However, the Court cannot review the conclusions reached by the Tribunal.
No provision for an appeal exists for FT rulings. The order of the Tribunal is final. This raises
concern that the Tribunal may not respect the appropriate procedural guarantees in Article 21
of the Constitution but also Article 8 of the UDHR.<fnref n="760" /> At the international human rights level,
it raises another question. In principle, the State must suspend the effects of the decisions until
the appeal has been settled. In this way, the individual can continue to enjoy his or her
nationality.<fnref n="761" /> However, this is not so in Assam.

Furthermore, an allegation of a “money-making industry” was made against judges,
police and lawyers in the Morigaon FT.<fnref n="762" /> Amir Hussain’s incapacity in No.3 Morigaon FT to
pay Rs. 2 lakhs in cash led to him being declared a foreigner.<fnref n="763" />

<footnote n="759">⁷⁵⁹ ‘The Search for Foreigners in Assam – An Analysis of Cases Before a Foreigners’ Tribunal and the High Court’ (n 680).</footnote>

<footnote n="760">⁷⁶⁰ ‘Designed to Exclude: How India’s Court Are Allowing Foreigners Tribunals to Render People Stateless in Assam’ (n 655).</footnote>

<footnote n="761">⁷⁶¹ ‘Human Rights and Arbitrary Deprivation of Nationality: Report of the Secretary General’ (n 103) para 33.</footnote>

<footnote n="762">⁷⁶² Interview with Choudhury (n 416).</footnote>

<footnote n="763">⁷⁶³ ‘Declared “Foreigner”, a Money Mongering Option Now’ (*Pratidin Time*).</footnote>
### 3.3.3. Denying the right to access to justice because of sustained and chronic deprivation of resources

Disregard of local contexts by judges, is a problem for due process. Yet, poverty in the region, is another concern. It is quite rare to find “well-off” individuals appearing before the FT, the majority are poor and vulnerable individuals.<fnref n="764" />

For Arjun Sepgupta, former UN Independent Expert on Extreme Poverty, poverty results from a combination of three factors: income poverty, human development poverty, and social exclusion.<fnref n="765" /> Additionally, for the CESCR, poverty culminates in the deprivation of civil, cultural, economic, political and social rights.<fnref n="766" /> Consequently, poverty not only leads to deprivation of economic and material resources, or to the violation of human dignity,<fnref n="767" /> but the right to access justice. Despite being a yardstick of a society, access to justice, and therefore access to jurisdiction must not only be presumed, but well beyond that, it must be effective.

While difficult to define, access to justice was elaborated through the interpretation of the HRC,<fnref n="768" /> the IACtHR<fnref n="769" /> and the ECtHR.<fnref n="770" /> The HRC prompted other UN treaty bodies to consider and interpret this concept. Access to justice is not only an established international standard considered as a basic human right, but is clearly a tool designed to protect other universal human rights. It is the right of individuals to use the legal machinery and judicial mechanisms as tools to protect their other rights. Not respecting positive and negative obligations, resulting from this right, can be due to practice or legal obstacles.<fnref n="771" /> Lack of access to justice, particularly for vulnerable individuals signifies the violation of an effective judicial

<footnote n="764">⁷⁶⁴ Interview with Anonymous (n 728).</footnote>

<footnote n="765">⁷⁶⁵ Arjun Sengupta, ‘Human Rights and Extreme Poverty: Report of the Independent Expert on the Question of Human Rights and Extreme Poverty’ (Commission on Human Rights 2005) E/CN.4/2005/49 2.</footnote>

<footnote n="766">⁷⁶⁶ ‘Substantive Issues Arising in the Implementation of the ICESCR: Poverty and the ICESCR’ (CESCR 2001) E/C.12/2001/10 para 8.</footnote>

<footnote n="767">⁷⁶⁷ Irene Hadiprayitno, ‘Poverty and International Human Rights Law’ [2004] SSRN Electronic Journal.</footnote>

<footnote n="768">⁷⁶⁸ ‘General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial’ (n 738).</footnote>

<footnote n="769">⁷⁶⁹ *Cantos v Argentina* [2002] IACtHR Merits, Reparations and Costs, Series C, No. 97 [54].</footnote>

<footnote n="770">⁷⁷⁰ *Golder v United Kingdom* [1975] ECtHR 4451/70 [36].</footnote>

<footnote n="771">⁷⁷¹ Ricardo Lillo Lobos, *Understanding Due Process in Non-Criminal Matters: How to Harmonize Procedural Guarantees with the Right to Access to Justice*, vol 97 (Springer) 28; *Golder v United Kingdom* (n 780) para 26; *Fernández Ortega* (2010) (n 193) para 201.</footnote>
protection. It questions whether individuals are considered in their own right or through the
prism of social values and place in society.

Justice stands as a safeguard to dissent or social movements, and mirrors society's advance
towards a more egalitarian structure, or on the contrary its slide towards a regressive model. It
is the symbol of effective democracy and the rule of law. Paragraphs 12 and 13 of the
Declaration of the High-Level Meeting on the Rule of Law (November 2012), holds that access
to justice is a basic principle of the rule of law. The UN General Assembly's resolution 67/1 on
the rule of law at the national and international level, affirms the importance of guaranteeing
the right of equal access to justice, especially to individuals considered vulnerable.<fnref n="772" />

From a legal perspective, access to justice relies on judges and lawyers. Whilst often put
aside, lawyers must be accountable regarding their professional functions, and follow ethical
standards and established norms of behaviour.<fnref n="773" /> Lawyers are core actors in the protection and
promotion of human rights.<fnref n="774" /> For the Indian lawyer and former UN Special Rapporteur on the
Right to Health (2008-2014), Anand Grover, lawyers play a key role in the judiciary's
independence, and individual access to justice.<fnref n="775" /> They may face pressure and interference to
influence or control judicial proceedings.<fnref n="776" /> Assamese lawyers working on these cases are

<footnote n="772">⁷⁷² The right to equality before the law is protected by the following conventions: Article 7 UDHR; Articles 14§1 and 26 ICCPR; Articles 8§2 and 24 American Convention on Human Rights 1969; Article 3 African Charter on Human and Peoples' Rights 1986; Article 20 European Union Charter of Fundamental Rights 1998; Article 3 Association of Southeast Asian Nations Human Rights Declaration 2012; Article 4§1 Framework Convention for the Protection of National Minorities 1994; Article 18 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; Article 15 CERDW. Jorge A Marabotto Lugaro, 'Un derecho humano esencial: el acceso a la justicia' (2003) 1 Anuario de Derecho Constitucional Latinoamericano 291; Valesca Lima and Miriam Gomez, 'Access to Justice: Promoting the Legal System as a Human Right', *Peace, Justice and Strong Institutions* (Springer International Publishing 2020); Declaration of the high-level meeting of the General Assembly on the rule of law at national and international levels 2012 (A/67/L1) paras 14–15.</footnote>

<footnote n="773">⁷⁷³ International Commission of Jurists, 'International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors: Practitioners Guide No.1' (2007) 68.</footnote>

<footnote n="774">⁷⁷⁴ 'Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul' (Human Rights Council 2014) A/HRC/26/32 para 63.</footnote>

<footnote n="775">⁷⁷⁵ Interview with Advocate Anand Grover (18 October 2022), former UN Special Rapporteur on the right to health and Advocate in India.</footnote>

<footnote n="776">⁷⁷⁶ 'Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, Mission to Maldives' (Human Rights Council 2013) A/HRC/23/43/Add.3 para 86; Interview with Advocate Grover (n 785); Interview with Advocate Hedge (n 433). In the Indian context, see the case against the human rights lawyers Surendra Gadling – arrested under the Unlawful Activities (Prevention) Act for delivering hate speeches in connection with the Bhima Koregaon violence –, and Anand Grover, vocal on criticism of executive excess, and of the Indian government.</footnote>
stigmatised and often call “Bangladeshi lawyers”.<fnref n="777" /> Yet some of them, are complicit in rendering access justice impossible. Whilst some lawyers provide free service (*pro bono* cases), others may charge four or five hundred thousand rupees.<fnref n="778" /> Difficulty in obtaining bank loans because of the absence of documents drive individuals to sell their residential plots or other possessions.<fnref n="779" />

Since most of the cases are defended by lawyers, when they do not follow ethical standards and behaviours, they become part of the problem to access justice. Money issues, absence of fair trial, fair investigation, and prejudice raises the question whether access to justice a protected right in these cases.<fnref n="780" />

In Assam, geographical factors aggravated by poverty render access to justice difficult. Sixth from the top in the headcount ratio, 32.67% of the Assamese population is multidimensionally poor, and with Covid-19, the poverty ratio has increased.<fnref n="781" /> This measure provides an overall picture of the multiple disadvantages faced by individuals, alongside inadequate nutrition, health, education and standard of living.

In 2019, the Gauhati High Court ruled that FT cases cannot be transferred to another FT even when individuals are closer to that tribunal.<fnref n="782" /> Individuals may be forced to sell their animals and cattle, or even jewellers to reach the FT.<fnref n="783" /> Despite their differences, these individuals recall the post-Partition period, during which women often had to sell their jewellery to survive.

