Posts Tagged ‘Detention camps’

Supreme Court remarks on illegal detention fly in face of India’s constitutional and international obligations: CHRI

May 5, 2019
Supreme Court of India. Photo The Hindu

Supreme Court of India. Image: The Hindu

New Delhi, May 1

The Supreme Court needs to reaffirm India’s constitutional and international obligations to rights on complex issues of nationality, detention and deportation and not be unmindful of its own commitment to these duties, the Commonwealth Human Rights Initiative (CHRI) has urged.

The following is the text of the statement, issued today, and signed by a group of eminent citizens including former Supreme Court Justice Madan Lokur, Wajahat Habibullah, CHRI’s Chair and former Chief Information Commissioner, Justice AP Shah, former Chief Justice of the Delhi High Court, and a number of senior former officials and civil society leaders:

As concerned citizens, we look to the Supreme Court to reaffirm India’s constitutional and international obligations to rights on sensitive issues.  That is why we are disappointed by recent statements by the Chief Justice of India on a complex matter relating to illegal detention and deportation, without heeding India’s own constitutional and international obligations.

While advocating greater detention of suspected ‘foreigners’, the Chief Justice brushed aside the Assam Chief Secretary with a stinging admonition for proposing a methodology for the release of a handful of foreign prisoners who had been in detention beyond their term of sentence for illegal entry. This was especially of concern for the case concerned the wilful violation of the human rights of hundreds of detainees who were languishing in what the court itself accepts are “inhuman conditions”.

We regard these remarks as unfortunate.

Article 21 is very clear in its intent, ambit and process. It binds all duty-holders and citizens with the ringing affirmation that no person in India (and we emphasize that there no special privileges here for Indian citizens) can be deprived of her/his right to life and liberty without due process.

NRC

NRC Official Logo

There is no deportation agreement with Bangladesh. International law lays down that such deportations can take place only with the consent of the country of origin. Bangladesh has consistently refused to accept that its citizens migrate in large numbers to India. Indeed, Bangladesh regards such unilateral efforts as harmful to a bilateral relationship that is critical for the security and stability of both countries and especially of our eastern region.

We cannot place ourselves in a situation where we are seen as forcing people out at gunpoint; it would be ethically unjust, wrong in law and draw international condemnation.

We are acutely sensitive to concerns in Assam and other parts of the North-east and across the country about the problem of illegal migration from Bangladesh, a long-standing issue that has defied official proclamations and pledges of “push back”, “deportation” and “detection”.

Whatever methods are used they must be undertaken within the rule of law frame, be just and fair and designed to minimise individual hardship and tragedy. We believe there is a need that this is a tragedy of growing intensity which is gathering momentum as a result of the current National Register of Citizens (NRC) exercise in Assam.

Accounts from Assam indicate that often arbitrariness not rule of law is used to define those who have come post-1971 from Bangladesh (of whatever religious denomination) and those who are Indian nationals.

NRC-FORMS, SABRANG INDIA

People submitting NRC applications, Photo: Sabrang India

Lakhs are in limbo and now fear that they may become “stateless” because of a process that is mired in a mix of complexity, confusion, lack of precision and prejudice.

Many of those at risk are from the bottom of the economic pyramid, unable to sustain the complex adjudication process needed to establish their citizenship. Large numbers are already in detention camps.

Although the Supreme Court mandated deadline for a ‘final’ list is July 2019, we understand that not less than 38 lakh persons out of the 40 lakh (four million) who had found themselves off the NRC last year have filed applications for inclusion.  Such a huge number of requests cannot be processed in two months and we urge that this not be hurried as the consequences are too devastating to contemplate. The efforts need to be steady and methodical so that the charges of arbitrariness, prejudice and poor record keeping, which have plagued the NRC process, do not stick.

It must be pointed out here that India is a signatory to the Universal Declaration of Human Rights in which its representatives played a stellar part in developing the language that all of us are familiar with in regard to equality, non-discrimination and gender.  Our international commitments are clear as to the rights of people affected in such situations.

It would also be unacceptable if any Indian of any religious denomination is harmed by negligence, wilful prejudice, wrongful confinement and prosecution.

Failure to address this critical situation adequately and justly would be seen internationally as a gross violation of human rights and a blot on India’s traditional record.  What is also of concern to us are social fault lines that could be exacerbated by insensitive handling that could leave many people desperate, particularly youth, with the potential of radicalization.

As concerned citizens, we appeal to the judicial system and the government to explore a solution that addresses the human dimension. The situation in Assam and inter alia other parts of the North-east represent unprecedented challenges and conditions that cannot be resolved by application of a routine legal framework which is designed to deal with individual cases.

