Guwahati: On a cold winter morning in February 2022, Nur Hussain zipped open a fraying backpack that held sheafs of documents. “I can show you all the documents we have got that prove we are Indians,” said Nur, 38, as his wife Sahera Begum, 27, looked on.

Their two children sat on a wooden single bed in their one-room tin shanty deep inside Narengi, a suburb of Assam’s capital city. It had been just over a year since they had been released from a detention centre in Goalpara district, 134 km west of Guwahati, where they had been kept for 18 months on grounds that they were illegal Bangladeshi immigrants. 

When Hussain and Sahera were arrested, they had been forced to take their two children, now aged  8 and 9 years, along with them. “We were scared to leave them alone,” Sahera said.

The trauma of the long detention with their children while they faced the prospect of  statelessness was behind them now, but Hussain and Sahera were still struggling to piece their life together. When Article 14 contacted the couple, they spoke of the challenges in having their elder son re-admitted to a school from which they had to pull him out. 

Their plight is not an isolated account but mirrored those of tens of thousands embroiled in citizenship issues in Assam. 

When Assam’s updated National Register Of Citizens (NRC) was published in August 2019, as many as 1.9 million people were left out of the list and faced an uncertain future. The NRC is a register of Indian citizens, first published in Assam in 1951 after the Census that year.

Fearing dispossession, many of them unable to afford legal representation, these men, women and children have since then faced hostile proceedings including arrest and being declared ‘illegal immigrants’. Tribunals declared 1,43,466 people “foreigners” until 31 December 2021. As of 1 February, there were 1,23,829 pending cases across 100 tribunals in the state. 

For those eventually found to be bonafide Indian citizens, like Hussain and Sahera,  there was neither reparation nor any assistance in rebuilding lives in disarray after months of incarceration.

“In a country that is increasingly becoming dependent on documentation and hostile towards its minorities, citizenship is the entire existence,” said Aman Wadud, a lawyer who has represented many alleged illegal immigrants. “Without citizenship, there is no access to all other rights. There is constant fear of getting arrested when declared foreigners by a tribunal.” 

Litigation in higher courts is expensive unless a lawyer takes up the case pro bono, said Wadud, a Fulbright scholar currently in the United States. According to him, there is currently no parallel in India or in the rest of the world that is “more economically and psychologically devastating than these circumstances”.

Visits By Policemen: How Nur & Sahera’s Ordeal Began

In early 2017, men from the nearby Satgaon police station in Guwahati started visiting Hussain and Sahera frequently, the couple told Article 14.

They would ask the couple about their family background, their village address, etc. “I told them whatever I knew about myself,” said Hussain, a rickshaw puller who hails from Udalguri district of the Bodoland Territorial Council in northern Assam. 

On the policemen’s second visit a month later, they told Hussain that someone from his  village would have to testify on his behalf at a police station in Udalguri. 

In 2021, The Indian Express reported that Hussain’s grandparents’ names appeared in Assam’s NRC of 1951. His father’s name, and that of his grandparents, were in the 1965 voters’ list. Sahera’s father’s name was also in the 1951 NRC and the voters’ list of 1966. They had land documents dating back to 1958-59. 

The cut-off date to identify “foreigners” in Assam is 24 March 1971. 

The third time the police visited Hussain and Sahera’s home, they were informed that their case had been referred to a foreigners’ tribunal (FT), quasi-judicial bodies that decide on citizenship matters in Assam. 

In August 2017, Sahera’s case was referred to a FT in Guwahati, and in January 2018, the same was done for Hussain. 

Hussain managed to find legal representation by paying Rs 4,000 for a lawyer, but Sahera went unrepresented at the tribunal. Later, his lawyer pulled out of the case—“she wanted more money, around Rs 20,000”. 

Hussain’s monthly income was about Rs 6,000, of which he paid Rs 2,500 as rent for his room. 

Thereafter, neither Hussain nor Sahera had a lawyer, and missed a few hearings  at the tribunal. Under section 9 of the Foreigners’ Act, 1946, the onus of proving citizenship  lies on the individual, so, when they do not appear, the tribunal may proceed ex parte.

On 29 May 2018, the FT declared Sahera a “foreigner”. Hussain was declared a foreigner on 30 March 2019. In June 2019, the husband and wife were arrested and sent to a  detention centre in Goalpara district.

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In the trial, the lawyers challenged the validity of the investigation. The inquiry into their citizenship had been brief and casual—and the couple was not given a chance to participate as required by law. “We were able to prove through documents and oral evidence that these two persons are Indians,” said Guwahati-based advocate Zakir Hussain, one of the lawyers who represented the couple.

The Gauhati HC ordered a retrial and the case was referred to the FT where they were both granted bail. A few days after receiving bail, the couple were also declared “Indians” by the tribunal, in December 2020. 

A Contentious Disenfranchisement Of Migrants

Assam has a long history of migration. Under colonial rulers, 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 Independence, there were two rounds of refugee influx into Assam from across the border—first after Partition 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 anxiety that “foreigners” will reduce Assam’s indigenous multi-ethnic population to a minority. 