The Court refers to access to justice throughout its judgment, leaving FT a MOA to consider individual situations case by case.<fnref n="784" /> The awareness of FT approach to cases, the high number

<footnote n="777">⁷⁷⁷ Interview with Anonymous (n 728).</footnote>

<footnote n="778">⁷⁷⁸ Interview with Advocate Wadud (n 679).</footnote>

<footnote n="779">⁷⁷⁹ ibid.</footnote>

<footnote n="780">⁷⁸⁰ ibid.</footnote>

<footnote n="781">⁷⁸¹ ‘India - National Multidimensional Poverty Index, Baseline Report’ (NITI Aayog 2021) 34.</footnote>

<footnote n="782">⁷⁸² *Shariful Islam v Union of India & Ors* [2019] Gauhati High Court WP (C) 2780/2019.</footnote>

<footnote n="783">⁷⁸³ Saha, *No Land's People* (n 16).</footnote>

<footnote n="784">⁷⁸⁴ *Shariful Islam v Union of India & Ors* (n 792) para 19.</footnote>
of *ex-parte* rulings, the short notices (24 to 48 hours<sup>785</sup>), FT distance from their home, even
causing death at times,<sup>786</sup> beg the question of High Courts ignoring the SC judgment
recommending physical accessibility to Courts.<sup>787</sup>

Deaths frequently due to roads accident, described in the book “No Land’s People”<sup>788</sup> highlight
the consequences of violation of access to justice, and shed to light on another type of violence:
structural and normative. Though little data is available on the precise number of deaths, oral
evidence is abundant.<sup>789</sup>

Disregard of SC rulings allows the High Court to consider FT as fair tribunals, and ignore their politicisation. Accessing justice implies in concrete access to the judiciary by individuals. In *Das v. Union of India* (2021), petitioner No.1 could not appear before the FT due to ill health, and consequently petitioner Nos. 3 to 5 as minors could also not appear. The Tribunal declared them all foreigners in an *ex-parte* ruling.<sup>790</sup> While the Gauhati High Court indicated that *ex-parte* orders “cannot be interfered in a routine manner” it is important to consider the implications for citizenship.<sup>791</sup> Besides noting the health issue, FT judges should have considered its cascading effect on other family members.

This cascading effect reinforced the Gauhati High Court's 2017 ruling on the extension of the illegal migrant status from an individual to another family member. In *Aktara Khatun* (2017), the Court gave the FT room to direct the Border Police's investigation into family members' citizenship status, when one individual was declared a foreigner by the FT.<sup>792</sup> However, this practice does not work in reverse: if one individual is declared an Indian citizen, other family members will not be given citizenship by extension.

<footnote n="785">785 Faizan Mustafa, ‘Kangaroo Tribunals: Foreigners’ Tribunals Almost Another Arm of BJP Government in Assam’ *The Indian Express* (8 October 2019).</footnote>

<footnote n="786">⁷⁸⁶ Abhishek Saha, ‘Four Dead as Thousands Rush across Assam for Fresh NRC Hearings’ *The Indian Express* (8 August 2019).</footnote>

<footnote n="787">⁷⁸⁷ *Anita Kushwaha v Pushap Sudan* [2016] SC of India AIR 2016 SC 3506.</footnote>

<footnote n="788">⁷⁸⁸ Saha, *No Land's People* (n 16).</footnote>

<footnote n="789">⁷⁸⁹ Interview with Choudhury (n 416); Interview with Azad (n 427).</footnote>

<footnote n="790">⁷⁹⁰ [2018] Cachar Foreigners Tribunal Case No. 327.2017; [2018] Cachar Foreigners Tribunal Misc Case No. 07/2018.</footnote>

<footnote n="791">⁷⁹¹ *Shri Rajendra Das v The Union of India* [2021] Gauhati High Court WP (C) No. 8295/2019 [9].</footnote>

<footnote n="792">⁷⁹² *Aktara Khatun @Aktara Begum v Union of India* [2017] Gauhati High Court WP (C) 260 of 2017.</footnote>
The risk of mass statelessness becomes a stark reality in this precise case as it extends the danger of deprivation of nationality to the rest of the family. Moreover, this practice is a violation of State Parties membership of the CRC and ICCPR.<fnref n="793" /> The historian Mira Siegelberg argues that mass statelessness calls for the territorial state to become the core source of protection of individual rights.<fnref n="794" />

### 3.4. Dependence and partiality of judges

Just as FT functioning raises concerns about tribunals independence and impartiality, their composition is also problematic. Both undermine the working of a competent, independent and impartial tribunal, considered a core element of the rule of law and fair trials. This right is absolute and non-derogable.<fnref n="795" />

**Selection process** – Judges are selected through an evaluation of their performance based on the number of foreigners they have declared.<fnref n="796" /> The higher the declaration of foreigners, the more the chances for the “judge” to have a seat in the Tribunal. This selection process may explain the following data gathered in four FT in the Kamrup Rural district. Here, nine cases out of ten were against Muslims, and 90% of these Muslims were declared illegal immigrants, compared to 40% Hindus.<fnref n="797" /> While FT practices differ in each court, a generally unfavourable approach towards the Muslim minority can be detected, particularly when these are marginalised (poor, women, illiterate).

Politicisation of these tribunals through a selection of judges seems to be taking place. In 2019, Gauhati High Court advertised for a FT judge asking for a “fair knowledge of official language of Assam and its (Assam) historical background giving rise to foreigner issues”.<fnref n="798" /> This was

<footnote n="793">⁷⁹³ Article 7 CRC; Article 24 ICCPR.</footnote>

<footnote n="794">⁷⁹⁴ Mira L Siegelberg, *Statelessness: A Modern History* (Harvard University Press 2020).</footnote>

<footnote n="795">⁷⁹⁵ The HRC argued that this right is firstly an element of the right to a fair trial, and secondly is an absolute right that cannot be subject to any exception. ‘General Comment No. 32: Article 14 (Right to Equality before Courts and Tribunals and to a Fair Trial)’ (n 738) para 18.</footnote>

<footnote n="796">⁷⁹⁶ ‘Assam Decides Tribunal Member’s Term on Rate of Declaring Foreigners: Amnesty’ *The Hindu* (12 March 2020).</footnote>

<footnote n="797">⁷⁹⁷ Rohini Mohan, “‘Worse than a Death Sentence’: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship” (n 414).</footnote>

<footnote n="798">⁷⁹⁸ ‘The Gauhati High Court at Guwahati - Advertisement - No. HC.XXXVII-22/2019/442/R.Cell’.</footnote>
interpreted in three ways: first, the degradation of eligibility criteria due to an absence of knowledge of citizenship or immigration laws; second, as grounds favourable for future discrimination against Bengali speaking Muslims in the state;<fnref n="799" /> and finally, as ensuring conformity with political agendas.<fnref n="800" />

Prior to 2015, FT members were retired district court judges,<fnref n="801" /> or additional district judges in the 36 Tribunals. With the increase of FT, the lack of judiciary officers led to a change of criteria, and the position was opened to advocates with more than ten years' experience.<fnref n="802" /> The NRC publication in 2019 brought about further changes. Retired civil servants and advocates with seven years practice can now be appointed judges.<fnref n="803" /> Next, the age limit was reduced from 45 to 35 years.<fnref n="804" /> In practice, mostly individuals with no judicial background are selected. In 2015, out of 63 selected members, two were judicial officers.<fnref n="805" /> This practice goes against SC rulings, notably *R K Jain v. Union of India* (1993). This upheld that a person appointed must have legal expertise, training, and judicial experience.<fnref n="806" /> The term 'judicial experience' used in Section 2§2 of the FTO, is open to interpretation, but it also led the Central Government and the Gauhati High Court to distinguish between 'judicial experience' and 'having held judicial office'.<fnref n="807" /> The SC in *Assam Sanmilita Mahasangha v. Union of India* (2014) agreed that judicial experience is equal to holding a judicial office, irrespective of the position occupied.<fnref n="808" /> This, despite a 1959 Rajasthan High Court ruling, referring to judicial experience: "*a person must possess judicial experience in a substantial measure. Nominal judicial experience for a short

<footnote n="799">⁷⁹⁹ Talha Abdul Rahman, 'Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam' (2020) 2 Statelessness and citizenship review 112, 128.</footnote>

<footnote n="800">⁸⁰⁰ 'Designed to Exclude: How India's Court Are Allowing Foreigners Tribunals to Render People Stateless in Assam' (n 655) 5.</footnote>

<footnote n="801">⁸⁰¹ Interview with Advocate Wadud (n 679).</footnote>

<footnote n="802">⁸⁰² Chakravarty, 'Declaring Foreigners: How Assam's Border Police and Tribunals Form a Secretive System of Justice' (n 686).</footnote>

<footnote n="803">⁸⁰³ 'The Gauhati High Court at Guwahati - Advertisement - No. HC.XXXVII-22/2019/442/R.Cell' (n 801).</footnote>

<footnote n="804">⁸⁰⁴ Purohit, 'Foreigners' Tribunals' (n 671); 'The Gauhati High Court at Guwahati - Advertisement - No. HC.XXXVII-13/2017/2687/R.Cell'; 'The Gauhati High Court at Guwahati - Advertisement - No. HC.XXXVII-22/2019/442/R.Cell' (n 801).</footnote>

<footnote n="805">⁸⁰⁵ Purohit, 'Foreigners' Tribunals' (n 671).</footnote>

<footnote n="806">⁸⁰⁶ *R K Jain v Union of India* [1993] SC of India 1993 AIR 1769.</footnote>

<footnote n="807">⁸⁰⁷ Rahman, 'Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam' (n 809) 126.</footnote>

<footnote n="808">⁸⁰⁸ *Assam Sanmilita Mahasangha v Union of India* (n 410) para 46.II.</footnote>
period would not qualify a person to be appointed as Chairman”.<fnref n="809" /> Furthermore, according to the Basic Principles of the Independence of the Judiciary (Principle 10) judges must be qualified in law or trained. Under IHLR, no minimal educational or training requirement for judges is required. States practices and legislation thus vary.<fnref n="810" />

Future judges receive only one or two days orientation before heading the FT, leading to mistakes in the verification of evidence.<fnref n="811" /> This process is not only inconsistent with national rulings, but constitutes a violation of the right to a fair trial. Based on Article 14 of the ICCPR, the right to a fair trial includes the right to a competent tribunal.<fnref n="812" /> However, FT situation seems to deviate from core principles and produces surprising practices, including unfair termination of employment.<fnref n="813" />

In September 2019, 221 judges were appointed without any written test or a transparent selection procedure.<fnref n="814" /> Judges are selected by the Gauhati High Court and appointed through the Home and Political Department of the Assam government.<fnref n="815" /> Significantly, under the FTO, the power to appoint judges lies with the Central Government, which has delegated this power to state governments. Consequently, it is the Gauhati High Court and the Assam government which finalise judges selection.

