Dalgaon (Assam): On a sunny winter afternoon, Hasina Bhanu, 55, lay on her bed with a blank stare, in her tiny, one-room thatched mud house in Shyampur village near Dalgaon town in Assam’s northwestern district of Darrang.
It had been seven days since a court ordered her release from a two-month long incarceration at a detention centre in Tezpur town, but she found it hard to get up because the incarceration, she said, had aggravated her high blood pressure.
A frail, hunched woman with a diffident manner and hushed voice, Bhanu said she was “too weak”, now to do daily chores.
Before being sent to the detention camp, Bhanu spent most of her time doing household work. Her 18-year-old son Abbas Ali has taken over those chores. A school dropout and daily wage worker in Bengaluru, Ali returned home when was told his mother was being taken away.
“Even my vision seems to have gone down,” she said. “I can barely see.”
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Outside the house, her son, her husband, a farmer and brother-in-law, an occasional journalist, quietly sifted through several documents neatly stacked in a thick red folder.
“We have to take care of our documents more than we take care of our daily meals,” said Akram Hussain, Bhanu’s brother-in-law.
On the night of 3 October, the Assam border police–a force dedicated to stopping illegal migration in the state–took Bhanu into custody on the grounds that she was an illegal Bangladeshi immigrant.
On 13 December, after more than two months, the Gauhati high court ordered Bhanu’s release, dismissing a judgement of a foreigners’ tribunal (FT) that declared Bhanu “Indian” in 2016 but five years later declared her a “foreigner”.
FTs are quasi-judicial bodies that decide on citizenship matters in Assam. The same FT in Mangaldoi subdivision of Darrang district declared her a “foreigner” in 2021.
This citizenship trauma for Bhanu and her family members began when she was first declared a D-voter in 1997. In Assam, a ‘D’ or ‘doubtful’ voter is someone with questionable electoral credentials, suspected of being an illegal Bangladeshi immigrant.
The D-voter is an idea unique to Assam, a state embroiled in the issue of illegal migration from bordering Bangladesh. An inquiry set up by the election commission or a referral made by the Assam border police can end in a D-voter stamp.
Hundreds In Detention Camps
In 2020, the Assam government told the central government that 86,756 people had been declared “foreigner” over the previous five years, while 83,008 cases of D-voters were pending in around 100 foreigners’ tribunals across the state.
Several hundreds declared foreigners were incarcerated in detention camps located in six jails across Assam. Bhanu was kept in one such detention camp in Tezpur jail in northern Assam, about 100 km east of her home.
“It was always dark inside there,” Bhanu told Article 14, adding that she could not swallow her food for a couple of days due to loss of appetite, fear and worry.
The jail authorities, she alleged, even slapped her a few times, threatened they would keep her for more than two years at the camp and intimidated her by saying that they would splash “hot water on her nose and face”.
When Article 14 sought comment on Bhanu’s allegation from Biraj Boruah, the superintendent at Tezpur central jail when she was incarcerated there, he said he could not comment since he had moved out of the job in December. Arup Phukan, the current superintendent, refused comment.
The contentious process of disenfranchisement has been at the heart of Assam’s contemporary politics. In 2014, the Supreme Court ordered a revamp of the National Register of Citizens (NRC), a complex effort to weed out illegal immigrants from Assam.
The NRC lists those who can prove that they or their ancestors entered Assam on or before 24 March, 1971, when the war to liberate Bangladesh began. More than 1.9 million of 33 million applicants were left out of the complete draft of the NRC published on 31 August 2019.
During the preparation of the NRC, the Assam government ordered that any person with a D against their name or a “foreigner” case pending at a foreigners’ tribunal, should not be included in the NRC.
There are hundreds like Bhanu, often from poor, illiterate and marginalised families, lacking resources to clear their names at foreigner’s tribunals or appeal in higher courts, victims of the state’s struggle with migration and the politics it has spawned.
Assam’s Migration & Citizenship Mess
Assam has had a long history of migration. During British rule, the state was merged with the Bengal Presidency for administrative purposes. Poor migrant workers, willing to settle for low wages, were brought into work on Assam’s tea plantations between 1826 and 1947.
After India’s Independence, there were two refugee influxes into Assam from across the border–first after the partition of India in 1947, and then, in the run-up to the liberation of Bangladesh in 1971.
The debate over citizenship in the state is ruled by the fear that “foreigners” will reduce Assam’s indigenous population to a minority. This fear triggered the movement, popularly known as the Assam Agitation, led by the All Assam Students’ Union (AASU) between 1979 to 1985.
It ended with the signing of the Assam Accord between the then Prime Minister Rajiv Gandhi and the AASU. The accord fixed 24 March 1971, as the cut-off date for people entering Assam to claim Indian citizenship.
‘If I Am Bangladeshi, What Am I Doing Here?’
Bhanu said she was born in Barpeta district of Assam and moved to Dolgaon–about 160km east–along with her father when she was a child. In Dolgaon, she was married off to Ayen Ali, with whom she has six children–four daughters and two sons.
Her proof of being Indian includes her father’s name in the 1951 National Register of Citizens and voting certificate from 1966 and loan documents that he transferred to her.
