Supreme Court order on ‘illegal foreigners’ in Assam is deeply troubling

Unlike Convicted Foreign Nationals (CFN), DFNs, a class unsocial to Assam, are not charged with usurpation of the Foreigners Act 1946. They go truthful done an arbitrary process that begins with the Assam Border Police questioning their citizenship and culminates successful them failing to person 1 of the FTs that they are so genuine Indian citizens. In astir cases, they bash person bequest documents to amusement intergenerational roots successful Assam. But, the FTs, which are not adjacent due judicial courts, often disregard those documents based connected infinitesimal method grounds, specified arsenic tiny spelling discrepancies. In immoderate cases, the FTs adjacent walk these orders ex parte, that is, successful the lack of the accused.

These regressive procedural pathologies person not gone unnoticed by higher judicial institutions. The Gauhati High Court, which has the powerfulness to perceive appeals against FT orders, has connected respective occasions overturned tribunal orders portion noting that these half-courts had callously dismissed the evidentiary worth of bequest documents. In fact, past July, the Supreme Court itself overturned a Gauhati High Court judgement upholding an FT bid against 1 Mohammad Rahim Ali. Calling it a “grave miscarriage of justice”, the apex tribunal reinstated Ali’s Indian citizenship and observed that determination was nary grounds to amusement that helium had roots successful Bangladesh.

That was conscionable 1 lawsuit that had managed to wade done the judicial maze and scope the Supreme Court. Could akin miscarriages of justness not person happened successful the cases of the existent radical of detainees that the Supreme Court wants deported? What if astir of them were declared foreigners wrongly? Would they present not extremity up successful a state that is wholly overseas to them?

By ignoring these pernicious possibilities and captious questions astir Assam’s citizenship determination system, the Supreme Court has placed the cart earlier the horse, similar it did erstwhile it ordered the Assam authorities to update the NRC successful 2013 without resolving cardinal issues astir the ineligible contours of the Assamese identity. Much similar successful the NRC’s case, this bid could person existent consequences connected the lives of existent people.

Worryingly, the tribunal besides glossed implicit the question of statelessness. It is apt that astir of the DFNs are not Bangladeshi citizens successful the archetypal place. Second, adjacent if the authorities someway shows that they person addresses successful Bangladesh, Dhaka would not hold to instrumentality them backmost arsenic it has ne'er recognised immoderate DFN successful Assam arsenic a Bangladeshi citizen. This creates a precarious limbo for those detained who, arsenic the petitioners informed the bench, get pushed into a portion of statelessness.

Here, the honourable tribunal should person shown judicial tenacity and categorically identified them arsenic “stateless” radical who are successful request of ineligible protection. This would person allowed the seat to inquire the FTs to reappraisal their orders against specified radical arsenic good arsenic research ways to enactment them connected a suitable pathway to ineligible Indian citizenship. As it did successful 1996 successful the lawsuit of Chakmas refugees successful Arunachal Pradesh, the Supreme Court, arsenic the highest law tribunal successful the country, has a work to guarantee that nary idiosyncratic successful India remains stateless and thus, deprived of the close to person each different rights.

Instead, the seat adopted a slippery route. It asked the Indian authorities to find an due solution to woody with those whose citizenship remains undetermined, creating abstraction for much favoritism and marginalisation. Bizarrely, it adjacent suggested that those whose addresses (in Bangladesh) are unknown, beryllium deported to the superior city. Such a proposition goes against each customarily accepted norms of dealing with a stateless community. It besides creates unit connected the authorities to forcibly deport a radical of radical to an alien country.

The honourable Supreme Court indispensable travel its ain precedents and instrumentality a clear-eyed and rights-centric presumption of the citizenship contented successful Assam. It indispensable recognise that the bosom of the substance isn’t astir identifying and deporting a captious wide of “illegal foreigners” successful Assam, but astir exorcising a profoundly unjust, arbitrary and racially-biased strategy of citizenship determination that thrives connected creating “aliens” retired of bladed aerial and successful the process, wrecking the lives of immoderate of Assam’s poorest radical who person known nary different home. As the vanguard of India’s Constitution, that is the bare minimum that 1 expects of the Supreme Court.

The writer is simply a associated doctoral campaigner astatine the National University of Singapore and King’s College London