**End of contract** – In 2017, 19 FT members sued the Assamese government in the Gauhati High Court<fnref n="816" /> for terminating their contracts on grounds of unsatisfactory performance.<fnref n="817" /> In

<footnote n="809">⁸⁰⁹ Badridass Kanhaiyalal v Appellate Tribunal of State Transport Authority Rajasthan [1959] Rajasthan High Court [1959] AIR 1960 Raj 105 [58].</footnote>

<footnote n="810">⁸¹⁰ Clooney and Webb (n 758) 75; Gallo v Argentina [2015] IACtHR Case 12.632 [122]; Reveron Trujillo v Venezuela [2009] IACtHR Series C, No. 197 [72]; ‘Concluding Observations of the HRC: Bolivia’ (HRC 1997) CCPR/C/79/Add.73 para 34.</footnote>

<footnote n="811">⁸¹¹ Rohini Mohan, “‘Worse than a Death Sentence’: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship’ (n 414).</footnote>

<footnote n="812">⁸¹² See: Clooney and Webb (n 758).</footnote>

<footnote n="813">⁸¹³ Fatima Khan, ‘Job in Assam Foreigners Tribunal Depends on Conviction Rate, Says Civil Rights Group Report’ *ThePrint* (19 September 2020).</footnote>

<footnote n="814">⁸¹⁴ Bhushan and D’souza (n 703).</footnote>

<footnote n="815">⁸¹⁵ ibid.</footnote>

<footnote n="816">⁸¹⁶ Mrs Mamoni Rajkumari v The State of Assam (n 7§&).</footnote>

<footnote n="817">⁸¹⁷ Arunabh Saikia, ‘Assam’s Foreigners Tribunals Are Competing to Declare People Foreigners’ *Bar and Bench* (23 June 2019).</footnote>
fact, the Monitoring Committee and the Gauhati High Court required the Government of Assam to “monitor and assess the performance” of judges.<fnref n="818" /> This explained the intervention of the Government of Assam, Home and Political Department, in the extension of contracts. Indeed, the Assam government’s creation of a Monitoring Committee to oversee the performances of the FT violates the 2014 SC judgement.<fnref n="819" />

An annex list in the petition showed that judges declaring 10% of their cases as foreigners were marked “not satisfactory. May be terminated”.<fnref n="820" /> In contrast, judges who ruled 59% of the defendants to be foreigners were offered an extension of their contract (Table 5). <fnref n="821" /> However, these complaints were dismissed by the Assam Home Ministry.<fnref n="822" />

<caption>Table 5: Judges selection at the end of two years in 2017</caption>

<footnote n="818">⁸¹⁸ *Mrs Mamoni Rajkumari v The State of Assam* (n 761) paras 8–9.</footnote>

<footnote n="819">⁸¹⁹ *Assam Sanmilita Mahasangha v Union of India* (n 410).</footnote>

<footnote n="820">⁸²⁰ ‘Designed to Exclude: How India’s Court Are Allowing Foreigners Tribunals to Render People Stateless in Assam’ (n 655) 29; ‘Fact Finding Report: Doubtful Citizenship, Distorted Rights in Assam’ (United Against Hate 2017); Rohini Mohan, ‘“Worse than a Death Sentence”: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship’ (n 414). See Annex – 3.</footnote>

<footnote n="821">⁸²¹ ‘Designed to Exclude: How India’s Court Are Allowing Foreigners Tribunals to Render People Stateless in Assam’ (n 655) 29; ‘Fact Finding Report: Doubtful Citizenship, Distorted Rights in Assam’ (n 830); Rohini Mohan, ‘“Worse than a Death Sentence”: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship’ (n 414).</footnote>

<footnote n="822">⁸²² Rohini Mohan, ‘“Worse than a Death Sentence”: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship’ (n 414).</footnote>
<table><thead><tr><td>Total of cases disposed since the beginning</td><td>Total numbers of foreigners declared</td><td>Percentage of foreigners declared</td><td>General views of the Government upon the Members</td><td>Whether may be considered for further retention or may be terminated</td></tr></thead><tbody><tr><td>380</td><td>5</td><td>1,32</td><td>Not satisfactory</td><td>May be terminated</td></tr><tr><td>460</td><td>159</td><td>34,57</td><td>Good</td><td>May be retained</td></tr><tr><td>443</td><td>173</td><td>39,05</td><td>Good</td><td>May be retained</td></tr><tr><td>574</td><td>88</td><td>41,67</td><td>Need to improve</td><td>May be retained with warning</td></tr><tr><td>321</td><td>240</td><td>74,77</td><td>Good</td><td>May be retained</td></tr><tr><td>345</td><td>142</td><td>41,16</td><td>Good</td><td>May be retained</td></tr><tr><td>300</td><td>76</td><td>25,33</td><td>Good</td><td>May be retained</td></tr><tr><td>249</td><td>67</td><td>26,91</td><td>Need to improve</td><td>May be retained with warning</td></tr><tr><td>626</td><td>98</td><td>15,65</td><td>Good</td><td>May be retained</td></tr><tr><td>239</td><td>150</td><td>49,38</td><td>Good</td><td>May be retained</td></tr><tr><td>468</td><td>48</td><td>10,26</td><td>Need to improve</td><td>May be retained with warming</td></tr><tr><td>485</td><td>21</td><td>4,33</td><td>Not satisfactory</td><td>May be terminated</td></tr><tr><td>494</td><td>12</td><td>2,43</td><td>Not satisfactory</td><td>May be terminated</td></tr><tr><td>326</td><td>25</td><td>7,67</td><td>Not satisfactory</td><td>May be terminated</td></tr><tr><td>691</td><td>404</td><td>58,47</td><td>Good</td><td>May be retained</td></tr><tr><td>548</td><td>8</td><td>1,46</td><td>Not satisfactory</td><td>May be terminated</td></tr><tr><td>472</td><td>5</td><td>1,06</td><td>Not satisfactory</td><td>May be terminated</td></tr><tr><td>485</td><td>4</td><td>0,82</td><td>Not satisfactory</td><td>May be terminated</td></tr><tr><td>528</td><td>61</td><td>11,55</td><td>Need to improve</td><td>May be retained with warning</td></tr><tr><td>263</td><td>6</td><td>2,28</td><td>Not satisfactory</td><td>May be terminated</td></tr><tr><td>238</td><td>78</td><td>32,77</td><td>Need to improve</td><td>May be retained with warning</td></tr></tbody></table>

Source: Designed to Exclude: How India's Court are allowing foreigners tribunals to render people stateless in Assam (Amnesty International India 2019) 29.

The BJP government's response to the allegations of lawyers working in the FT maintained:
all foreigners tribunals enjoy complete independence from the government and the
appointments are supervised by the High Court<sup>823</sup>

While the BJP argues that the executive is not interfering with the judiciary in this precise case, pressure faced by FT judges is an open secret in Assam’s judicial landscape. Pressure comes from the state government and High Court judges.<fnref n="824" /> An evolution is apparent according to the Assamese advocate Wadud. Under the Congress, judges did not face pressure, but with the BJP in power, pressure has increased and prejudice against individuals is more flagrant (Table 6).<fnref n="825" />

<caption>Table 6: State governments of Assam</caption>

<footnote n="823">823 Kumar Sanjay Krishna, Additional Chief Secretary, Home and Political Department of Assam, in Khan (n 816).</footnote>

<footnote n="824">⁸²⁴ ibid.</footnote>

<footnote n="825">⁸²⁵ Interview with Advocate Wadud (n 679).</footnote>
<table><thead><tr><td>Period of office</td><td>State's government of Assam</td><td>Chief Minister</td></tr></thead><tbody><tr><td>1946-1952</td><td>Indian National Congress</td><td>Gopinath Bordoloi / Bishnu Ram Medhi</td></tr><tr><td>1952-1957</td><td>Indian National Congress</td><td>Bishnu Ram Medhi</td></tr><tr><td>1957-1962</td><td>Indian National Congress</td><td>Bishnu Ram Medhi / Bimala Prasad Chaliha</td></tr><tr><td>1962-1967</td><td>Indian National Congress</td><td>Brimala Prasad Chaliha</td></tr><tr><td>1967-1972</td><td>Indian National Congress</td><td>Brimala Prasad Chaliha / Mohendra Mohan Choudhury</td></tr><tr><td>1972-1978</td><td>Indian National Congress</td><td>Sarat Chandra Sinha</td></tr><tr><td>1978-1979</td><td>Janata Party / Communist Party of India / Plains Tribals Council of Assam</td><td>Golap Borbora / Jogendra Nath Hazarika</td></tr><tr><td>1979-1980</td><td>Government of India</td><td>President Rule</td></tr><tr><td>1980-1981</td><td>Indian National Congress / Communist Party of India / Independents</td><td>Anowara Taimur</td></tr><tr><td>1981-1982</td><td>Government of India</td><td>President Rule</td></tr><tr><td>1982</td><td>Indian National Congress / Communist Party of India / Independents</td><td>Kesab Chandra Gogoi</td></tr><tr><td>1982-1983</td><td>Government of India</td><td>President Rule</td></tr><tr><td>1983-1985</td><td>Indian National Congress</td><td>Hiteswar Saikia</td></tr><tr><td>1985-1990</td><td>Asom Gana Parishad</td><td>Prafulla Kumar Mahanta</td></tr><tr><td>1990-1991</td><td>Government of India</td><td>President Rule</td></tr><tr><td>1991-1996</td><td>Indian National Congress</td><td>Hiteswar Saikia / Bhumidhar Barman</td></tr><tr><td>1996-2001</td><td>Asom Gana Parishad / Communist Party of India / United Minorities Front</td><td>Prafulla Kumar Mahanta</td></tr><tr><td>2001-2006</td><td>Indian National Congress</td><td>Tarun Gogoi</td></tr><tr><td>2006-2011</td><td>Indian National Congress / Bodoland People's Front</td><td>Tarun Gogoi</td></tr><tr><td>2011-2016</td><td>Indian National Congress / Bodoland People's Front</td><td>Tarun Gogoi</td></tr><tr><td>2016-2021</td><td>Bharatiya Janata Party / Asom Gana Parishad / Bodoland People's Front</td><td>Sarbananda Sonowal</td></tr><tr><td>2022-</td><td>Bharatiya Janata Party / National Democratic Alliance</td><td>Himanta Biswa Sarma</td></tr></tbody></table>

Assam's FT do not exhibit independence. Over the years they have voiced executive policies and its ideologies.<fnref n="826" /> For instance, during Covid-19, FT members letter to the State Health and Finance Minister declared that their contribution to Assam Arogya Nidhi, a fund created to help families in need of access to healthcare, could not be given to the Tablighi Jamaat (an