“If I am a Bangladeshi, then what am I doing here?” said Bhanu.
Bhanu was asked to produce her citizenship documents several times before the foreigners’ tribunal in Mangaldoi. There are four such tribunals in Mangaldoi and Bhanu was allotted tribunal number 4. In 2016, much to the family’s relief, the tribunal declared her an Indian.
But the D-tag remained on Bhanu’s electoral roll even though she was declared an Indian. In 2019, Bhanu was notified again by the foreigner’s tribunal that she was a D-voter and in March 2021, she was declared a foreigner.
On 3 October 2021, around 11 pm, the border police arrived at their village and asked the neighbour’s 16-year-old boy about Bhanu’s whereabouts, he said he did not know where she was. According to Ayen Ali, the police then punched him in the face.
“When we came back from the boithok (a religious gathering), the police were not interested in looking at the 2016 judgement copy or her legacy documents, they just took her away,” Ayen Ali told Article 14.
"I wondered how this was possible as she was once declared Indian in 2016,” said Ayen Ali. “We also have all our documents in place–her father’s 1951 NRC, her father’s voting certificates, her land records and more.”
Hussain, Bhanu’s brother-in-law, alleged that the Mangaldoi foreigners’ tribunal number 4 had a reputation for harassment and that they were singled out by the police because of their religion.
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“The border police are responsible for verifying documents, but they are not following any rules,” said Akram Hussain. “We are being targeted because we are Muslims.”
The HC, as we said, rejected the tribunal’s 2021 opinion.
A Clear Violation Of Fundamental Rights: Lawyer
“We are unable to understand how the Tribunal proceeded to examine the matter and made the aforesaid observation,” said a HC bench of Justices N Kotiswar Singh and Malasri Nandi.
From the law’s point of view, it was a “clean case”, said Guwahati-based advocate Zakir Hussain, Bhanu’s counsel. He pointed out that the high court also cited a 2019 Supreme Court judgement [Abdul Kuddus vs Union of India], in which it has been held that the principle of res judicata (which prohibits pursuing the same case by the same parties once a judgement has been made) would be applicable even in a proceeding before a foreigners’ tribunal.
“This precedent has been followed by the Gauhati HC in a number of judgments since the passing of that order,” Zakir Hussain said.
Keeping this judgement in mind, the detention of Bhanu even for one day was “illegal and against the law”, Zakir Hussain said. “It is a clear violation of her fundamental rights. When she was declared an Indian, the district commissioner should have been informed. “It is lapse on the part of the FT or the police administration that they weren’t able to do so,” said Hussain.
We Had To Abide By Tribunal Decision: Police
When Article 14 sought comment from the border police at Darrang district, Siddhartha Buragohain, additional superintendent of police (ASP) said the case against Bhanu was launched in 1998 under the Illegal Migrants (Determination by Tribunals) (IMDT) Act, 1983.
Under the Act, the burden of proving citizenship credentials rested on the accuser and the police, not the accused. This was a major departure from the provisions of the Foreigners Act 1946, which states that “the onus of proving whether a person is a foreigner or not, shall lie upon such person”.
But the IMDT Act was repealed by the Supreme Court in 2005 in the Sarbananda Sonowal vs Union of India case. Subsequently, the Foreigners Act, 1946, was used again while investigating citizenship matters.
According to Buragohain, the 2016 judgement where Bhanu was declared an “Indian” was a result of the inquiry into her citizenship status in 1998 under the IMDT Act. However, after the Foreigners Act came in vogue again, a new inquiry was set up against Bhanu in 2013 based on a referral made by the local police where “she was unable to produce the required documents”.
The 2021 judgement by the foreigner’s tribunal declaring her a foreigner was based on this 2013 inquiry. Tribunal number 4, according to Buragohain, acknowledged that Bhanu was declared an Indian in 2016 but went against its own judgement and came to the conclusion that she was not born from Indian parents.
“We don’t make decisions on our own,” said Buragohain. “We had to abide by the tribunal’s judgement and had to take her to the detention camp.” On 13 December 2021, when the Gauhati HC order was made, he added, they prepared for her release from the detention “immediately”.
Bhanu’s lawyer, Zakir Hussain said when a case was already pending at a foreigner’s tribunal, irrespective of whether it is under the IMDT or the Foreigner’s Act, it “does not give border police the liberty to start a fresh inquiry”.
“That is a lapse on the part of the police administration,” said Zakir Hussain. The tribunal erred, he added, because despite documentary evidence from the previous judgement, “a proceeding was conducted where Bhanu was declared a foreigner, which led to her detention”.
Loans & Land Sale: ‘How Are We To Survive’
Due to the “hassle and harassment”, Bhanu’s youngest son Abbas Ali has not been able to appear for his class 10 exams.
Ayen Ali spent Rs 500,000 on the legal process, raising money by pledging his land to three moneylenders.
“How are we supposed to survive?” Ayen Ali asked.
Zakir Hussain noted that other detainees released after being declared Indian, have told him they were treated like convicts and criminals at the detention camps.
“These people are not criminals,” said Zakir Hussain. “They are behind bars due to lack of documents.”
(Sanskrita Bharadwaj is an independent journalist based in Guwahati.)