In 2020, the Assam government told the Union government that 86,756 people had been declared “foreigners” over the previous five years, while 83,008 cases of ‘D-voters’ were pending in nearly 100 foreigners’ tribunals across the state. 

A ‘D’ voter in Assam is someone with questionable electoral credentials—suspected of being an illegal Bangladeshi immigrant. An inquiry set up by the election commission or a referral made by the Assam border police, a force dedicated to stopping illegal migration into the state, may end in a D-voter stamp. 

This was what happened to Hussain and Sahera—labelled D-voters based on an inquiry by the border police, their cases were later referred to an FT.  

About 185 people declared “foreigners” by the tribunals are incarcerated in detention camps located in six jails across Assam and over 1,000 are out on bail. 

Chief minister Himanta Biswa Sarma of the Bharatiya Janata Party informed the state legislative assembly in March that 31 persons declared foreigners died in detention camps between 2016 and 2022, while many were granted bail over the years. A Supreme Court order dated 10 May 2019 directing the release of persons declared foreigners after three years in detention led to 273 being released. Similarly, 481 others were released after another Supreme Court order on 13 April 2020 reduced the detention period to two years, after which they continue to try to prove their citizenship in FTs or courts.

This disenfranchisement in Assam led to the Supreme Court ordering a revamp of the NRC in 2014. The NRC is a complex effort to weed out illegal immigrants from Assam. It 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 with a case pending at a foreigners’ tribunal would not be included in the NRC. 

There are hundreds like Hussain and Sahera, often from poor, uneducated and marginalised families, lacking resources to clear their names at foreigners’ tribunals or afford lawyers to appeal in higher courts.

‘It Was Exactly Like A Prison’

Throughout the period when Hussain and Sahera were incarcerated at the detention centre, their children were with them. 

Hussain was kept in a separate building within the same facility while Sahera and the two children—Shahjahan and Hasina—were in a different building. Over their 18 months of incarceration, Hussain met his children only on occasions when a relative visited the family, which was rare.

According to reports, the Assam government decided in 2021 to rename the detention centres “transit camps”. Sahera said, “Jail’ei aisle! (it was exactly like a prison).”  

She described how the building where her husband lived was separated from theirs by large brick walls and barbed wire fences. Each room housed around 14 people who slept on floors with a blanket to cover themselves. “The food was bad, there was barely any salt in it, and it would make us extremely sleepy,” said Sahera, who hails from Assam’s Bongaigaon district. “We would often complain about the food and after our complaints, the food did improve though.”  

Shahjahan and Hasina were shy about sharing their experience, and Hussain and Sahera answered questions on their behalf. They were scared, according to Sahera, for spending “18 months in a set-up that is just like a prison” could not have been easy. “My children were loved though, even the jail superintendents helped us. I think they were afraid because if something happened to my children, they would be responsible,” Sahera added.

Assam CM Sarma said in 2021 that the state’s detention camps for foreigners were then holding 22 children, including 20 below the age of 14 years.

According to Rafiqul Islam, a child rights activist from Assam, in a situation where children have to be sent to the detention centre along with their parents, they must be produced in front of the juvenile justice board and should be considered children in need of care and protection. Under the Juvenile Justice (Care and Protection of Children) Act, 2016, the child must be produced before the child welfare committee (CWC). “The CWC will decide what should be done,” Islam said.

But in the case of Hussain and Sahera’s children, no such procedure was followed. 

Often, mothers in incarceration in a detention camp are asked to decide how their children will be cared for, and they prefer taking their children along with them because there is no one to leave the child with, said Wadud.  

The Constitution of India lists prisons as a state subject, making state governments responsible for their own prison manuals. Sahana Manjesh, an advocate and a legal researcher based in Mumbai, said these prison manuals include a section dedicated to children. The law allows a mother to keep a child with her in prison until the child is six years old. “Every state prison manual for instance is supposed to have a set diet chart for pregnant mothers and mothers who have just delivered,” Manjesh said.

Such children’s education and play, recreational and social activities are often compromised, Manjesh noted. “It’s obviously not a great environment for children to grow up in,” she said. “They are required to have a teacher but that’s one of the things that the prisons might not have in place.”

The entire citizenship rigmarole has indeed affected Hussain and Sahera’s children’s education. Shahjahan had to be pulled out of school when the couple was incarcerated. “We are hoping to send him to school again,” the father said.  

While there is no research on whether the prison manual applies to the detention centres in Assam, advocate Zakir Hussain said facilities at these camps should be better because those detained are not convicted criminals. “Most of their cases are pending in tribunals and high court, and they are trying to prove their citizenship.”

Referring to Hussain and Sahera’s case and their children, Wadud, who is “against the very process of detaining”, noted that “at least on humanitarian grounds, the mother should not have been detained along with her two children.” 

(Sanskrita Bharadwaj is an independent journalist based in Guwahati, Assam.)