<footnote n="826">⁸²⁶ Saikia, ‘Assam’s Foreigners Tribunals Are Competing to Declare People Foreigners’ (n 827).</footnote>
organisation of Islamic missionaries) whose members had been labelled as ‘Jihadi’.<fnref n="827" /> One of the signatories was the same judge who had declared Mohammad Sanaulla (retired army serviceman) an illegal immigrant. The incident revealed a clear pattern of discrimination on the part of this particular judge towards Muslims. The letter was reportedly not sent. Nevertheless, the fact that it had been signed by FT judges in their official capacity is significant. Judges have an obligation to apply the law without discrimination. This letter brings an additional element to the ties between the judiciary and government ideology. Consequently, while indicating the existence of shared prejudices concerning Muslims, it once again questions the neutrality of FT judges. Furthermore, in terms of neutrality, judges not only administer “the law” but are also prosecutors and public advocates rapidly becoming State representatives.<fnref n="828" />

Likewise, it is interesting to note the high number of FT judges who had been members of the AASU.<fnref n="829" /> Between 1979 and 1983 the party strongly opposed foreigners and favoured the NRC. While it is difficult to prove a direct link between a political opinion and judges' rulings in the FT due to the pressure of the Assamese government, it cannot be denied that membership of the AASU movement can impact the decision. The association with this political movement imperils the right to an impartial tribunal,<fnref n="830" /> which is an absolute right that cannot be subject to any exception.<fnref n="831" /> This signifies that judges should not be influenced by personal bias or prejudice,<fnref n="832" /> nor promote the interest of one party. In the current context of the FT, this subjective aspect<fnref n="833" /> is questioned. AASU, the state and the Centre government are all promoting “us vs them” programs, which concretely result in FTs increasingly declaring ‘illegal

<footnote n="827">⁸²⁷ Abhishek Saha, 'Our COVID Aid Not for Tablighis, Jihadis, Write Assam Foreigners' Tribunals' Members' (The Indian Express, 12 April 2020).</footnote>

<footnote n="828">⁸²⁸ Interview with Anonymous (n 728).</footnote>

<footnote n="829">⁸²⁹ For the AASU members, a need to strengthen the mechanism for detection and deportation of foreigners is needed, in addition to strengthening the border police force. 'Assam Govt, AASU Voice for Re-Verification of NRC' *The Northeast Today* (18 November 2021).</footnote>

<footnote n="830">⁸³⁰ This right is guaranteed in the following international human rights treaties signed by India: Article 14§1 ICCPR; Article 10 UDHR.</footnote>

<footnote n="831">⁸³¹ 'General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial' (n 738) para 19.</footnote>

<footnote n="832">⁸³² *Shyam Singh v State of Rajasthan* [1972] Rajasthan High Court 1973 CriLJ 441; *Zahira Habibullah Sheikh v State of Gujarat* [2006] SC of India Appeal (Crl.) 446-449 of 2004.</footnote>

<footnote n="833">⁸³³ For the HRC, impartiality resides in two requirements, a subjective and an objective element. 'General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial' (n 738) para 21.</footnote>
migrants'. Furthermore, the letter cited above by FT judges to the State Health and Finance
Minister reveals the lack of subjective impartiality of these judges.

It is important to recall that impartiality is closely tied to the independence of tribunals.
International bodies often consider them twin elements<sup>834</sup> though these two concepts have
different legal meanings.<sup>835</sup>

The relationship, either personal, or due to pressure from the Assam Government
resulting from political affiliations reflects on the independence tribunals. Despite the SC
pronouncements<sup>836</sup> and Constitutional principles,<sup>837</sup> judicial independence and the rule of law
are core elements even if they are not stated as provisions. This principle is put aside in the case
of the FTs. Judges must be independent,<sup>838</sup> and more importantly, their independence from the
branches of the government must be guaranteed<sup>839</sup> to enforce individuals core right's.<sup>840</sup>

By accepting interference from the Government of Assam in the selection and termination of
judges' contracts, the State endangers the judges independence by exposing them to political
pressure, whether direct or indirect. It was precisely to prevent this that the HRC affirmed the
need for States to protect "judges from any form of political influence in their decision-
making".<sup>841</sup>

<footnote n="834"><sup>834</sup> *Incal v Turkey* [1988] ECtHR 22678/93 [65].</footnote>

<footnote n="835"><sup>835</sup> *Apitz Barbera (First Court of Administrative Disputes) v Venezuela* [2008] IACtHR Series C, No. 182 [55–56].</footnote>

<footnote n="836"><sup>836</sup> "‘Impartiality’ is the soul of Judiciary, ‘Independence’ is the life blood of Judiciary. Without independence, impartiality cannot thrive. Independence is not the freedom for Judges to do what they like. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values.’, *Union of India v R Gandhi* [2010] Preliminary Objections, Merits, Reparations and Costs Civil Appeal No. 3067 of 2004 [15].</footnote>

<footnote n="837"><sup>837</sup> The right to an independent tribunal has to be established in the Constitution or national legislation. Principle 1 Basic principles on the Independence of the Judiciary 1985.</footnote>

<footnote n="838"><sup>838</sup> *SP Gupta v Union of India* [1981] Preliminary Objections, Merits, Reparations and Costs 1982 (2) SCC 831; *Lopez Lone v Honduras* [2015] IACtHR Series C, No. 302 [194]; *McKay v United Kingdom* [2006] ECtHR 543/03.</footnote>

<footnote n="839"><sup>839</sup> *Crociani v Italy* [1980] ECtHR 8603/79 & Others [212].</footnote>

<footnote n="840"><sup>840</sup> *The Honourable Chief Justice of Trinidad and Tobago Mr Justice Ivor Archie ORTT v The Law Association of Trinidad and Tobago* [2018] Judicial Committee of the Privy Council [2018] UKPC 23.</footnote>

<footnote n="841"><sup>841</sup> ‘General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial’ (n 738) para 19.</footnote>
**Fair investigations** – Article 21 of the Constitution declares that fair investigation is a core right of aliens or Indians, and consequently, the individual must have an equal opportunity to demonstrate that he is not a foreigner during the investigation. Fair investigations remain one of the main checks to the deprivation of nationality. On the ground, however, they are difficult to implement, despite guidelines laid down in the *Moslem* case<fnref n="842" /> by the High Court for Border Police investigation on individuals’ citizenship.

**4. Phase two: detention camps as a new legal norm**

The case of Assam is once again quite specific compared to countries like as Italy, Spain or Greece.<fnref n="843" /> In Europe for instance, illegal migrants are often detained upon arrival. However, in Assam, individuals are arrested in their homes or villages.

Notification No. 1/7/61-F.III (1961) gave the state authority to declare individuals
foreigners under the Foreigners Act, 1946. This was later extended to Police and Deputy
Commissioners under the government of Assam.<fnref n="844" /> However, this notification did not include
the power to issue orders for detention. In *Sree Latha v. Public Department* (2007), the Madras
High Court ruled on that. The state government could keep foreigners in detention camps under
section 3(2)(e) of the Foreigners Act, 1946.<fnref n="845" />

In this context, detention becomes a key mechanism to further alienate Muslims and Hindus.
Strategies of building a nation on ethnic foundations have mobilised and legitimised legal
mechanisms and instruments to enforce discriminatory policies in violation of IHRL.

On 17 August 2021, in an official notification, the Home and Political Department of Assam
renamed Detention Centres as Transit camps.<fnref n="846" /> The change seeks to present a more

<footnote n="842">⁸⁴² *State of Assam v Moslem Mondal* (n 690).</footnote>

<footnote n="843">⁸⁴³ For more information on the detention of migrants in these countries see: Céline Cantat, ‘Locked up and Excluded: Informal and Illegal Detention in Spain, Greece, Italy and Germany’ (migreurop 2020) 4.</footnote>

<footnote n="844">⁸⁴⁴ Notification No. 1/7/61-F.III 1961 para 2.</footnote>

<footnote n="845">⁸⁴⁵ *Sree Latha v The Secretary to Government* [2007] Madras High Court No. 1138 of 2006.</footnote>

<footnote n="846">⁸⁴⁶ In this chapter, I will use “transit” and “detention” interchangeably, as there is de facto no difference between the two concepts in Assam. Notification No. PLB.121/2015/Vol-I/509, Government of Assam 2021.</footnote>
"humanised" image of these centres,<fnref n="847" /> in order to make them more acceptable by national and international human rights standards. While ground reality presents another picture, the change signals the government's concern with its international image, and shows the importance of international legal standards and norms. However, scholars and activists, still use the term detention centre. For Angushman Choudhury, "there are no transit camps in Assam today, as deportation does not happen".<fnref n="848" />

## 4.1. Background

Detention centres are a new development in India. They came up in Assam in the early 2000's. In some areas former prisons were converted for detention of anyone identified as an illegal immigrant.<fnref n="849" /> Currently, there are seven detention centres, holding predominantly Bengali-speaking people (map 2).

<figure><img src="image_11.png" /><figcaption>Map 2: Transit camps in Assam in 2020</figcaption></figure>

Source: Naresh Singaravelu, Data | Where are detention centres in India?, The Hindu (1 January 2020)

<footnote n="847">⁸⁴⁷ Tora Argarwala, 'Assam Govt Renames "Foreigner" Detention Centres to "Transit Camps"' *The Indian Express* (19 August 2021).</footnote>

<footnote n="848">⁸⁴⁸ Interview with Choudhury (n 416).</footnote>

<footnote n="849">⁸⁴⁹ Gringlas, 'India Passes Controversial Citizenship Bill That Would Exclude Muslims' (n 476); Uddipana Goswami, 'India's New Citizenship Law Reopens Wounds for Indigenous Populations' (*The Globe Post*, 13 January 2020).</footnote>
The security angle was used to justify these detention centres. It acquired further importance after the sectarian violence against Bengali Muslims viewed as illegal immigrants from Bangladesh, and serial bomb blasts in Gauhati in October 2008, and in January 2009.

In fact, a large number of detainees in Assam are to date considered Bangladeshis or Burmese (table 7). Data published in *The Hindu*, a national daily newspaper, is unreliable, as far as figures for Bangladesh are concerned, especially in view of the earlier demonstration related to discrimination and links between FT judges and government institutions, and political ideology.

<table><caption>Table 7: Nationality in detention in Assam in 2020 - in percentage</caption><thead><tr><td>Transit camp</td><td>Bangladesh</td><td>Myanmar</td></tr></thead><tbody><tr><td>Goalpara</td><td>99,1</td><td>0,9</td></tr><tr><td>Kokrajhar</td><td>100</td><td>0</td></tr><tr><td>Silchar</td><td>91,9</td><td>8,8</td></tr><tr><td>Dibrugarh</td><td>100</td><td>0</td></tr><tr><td>Jorhat</td><td>100</td><td>0</td></tr><tr><td>Tezpur</td><td>97,1</td><td>3</td></tr><tr><td>Total</td><td>98,3</td><td>1,8</td></tr></tbody></table>

Source: Summant Sen and Naresh Singaravelu, Where are the Detention Centres in India?, The Hindu (1 January 2020).

The first of these centres came up in 2008-2009. Following the 2008 Gauhati High Court's judgment on illegal immigrants, Justice B.K. Sarmat ordered the deportation of more than 50 Bangladeshi nationals, registered voters in Assam, found guilty of acquiring Indian citizenship "fraudulently".<fnref n="850" />

In July 2009, Bhumidhar Barman, Assam revenue Minister, informed the state assembly of the creation of two detention camps to hold illegal immigrants in Mancachar and Mahisashan. By mid-2010, three detention centres were active in Goalpara, Silchar and Kokrajhar. Until 2011,

<footnote n="850">⁸⁵⁰ Prabhash K Dutta, 'NRC and Story of How Assam Got Detention Centres for Foreigners' *India Today* (27 December 2019).</footnote>
362 foreigners-illegal migrants were sent to these camps. Later, detention centres were created at Tezpur, Jorhat, and Dibrugarh.

In 2014, the Central government directed all state governments to set up detention centres. In 2018 it approved the building of one in Goalpara district, expected to be completed by December 2019. It started operated in January 2023. In 2021, Gauhati High Court gave 45 days to the Assam Government to finish the construction of the transition centre.<fnref n="851" /> Government pressure after the Covid-19 lockdown to complete this reflects a will to increase the number of arrested “foreigners”. In practice, it would multiply FT discriminatory rulings.

In 2017, the state government sanctioned 20 bighas of land (5 hectares) for the construction of this detention centre.<fnref n="852" /> Located 126 km from the state capital Dispur, the centre is spread over 2.8 hectares and can detain between 2,000 and 3,000 people.<fnref n="853" /> Besides a hospital, it has a dining area, school, recreational centre, and two separate accommodations – 13 blocks for men and 2 blocks for women – divided by a six feet red wall.<fnref n="854" /> As a security measure, it contains six watchtowers for round-the-clock monitoring, aided by a 100-metre high-beam light. It is considered the largest detention centre in India,<fnref n="855" /> and cost approximately $7 million.<fnref n="856" /> On 28 January 2023, 68 people shifted in the camp: 45 men, 21 women and 2 children.<fnref n="857" /> In February 2023, the camp was used to detained man accused of child marriage.<fnref n="858" />

<footnote n="851">⁸⁵¹ Nupur Thapliyal, 'Foreigners' Detention Centre: Gauhati High Court Grants 45 Days To Assam Govt For Completing Construction, Shifting Detenues' *Livelaw.in* (20 August 2021).</footnote>

<footnote n="852">⁸⁵² Dutta, 'NRC and Story of How Assam Got Detention Centres for Foreigners' (n 860).</footnote>

<footnote n="853">⁸⁵³ Tawqeer Hussain, ""How Is It Human?": India's Largest Detention Centre Almost Ready' *AlJazeera* (2 January 2020); Argarwala (n 857).</footnote>

<footnote n="854">⁸⁵⁴ Hussain, ""How Is It Human?"" (n 863).</footnote>

<footnote n="855">⁸⁵⁵ Anjana Dutta and Tripdip K Mandal, 'India Builds Largest Detention Centre For Those Excluded from NRC' *TheQuint* (3 September 2019).</footnote>

<footnote n="856">⁸⁵⁶ Interview with Choudhury (n 416).</footnote>

<footnote n="857">⁸⁵⁷ '68 Illegal Foreigners Shifted to the Newly Constructed Matia Transit Camp in Assam' (*OpIndia*, 28 January 2023).</footnote>

<footnote n="858">⁸⁵⁸ 'Assam Detention Centres for Foreigners Used to Jail Child Marriage Accused' *Hindustan Times* (8 February 2023).</footnote>
The whole subject of detention camps is problematic. While women have more difficulties to obtain documents, interestingly they do not compose most of detainees (table 8).

In March 2020, the numbers had increased significantly: Goalpara has 370 inmates, Kokrajhar, a woman's detention centre, has 140, Silchar 479, Dibrugarh 680, Jorhat 670, and Tezpur 797 inmates, or a total of 3136, showing an increase of 223%. In less than 3 months detention centres in Assam had nearly reached maximum capacity, according to the Union Minister of State for Home Affairs G. Kishan Reddy, who proclaimed that nearly 3,331 people were lodged in Assam's detention centres.<fnref n="859" /> According to Nityanand Rai, minister of State for the Ministry of Home Affairs, around 800 people were being kept in detention centres in Assam on 6 March 2020.<fnref n="860" /> These sets of contradictory data underline the difficulty of establishing reliable statistical evidence.

<table><caption>Table 8: Number of detainees by gender in the Assamese detention centres in January 2020</caption><thead><tr><td>Transit camp</td><td>Male</td><td>Female</td><td>Total</td></tr></thead><tbody><tr><td>Goalpara</td><td>186</td><td>15</td><td>201</td></tr><tr><td>Kokrajhar</td><td>9</td><td>131</td><td>140</td></tr><tr><td>Silchar</td><td>57</td><td>14</td><td>71</td></tr><tr><td>Dibrugarh</td><td>38</td><td>2</td><td>40</td></tr><tr><td>Jorhat</td><td>132</td><td>64</td><td>196</td></tr><tr><td>Tezpur</td><td>224</td><td>98</td><td>322</td></tr><tr><td>Total</td><td>646</td><td>324</td><td>970</td></tr></tbody></table>

Source: Summant Sen and Naresh Singaravelu, Where are the Detention Centres in India?, The Hindu (1 January 2020).

<footnote n="859">⁸⁵⁹ ‘Six Detention Centres in Assam with Capacity of 3,331 Persons: Home Ministry Tells Lok Sabha’ *The New Indian Express* (17 March 2020).</footnote>

<footnote n="860">⁸⁶⁰ ‘Around 800 People Kept In Detention Centres In Assam: Ministry Of Home Affairs’ *Livelaw.in* (11 March 2020).</footnote>
## 4.2. Dehumanising the minority through arbitrary detention

The FT declaration of an illegal immigrant implies their loss of all rights as Indians and immediate arrest by the police under Section 4 of the Foreigners Act, 1946. Consequently, on the day of the FT verdict, some lawyers advise their clients to stay away from the tribunal.<fnref n="861" /> Individuals when arrested are sent to detention centre till their deportation. Interestingly, individuals are mostly sent to detention centres because of the D voter mechanism and reference cases rather than the NRC.<fnref n="862" />

FT discriminatory and arbitrary process invites analysis of detention centres as motors of deprivation of liberty by violation of individual rights particularly the right to a fair trial. In *Liu Xiabo v. China* (2011), the Working Group on Arbitrary Detention held that the lack of time to defend his case was a breach of fairness, and therefore his arrest was an arbitrary deprivation of his liberty because of the violation of the right to a fair trial.<fnref n="863" />

Whilst detention centres have been built across the country and the state, individuals have often been detained with ‘criminals’. In *Santhanu Borthakur* (2020), the Gauhati High Court noted that illegal migrants should be held in detention centres outside prisons.<fnref n="864" /> The Central Government did specify the need to separate jails and detention centres. However, it does not declare detention centres within prisons as illegal. Mixing ‘illegal’ migrants with convicts and undertrials has led overcrowded prisons to discrimination by jail officials, shortage of rations, with impacts on physical and mental health.<fnref n="865" /> The first major problem resides in the non-separation of the detention centres and jails, and of detainees from ordinary inmates. Further, no clear legal regime for the rights and entitlements of detainees has been established. Jail

<footnote n="861">⁸⁶¹ Rohini Mohan, “‘Worse than a Death Sentence’: Inside Assam’s Sham Trials That Could Strip Millions of Citizenship’ (n 414).</footnote>

<footnote n="862">⁸⁶² Siddique, ‘Inside Assam’s Detention Camps: How the Current Citizenship Crisis Disenfranchises Indians’ (n 705) 3.</footnote>

<footnote n="863">⁸⁶³ *Liu Xiaobo v China* [2012] Working Group on Arbitrary Detention A/HRC/WGAD/2011/15 [23].</footnote>

<footnote n="864">⁸⁶⁴ *Santhanu Borthakur v Union of India* [2020] Gauhati High Court WP (Crl) 2/2020.</footnote>

<footnote n="865">⁸⁶⁵ ‘Mapping Developments: A Follow-up to the Detention Chapter from the Securing Citizenship Report’ (*Parichay - The Blog*, 25 January 2021).</footnote>
authorities follow the Assam Jail Manual, but without applying benefits such as salaried work or parole.<fnref n="866" />

These centres are used as a tool of repression,<fnref n="867" /> and conditions are problematic: big halls have 15 to 20 detainees often with a personal space of 4 by 5 feet,<fnref n="868" /> families are separated, and individuals held indefinitely without proper food, medical attention or care, no access to medicines, not privacy, no visitors, and the likelihood of facing collective punishment.<fnref n="869" /> Most detainees are affected by these conditions, and suffer either mentally or physically (e.g. loss of eyesight).<fnref n="870" /> Such treatment is opposed by HRC as outlined in *Mukong v. Cameroon* (1994) and considered as minimum standard.<fnref n="871" /> Furthermore, the ECtHR jurisprudence upheld that the cumulative effect of prisons conditions induced inhuman and degrading treatment, and violated Article 3 of the European Convention of Human Rights (ECHR).<fnref n="872" />

Since 2008, nearly 100 deaths have been registered in detention centres including suicides.<fnref n="873" /> 67-year-old, Ajbahar, was released on bail after three and a half years in the Goalpara detention centre following his arrest at the FT, where he learnt that he had been declared an illegal immigrant by another FT. His arrest was upheld by the Gauhati High Court. Depression provoked by his arrest led to his wife's suicide. Today, Ajbahar is mentally unstable.<fnref n="874" /> While, the impact on individuals' mental health is disregarded as too the impact on family health, some social projects today seek to help former detainees with psychological aid.<fnref n="875" />

<footnote n="866">⁸⁶⁶ ‘Report on NHRC Mission to Assam’s Detention Centres from 22 to 24 January 2018’ (National Human Rights Commission 2018) 2; 4.</footnote>

<footnote n="867">⁸⁶⁷ Interview with Anonymous (n 728).</footnote>

<footnote n="868">⁸⁶⁸ The ECtHR argues that personal space between 3-4 square meters constitutes a core factor in the consideration of detention conditions. Siofra O’Leary, ‘Conditions of Detention in the Case-Law of the Two European Courts: Responses to Prison Overcrowding’ (Council of Europe, Strasbourg, 23 April 2019) 4.</footnote>

<footnote n="869">⁸⁶⁹ Soumya Shankar, ‘How India’s Changing Citizenship Law and a National Registry Could Target Muslims’ (*The Intercept*, 30 January 2020); ‘Statelessness in India in the Global Pandemic’ (29 July 2021); Interview with Begum (n 684); Interview with Choudhury (n 416).</footnote>

<footnote n="870">⁸⁷⁰ Interview with Begum (n 684).</footnote>

<footnote n="871">⁸⁷¹ *Mukong v Cameroon* [1994] HRC CCPR/C/51/D/458/199 [9.3].</footnote>

<footnote n="872">⁸⁷² *Modarca v Moldova* [2007] ECtHR 14437/05; *Vasilescu v Belgium* [2014] ECtHR 64682/12.</footnote>

<footnote n="873">⁸⁷³ Hussain, “‘How Is It Human?’” (n 863).</footnote>

<footnote n="874">⁸⁷⁴ Anjuman Ara Begum, ‘Voices from the Field on Citizenship Rights in Assam’ (Exploring the right to nationality in the context of India, 6 February 2021).</footnote>

<footnote n="875">⁸⁷⁵ Interview with Begum (n 684).</footnote>
As no agreement exists between India and Bangladesh, individuals considered foreigners by the FT are condemned to detention centres for an indefinite time. In fact, detention centres facilitate long-term custody.<fnref n="876" /> While the *Moslem Mandal* case placed a two-month limit for the detention of foreigners, in reality the situation is quite different (table 9).<fnref n="877" /> In *Madani v. Algeria* (2007), the HRC argued that in order to avoid arbitrariness, detention cannot continue “beyond the period for which the State party can provide appropriate justification”.<fnref n="878" />

Currently, the issue of illegal movement between India and Bangladesh is being addressed within the framework of human trafficking, but irregular migration remains unmentioned between the two countries during official discussions.<fnref n="879" />

<table><caption>Table 9: Number of detainees in detention centres in Assam in January 2018</caption><thead><tr><th>Detention centre</th><th>Since 2009</th><th>Since 2010</th><th>Since 2011</th><th>Since 2012</th><th>Since 2013</th><th>Since 2014</th><th>Since 2015</th><th>Since 2016</th><th>Since 2017</th><th>Since 2018</th></tr></thead><tbody><tr><td>Kokrajhar</td><td>0</td><td>8</td><td>3</td><td>3</td><td>2</td><td>5</td><td>50</td><td>42</td><td>38</td><td>3</td></tr><tr><td>Tezpur</td><td>0</td><td>5</td><td>1</td><td>0</td><td>4</td><td>28</td><td>43</td><td>63</td><td>115</td><td>6</td></tr><tr><td>Goalpara</td><td>1</td><td>3</td><td>4</td><td>3</td><td>4</td><td>16</td><td>60</td><td>74</td><td>82</td><td>5</td></tr><tr><td>Johrat</td><td>0</td><td>1</td><td>1</td><td>1</td><td>4</td><td>0</td><td>18</td><td>41</td><td>44</td><td>1</td></tr><tr><td>Silchar</td><td>0</td><td>1</td><td>0</td><td>7</td><td>2</td><td>10</td><td>6</td><td>15</td><td>42</td><td>2</td></tr><tr><td>Diburgarh</td><td>0</td><td>0</td><td>1</td><td>0</td><td>1</td><td>1</td><td>5</td><td>8</td><td>12</td><td>2</td></tr><tr><td>Total</td><td>1</td><td>18</td><td>10</td><td>14</td><td>17</td><td>60</td><td>182</td><td>243</td><td>333</td><td>19</td></tr></tbody></table>

Source: Designed to Exclude: How India's Court are allowing foreigners tribunals to render people stateless in Assam (Amnesty International India) 14 •

In January 2018, 302 (33,6%) of the 897 detainees had been in detention for more than 2 years.<fnref n="880" /> Whilst statistics on individuals declared illegal migrants by each FT can be found, it

<footnote n="876">⁸⁷⁶ Interview with Choudhury (n 416).</footnote>

<footnote n="877">⁸⁷⁷ *State of Assam v Moslem Mandal* (n 690) para 134 (viii).</footnote>

<footnote n="878">⁸⁷⁸ *Madani v Algeria* [2007] HRC CCPR/C/89/D/1172/2003 [8.4].</footnote>

<footnote n="879">⁸⁷⁹ ‘National Register of Citizens in Assam: A Spectre of Mass Statelessness in India’ (Development And Justice Initiative 2018) 7–8.</footnote>

<footnote n="880">⁸⁸⁰ *Between Hatred And Fear: Surviving Detention In Assam* (n 756).</footnote>
is not known whether the individual declared illegal as sent to the detention camp. Supposedly
all those judged illegal migrants are not arrested, mainly as the fear of detention may drive
individuals into hiding.<fnref n="881" />

A petition to the SC by social activist Harsh Mander challenged the inhuman treatment
of individuals in detention centre and their indefinite detention.<fnref n="882" /> On 10 May 2019 the Court
ordered the release of individuals who had completed three years in detention on condition of
payment of one lakh rupees and weekly reporting to the local police station.<fnref n="883" /> These conditions
are viewed as unreasonable and “harsh” by the Assamese lawyer Aman Wadud.<fnref n="884" /> Despite the
SC order, only nine ‘foreigners’ were released between May and September 2019, although
355 were still in detention since more than three years in June 2019.<fnref n="885" />

During Covid-19, a new petition was filed by the Assamese lawyer Aman Wadud, and in April
2020 the SC order reduced the period in the detention camps to two years, and lowered the
personal bond to Rs 5,000. Conditions were therefore somewhat relaxed.<fnref n="886" /> For the USCIRF
Commissioner, Anurima Bhargava, this testifies to the SC's recognition of individuals
vulnerability in detention centres.<fnref n="887" />

On 13 April 2021, 300 people in detention for more than 2 years were released.<fnref n="888" /> The release
however is not absolute, and individuals risk fresh detention. After the pandemic, a residential
address is now required along with a personal bond, and weekly presentation at the police
station. The reduction of public transport during the pandemic did not lead to the cancellation
of police appointments creating a problem.<fnref n="889" /> As people's geographical location is known to
police, the threat of deportation and imprisonment still hangs heavily.

<footnote n="881">⁸⁸¹ *‘Would Hide If a Police Van Passed’: Assam Woman’s Horrors of Citizenship Battle* (Directed by The Quint).</footnote>

<footnote n="882">⁸⁸² *Harsh Mander v Union of India* [2019] SC of India WP(C) 1045/2018.</footnote>

<footnote n="883">⁸⁸³ *Supreme Court Legal Services v Union of India* [2019] SC of India WP(C) 1045/2018.</footnote>

<footnote n="884">⁸⁸⁴ Wadud (n 661).</footnote>

<footnote n="885">⁸⁸⁵ Bhushan and D’souza (n 703).</footnote>

<footnote n="886">⁸⁸⁶ Interview with Hemadri (n 420).</footnote>

<footnote n="887">⁸⁸⁷ ‘USCIRF Welcomes Indian Supreme Court Decision on Assam Detention Centers as a First Step’ (14 April 2020).</footnote>

<footnote n="888">⁸⁸⁸ ‘Statelessness in India in the Global Pandemic’ (n 879).</footnote>

<footnote n="889">⁸⁸⁹ Interview with Begum (n 684).</footnote>
In sum, detention, whether long or short, psychologically affects detainees, disturbing mental well-being, and physical condition. High levels of depression among detainees were observed in Assam detention centres.<fnref n="890" /> Rules of international law see indefinite detention as heightening the risk of torture, because of the long-term psychological repercussions of indefinite custody.<fnref n="891" /> Deteriorating psychological conditions may also lead to a high number of suicide attempts. 30 deaths by suicide, all of Bengali speakers, were reported in these centres, but the government attributed these to illness.<fnref n="892" />

Men, women and boys less than six years old are separated from their families in the prison. Children below six years old stay are expected to stay within the detention centre with the mother. Children over six are declared Indian and sent outside the detention centre if they are male. Girls are allowed to stay with their mothers inside the centres.<fnref n="893" /> Yet, the State does not take responsibility for the child, leaving it to family members or the community. This situation may increase the danger of child abuse.<fnref n="894" /> Indefinite detention of children with their parents is contradictory to IHRL, and State Parties obligation under Article 24§1 of the ICCPR and especially Article 37(b) of the CRC declares that:

> 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 SC has at times pointed out the inhuman conditions and violation of core rights by the Assamese state in the detention centres. On 31 October 2018, during a petition hearing, the

<footnote n="890">⁸⁹⁰ ‘Report on NHRC Mission to Assam’s Detention Centres from 22 to 24 January 2018’ (n 876).</footnote>

<footnote n="891">⁸⁹¹ Alfred de Zaya, ‘Human Rights and Indefinite Detention’ (2005) 87 Int. Rev. Red Cross 15, 19.</footnote>

<footnote n="892">⁸⁹² Rahul Karmakar, ‘30 “Foreigners” Dead in Assam’s Detention Centres’ *The Hindu* (12 April 2020); ‘28 Deaths in Assam Detention Centres, But None Due to Lack of Medicines: Govt’ *The Wire* (28 November 2019).</footnote>

<footnote n="893">⁸⁹³ *Between Hatred And Fear: Surviving Detention In Assam* (n 756).</footnote>

<footnote n="894">⁸⁹⁴ According to the National Crime Records Bureau cases of rape and murder of children increase every year. In India, 53% of children face sexual abuse. In child-care institutions, children are at higher risks of abuse and torture. In 2017, in Assam – second state with the highest number of cases – 1127 children had suffered torture in 483 cases according to the National Crime Records Bureau. Rokibuz Zaman, ‘Child Abuse Worry in Assam’ *The Telegraph online* (Guwahati, 19 November 2019). ‘Child Abuse in India’ (*Helpline Law: Legal Solutions Worldwide*).</footnote>
SC highlighted the problem with indefinite detention: “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.”<fnref n="895" /> Furthermore, the SC put an end to the absence of difference between “illegal migrants” and detainees in detention centres by asking the Assam government to establish a detention manual within two months, and guarantee that families are not separated.<fnref n="896" /> In contrast, the Indian government's response to Harsh Mander's petition was quite different. It refused to acknowledge the violation of the right to hygiene, right to water, right to safety, right to dignity, or right to food.

### 4.3. From a regional to a national scale

Assam is not the only state to see the growth of detention centres (table 10). Since 2009, the central government, through the Ministry of Home Affairs, has instructed state governments to establish detention centres according to a Model Detention Centre Manual prepared by the government. The core objective is to limit movements of illegal migrants before repatriation.<fnref n="897" /> Since 2006, a detention centre run by the Foreigners Regional Registration Office is even operational in New Delhi.<fnref n="898" /> On 22 December 2019, the southern state of Karnataka opened a centre for undocumented migrants in Nelamangala, forty kilometres from Bengaluru.<fnref n="899" /> On 29 May 2019 the western state of Goa opened a detention centre. In Rajasthan, the detention centre is inside a federal jail. In May 2020, another detention centre was expected to be completed in the state of Punjab. Other states under BJP governments have demarcated land to build new detention centres. However, states under non-BJP governments like West Bengal, Maharashtra and Kerala have declared they will not implement the central government order relating to detention camps.

<caption>Table 10: Detention centres in India in 2020</caption>

<footnote n="895">⁸⁹⁵ ‘SC Slams Assam Govt for Keeping Foreign Nationals in Detention Centres without Plan’ *The Financial Express* (31 October 2018).</footnote>

<footnote n="896">⁸⁹⁶ *Re-Inhuman conditions in 1832 Prisons v State of Assam* [2018] SC of India WP (C) No. 406/2013.</footnote>

<footnote n="897">⁸⁹⁷ Vijaita Singh, ‘Since 2009, States Asked by MHA to Set up Detention Centres’ *The Hindu* (23 December 2019).</footnote>

<footnote n="898">⁸⁹⁸ Hussain, “‘How Is It Human?’” (n 863).</footnote>

<footnote n="899">⁸⁹⁹ ibid.</footnote>
<table><thead><tr><td>Detention centre</td><td>State</td><td>Status</td></tr></thead><tbody><tr><td>Goalpara district jail</td><td>Assam</td><td>Operational</td></tr><tr><td>Kokrajhar</td><td>Assam</td><td>Operational</td></tr><tr><td>Silchar</td><td>Assam</td><td>Operational</td></tr><tr><td>Dibrugarh</td><td>Assam</td><td>Operational</td></tr><tr><td>Jorhat</td><td>Assam</td><td>Operational</td></tr><tr><td>Tezpur</td><td>Assam</td><td>Operational</td></tr><tr><td>Lampur</td><td>Delhi</td><td>Operational</td></tr><tr><td>Mapusa</td><td>Goa</td><td>Operational</td></tr><tr><td>Alwar Central jail</td><td>Rajasthan</td><td>Operational</td></tr><tr><td>Amritsar Central jail</td><td>Punjab</td><td>Operational</td></tr><tr><td>Matia (Goalpara)</td><td>Assam</td><td>Under construction</td></tr><tr><td>Tarn Taran</td><td>Punjab</td><td>Under construction</td></tr><tr><td>Bengaluru</td><td>Karnataka</td><td>Under construction</td></tr><tr><td>Nerul</td><td>Maharashtra</td><td>Location identified</td></tr><tr><td>New Town</td><td>West Bengal</td><td>Location identified</td></tr><tr><td>Bongaon</td><td>West Bengal</td><td>Location identified</td></tr></tbody></table>

Table: Summant Sen and Naresh Singaravelu, Where are detention centres in India?, The Hindu (1 January 2020).

Detention seems to have become a political tool used for electoral purposes, or for national security, with little respect for human rights' considerations or equitable treatment of refugees or immigrants. The State is thus held to be proactively participating in producing illegality. A strong body of scholarship has exposed the practices of detention camps as tied to the process of nation-building, through the control of borders, control of migration and creation of a sense of security. These elements centred around the idea of legality vs. illegality consolidate the concept of belonging to the nation, and thus, citizenship and nationality in legal terms, as a form of *contrat social*.<fnref n="900" /> These forms of detention reflect the normalization and

<footnote n="900">⁹⁰⁰ Bridget Anderson and Vanessa Hughes (eds), *Citizenship and Its Others* (Palgrave Macmillan UK 2015) 2; Leanne Weber and Benjamin Bowling, ‘Valiant Beggars and Global Vagabonds: Select, Eject, Immobilize’ (2008) 12 Theoretical Criminology 355.</footnote>
routinization of a “carceral migration policy”,<fnref n="901" /> in which confinement is the punitive culminating point for immigrants.

**5. Conclusion**

The case of India is not a unique example of a country targeting minorities through the process of arbitrary deprivation of nationality or citizenship. The particularity of the Assamese case and India is linked firstly to the gradual delegation of the Central government's power to state governments to determine who is an Indian national. Secondly, because of multiple different legislations – Passport Act, Foreigners Act, FTO, Registration of Foreigners Act and the Citizenship Act – citizenship regulations have led to the inter-dependence of legislations and to its current complex regime.

The lack of consideration by FT to missing documents is striking in a country where uniform documentation was, and remains a challenge even today. It highlights the voluntary separation between this jurisdiction and the ground reality in the state. More importantly, it indicates that despite the judiciary's obligation to ensure the protection of individuals rights and improve State's policy through its rulings,<fnref n="902" /> the Indian judiciary systems fails to do so. For Amnesty International India,<fnref n="903" /> the SC and the High Court, in this case the Gauhati High Court, have not only weakened the separation of powers, but more dangerously, they have accelerated the politicisation of the judiciary. For instance, in the *Sonowal* case, which violated national and IHRL, the use of a Government of Assam's political report of to the President of India in 1998 and its acceptance by the Court, led the same Court in 2014 to legitimise the updated NRC.<fnref n="904" /> Likewise, it has held individuals accountable for human rights abuses and increased the impunity of government bodies.

<footnote n="901">⁹⁰¹ Jenna M Loyd, 'Carceral Citizenship in an Age of Global Apartheid' (2015) 8 Occasión 1, 11.</footnote>

<footnote n="902">⁹⁰² Fahed Abdul-Ethem, 'The Role of the Judiciary in the Protection of Human Rights and Development: A Middle Eastern Perspective' (2002) 26 Fordham Int. Law J. 761, 761.</footnote>

<footnote n="903">⁹⁰³ *Between Hatred And Fear: Surviving Detention In Assam* (n 756).</footnote>

<footnote n="904">⁹⁰⁴ 'Interview with Ravi Hemadri' (*Parichay - The Blog*, 5 January 2021).</footnote>
The entire process of FT, from the judge's selection, the absence of impartiality, to discriminatory practices are all accentuated by the near impossibility to access FT rulings, making the procedure opaque, unaccountable and inaccessible. It recalls the importance of citizenship in today's world but more importantly, the link between citizenship and the respect of legal rights conferred by the Constitution.

The application of citizenship has been, as observed, a particularly sensitive matter in Assam. Defining “Assamese people” remained a contentious subject for decades, as local and national parties battled for different cut-off dates (1951 or 1971) to define who was Assamese. The exclusion of 1.9 million people from the final register deprived them of the right to have rights. The procedural aspect of establishing citizenship also raises questions about the State’s respect of human rights. The institution of FT and detention camps has revealed arbitrary and biased decision-making, paucity of legal safeguards, and a disturbing interference by the executive in the appointment of judges.

At the international level, concern with deprivation of nationality that excludes groups, particularly minorities, is not new. Social activist Ravi Hemadri maintains that individuals need to understand the core link between citizenship and rights.<fnref n="905" />

The exclusion of individuals from the NRC and their categorisation as foreigners by FT not only creates statelessness but leads to their exclusion from other rights and services within the country. During Covid-19, individuals declared foreigners saw their ration cards cancelled and based on their appearance, individuals have also seen their food rations refused.

Marginalisation, and then exclusion of Assamese Muslims is not only due to structural discrimination, but more importantly, furthered by a political agenda promoted by the BJP in the region. Political interreference through FT has challenged the judiciary's independence not only in Assam but more largely at a national level. For a decade arbitrariness and discrimination have become disturbingly associated with the Indian judicial system.

<footnote n="905">⁹⁰⁵ ‘Assam Govt, AASU Voice for Re-Verification of NRC’ (n 839).</footnote>
Conclusion

India's perception as a country respectful of IHRL and more importantly of rule of law is challenged by its current approaches to the right to citizenship, the right to non-discrimination and minority rights. The country's historical position, and official commitment to democracy makes this deviation more problematic, particularly as it is one of the few South Asian States that has avoided military interference and coup-d'états so far. At the international level, it still qualifies as a democracy, despite its treatment of minorities like Sikhs, or Muslims.

At the judicial level, the SC has been acknowledged as modern and innovative. Such a presentation makes it more difficult to understand a gradual politicisation of the judiciary, demonstrated in the above chapters. This politicisation is specifically apparent in relation to certain categories of individuals (migrants, Muslims) and certain types of rights (right of representation or citizenship). Some cases of the SC do pinpoint this issue such as the 2011 case, *Arumugan Servai v. State of Tamil Nadu*.<fnref n="906" /> In this jurisprudence, the SC drew attention to two points: firstly, the State governments' obligation to punish human rights violation; secondly, the role of government officials and politicians in the increasing violence towards marginalised communities, vulnerable individuals and minorities, which can impact the legal system.<fnref n="907" /> While it does not clearly point out the institutionalised discriminatory mentality in Indian society, it recognises the role of identities in hate crime and institutions' difficulties in addressing these forms of violence.<fnref n="908" /> Consequently, the SC mandated that a copy of the ruling should be sent to all Honorable Judges of High Court, thus emphasising the critical role of lower Courts in protecting individuals core rights.<fnref n="909" />

Whilst it can be argued that the intervention of political ideologies within the judicial system would bring about positive change, and promote respect of individuals human rights in States, in the case of India, the development of ethnic nationalism works to the contrary. In fact, the US Commission on International Religious Freedom back in 2016 noted that India was

<footnote n="906">⁹⁰⁶ Arumugam Servai v State of Tamil Nadu [2011] SC of India 6 SCC 405.</footnote>

<footnote n="907">⁹⁰⁷ See also: *Tehseen S Poonawalla v Union of India* [2018] SC of India 9 SCC 501 [40-c-ii].</footnote>

<footnote n="908">⁹⁰⁸ M Mohsin Alam Bhat, ‘Mob, Murder, Motivation: The Emergence of Hate Crime Discourse in India’ (2020) 16 SLR 1, 26–31.</footnote>

<footnote n="909">⁹⁰⁹ *Arumugam Servai* (n 916) para 17.</footnote>
witnessing a deterioration of religious tolerance.<fnref n="910" /> According to the 2016 Report, religious-motivated violence is often linked to Hindu nationalist groups who act with the tacit support and incitement of members of the ruling BJP. Furthermore, these actions occur in a pervasive climate of impunity.<fnref n="911" /> This atmosphere of impunity, violence towards minorities, and the transgression of rule of law in India have increased with the adoption of laws considered as discriminatory towards minorities.

Minorities have been an important issue in Indian society since the colonial period and remain so today. Even if constitutional guarantees of positive discrimination have been established in order to redress historical, social and economic disadvantages of specific groups, they have resulted in institutionalising social discrimination. This remains a core aspect of daily, administrative and judicial life. Whilst the debates promoted by the ICA, tried to defend what we understand today as human rights principles at the legal level, notably through the institution of political safeguards towards minorities, a regression can be observed today. This is mainly due to a political triumph and appeal of Hindutva ideology. The specific case of love-jihad is one illustration of the social impact of this political intervention.<fnref n="912" /> More recently, the debate

<footnote n="910">⁹¹⁰ ‘Annual Report of the U.S. Commission on International Religious Freedom - Tier 2 - India’ (US Commission on International Religious Freedom 2016) 159.</footnote>

<footnote n="911">⁹¹¹ “These issues, combined with longstanding problems of police bias and judicial inadequacies, have created a pervasive climate of impunity, where religious minority communities feel increasingly insecure, with no recourse when religiously-motivated crimes occur”, ibid.</footnote>

<footnote n="912">⁹¹² Behind these new laws and changes in judicial rulings on religions conversion lie two deeper issues: (i) the possibility of establishing unconstitutional measures; (ii), the executive's capacity to openly attack religion, and target gender. In short, they are held to reflect a disturbing use and abuse of power to influence these dimensions. Whereas the constitutional language and terminology are gender-neutral, rulings show that women are subjected to more severe punishment in cases of religious conversion. In addition, the Indian patriarchal system and the intervention of families in women's lives increase women's vulnerability. In fact, out of 14 cases concerning women converting to another religion to marry, 12 were registered by families. Such a trend reflects a deviation from a gender-neutral approach that is considered a benchmark of legal neutrality. It sets a disturbing precedent of abiding by patriarchal social norms, weakening women's empowerment by reducing their scope to make life decisions based on their own choices. Yet the judicial system, and thus judges, have the obligation to put an end to inequalities and discriminatory practices through their rulings. Smt Noor Jahan Begum @ Anjali Mishra & Anr v State of UP [2014] Allahabad High Court WP (C) No. 57068 of 2014 [8-ii]; Priyanshi @ Km Shamreen And Another v State of UP and 3 Ors [2020] Allahabad High Court WRIT-C No. - 14288 of 2020; Salamat Ansari & 3 Ors v State of UP & 3 Ors [2020] Allahabad High Court Crl. Mis. WP No. 11367 of 2020 [5]; ‘प्रत्यक्ष तटस्थता के पहलूँ क्या हम महिलाओं और उनकी पसंद का सम्मान करते हैं?’ लाइव लॉ.in (3 January 2021).</footnote>
around the right of Muslim women to wear hijab in colleges, indicates the dangers of such political movements, and more significantly, the need for a neutral judicial system.<fnref n="913" />

This political and judicial environment reinforces the conclusions reached in the previous chapters concerning the troubling consequences of the CAA and the NRC. This legislation along with the National Register, favours religious belonging rather than the original criteria of *jus soli, jus domicilii and jus sanguinis*, advanced during the CAD. In practice, this has resulted in daily discriminations, producing statelessness. Though judges have a duty to protect the rule of law whilst respecting the application of national legislations, and indirectly IHRL incorporated therein, it has been observed that marginalised groups (ethnic and religious minorities, women or children) are easy targets of discrimination. The SC is the final arbiter. Yet, in this case, lower courts (High Courts) or even FT serve as the first contact for these individuals with the machinery of law. Even if the SC remains an independent and neutral body, as it should be in principle, the problems that arise with lower courts can create a widespread impression that the judiciary in India is not independent. FT abuses analysed above testify to international human rights violations and more specifically, of minority groups. Judges mostly comply with political ideologies and expectations. The Gauhati High Court's difficulty in positioning itself as a defender of minority rights seems to reflect its inability to function independently. Jurisprudential changes make it problematic to openly affirm the politicisation of the Court. Finally, the SC's slowness in treating CAA WP invites the conclusion that this apex body is not as independent, innovative or progressive as some legal academic circles or body treaty organs may declare.

Hannah Arendt's well-known affirmation on nationality as the right to have rights still resonates strongly today. Citizenship regulation in a context overly sensitive to national security, as well as external factors that lead to ethnic tensions, challenge the effectiveness of both international law and the rule of law through the instrument of the judiciary and courts to prevent statelessness. The Assamese case, interrogates India's attitude towards its obligation to respect IHRL, mainly its obligation to investigate human rights violations,<fnref n="914" /> *ex officio* by

<footnote n="913">⁹¹³ Aishat Shifa v The State Of Karnataka [2022] SC of India Civil Appeal No. 7095 of 2022.</footnote>

<footnote n="914">⁹¹⁴ Zambrano Vêlez y otros v Ecuador [2007] IACtHR Merits, Reparations and Costs, Series C, No. 165 [88].</footnote>
informed authorities,<fnref n="915" /> as it forms an integral part of the procedural dimension of substantive human rights. The current Indian government has understood that depriving individuals of their nationality makes them invisible in the eyes of the administration. Judges have accentuated this invisibility by putting aside core rights such as the right to a fair trial. The violation of this right in addition to discrimination sheds light on the difficulties face by minorities in defending themselves in a corrupt system.

The following chapters will examine the relation between India and human rights regional systems, and how each systems analyse cases of discrimination towards minority groups.

<footnote n="915">⁹¹⁵ Miembros de la Aldea Chichupac y Comunidades vecinas del Municipio de Rabinal v Guatemala [2016] IACtHR Excepciones preliminares, fondo, reparaciones y costas, Series C, No. 328.</footnote>
Part 3. Protecting minority groups within regional institutions
Introduction

The Assamese case demonstrates the complexity of ensuring judges’ independence on
questions related to political programs. It illustrates how the intersectionality of factors like
religion, gender, class, social category, or geographical localisation, accentuates not only
discrimination of minority groups, but more importantly, their vulnerability under the “matrix
of domination”.<fnref n="916" />

Specific categories of people apart from minorities, such as women or children, are considered
as vulnerable. This concept, which can be traced to the 1979 Belmont report related to ethics
and health care research, describes individuals “considered to be worthy of protection”.<fnref n="917" /> For
the scientist Florencia Luna, women are not *per se* vulnerable, but rather, are rendered
vulnerable.<fnref n="918" /> This perception can be transposed to minority groups as it is the situations that
make them vulnerable, and thus call for specific and adequate safeguards. Two consequences
of the use of the label “vulnerable” appear: firstly, it may, paradoxically, increase social and
institutional discrimination; and secondly, States have a stronger responsibility towards these
categories.

The State’s responsibility is not absolute, yet it can be held accountable if it fails in its duty of
due diligence. In 1927, the Institute de Droit International argued that the State is liable when
damage results from its failure to take measures which should be taken to prevent or repress
acts.<fnref n="919" /> Furthermore, it is responsible for individual harmful actions only when it has not been
diligent or taken necessary measures to prevent them or to react against them.<fnref n="920" />

<footnote n="916">⁹¹⁶ This concept used by Collins in her book Black Feminist, looks at the oppression of women through the angle of race, class, and gender. Patricia Hills Collins, *Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment* (Hyman 1990).</footnote>

<footnote n="917">⁹¹⁷ Florencia Luna, ‘Elucidating the Concept of Vulnerability: Layers Not Labels’ (2009) 2 IJFAB 121, 123.</footnote>

<footnote n="918">⁹¹⁸ ibid.</footnote>

<footnote n="919">⁹¹⁹ Article 3 of the Resolution of 1 September 1927 ‘Annuaire, Tome 33, III’ (Institut de Droit International 1927) 331.</footnote>

<footnote n="920">⁹²⁰ ‘Annuaire, Tome 33, I+II’ (Institut de Droit International 1927) 466.</footnote>