Wajahat Habibullah, Chairperson, CHRI

Members:
Justice Madan Lokur

Justice AP Shah

Ms. Vineeta Rai (IAS, retd, former Revenue Secretary  to the Government of India)

Nitin Desai, former Under Secretary, United Nations)

Jacob Punnoose (IPS, retd)

Poonam Muttreja (Member, Executive Committee, CHRI)

Kamal Kumar (IPS, retd)

Ms. Maja Daruwala (Adviser, CHRI)

Jayanto N. Choudhury (IPS, retd)

Dr. BK Chandrashekar (ex MLC, Karnataka)

Sanjoy Hazarika (International Director)

——————————————————————————————————————The statement is a verbatim reproduction from CHRI website at http://www.humanrightsinitiative.org/press-releases/supreme-court-remarks-on-illegal-detention-fly-in-face-of-indias-constitutional-and-international-obligations-chri

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Assam: Creating a ‘state of exception’ in a space which itself is a ‘state of exception’ to the Indian state

March 24, 2018

Assam against itself: a reply to Sanjib Baruah

In response to Professor Sanjib Baruah‘s article ‘Stateless in Assam‘ which discussed a new focus on detention camps for ‘stateless citizens’, Suraj Gogoi, Gorky Chakraborty and Parag Jyoti Saikia reflect on the implications of reducing people to ‘bare life’.

The Concentration camps that came to the fore during the Holocaust, left a deep impact on human history. It showed us that hate can be nurtured to humiliate, torture, and reduce people to ‘bare life’. The concept of the ‘exception’ used by Hannah Arendt and Giorgio Agamben has been articulated in the context of Northeast India by Professor Bimol Akoijam, as to how the Indian state through the Armed Forces Special Power Act (AFSPA) inhumanely treats its own citizens and the whole region as a ‘different minority’. However, the manner in which Prof. Sanjib Baruah used this example in his article ‘Stateless in Assam’, in invoking the idea of camps sends chills down the spine, as he presents enforced settlements as normal human condition, a fate to be endured for some. His views on camps have been lauded by a number of caste Assamese intellectuals, amongst others. It has thus created a ‘state of exception’ in a space which itself is a ‘state of exception’ to the Indian state. This double exceptionality makes the lives of Hanif Khan, who killed himself over fears he was excluded from a list that identified ‘legitimate’ Assamese citizens, and a host of others extremely precarious.

Since Professor Baruah has invoked this idea of exception, let us in return, invoke the idea of love and solidarity. Martha Nussbaum notes that cultivating love instead of hate would make the world a better place to live in. The lack of love, in the public and in our emotions, should be an area of great concern. Hanif Khan and his family needed love and solidarity, not a reminder of Arendt’s work, which indeed became a mockery of his life. Such an injunction creates what W.E.B. Du Bois called ‘twoness’ or even a stranger. It is the worst form of alienation where you see yourself through the eyes of the other. Being poor is hard, but to be despised by the society, the state, and its institutions estranges an individual in everyday life. Becoming a ‘problem’ is a ‘strange experience’ itself, no one needs to reiterate the point that one is a stranger. Such things only amplify the distance and distinction. What does such a position from a senior writer on the Northeast inform us?

Hanif Khan

Hanif Khan. Photo (C) The Gaurdian

Professor Baruah’s article also misses out on certain fundamental issues associated with National Register of Citizens (NRC). The idea of an ‘original inhabitants’ state in NRC is contrary to equal citizenship, as arbitrariness and suspicion loom large around the identification process. The legacy data of 1951 and 1971 was taken as the basis on which the citizenship of the people living in Assam was to be determined. However, there was hardly any question raised about these legacy documents, since they were considered sacrosanct. The legacy documents were no census documents. Rather, they were rough notes books of census enumerators which lack official validity.

NRC is using majoritarianism in the worst possible manner. It misuses law in making minorities stateless. As a form of identification, non-inclusion reduces an individual to a lesser human being. Deportation is perhaps a bilateral issue, while death isn’t. A matter of life and death, fear and pain, should not be an issue of ‘business’ and ‘watching’.  His position ignores the reduction of people’s lives to a mere piece of document, the resultant alienation and social pain. His belief placed on public officials to ensure ‘accuracy’, leaves no space to question the process of preparing NRC. An argument such as this is surprising, since, for many students of our generation who became interested in studying the Northeast, his India against Itself taught us to question the state in the Northeast. It presented the rhetoric of state making, mired in violence. However, the rhetoric of suicide and a text on Holocaust is the last thing one should compare, particularly when it lacks sensitivity and love, which was evident the manner in which Professor Baruah ended his article.

Youngest son of late Hanif Khan, his mother in law and Raksha Khan (from left) by Taniya Laskar

Son, mother in law and wife of Hanif Khan. Photo: BHRPC

Professor Baruah’s assertion also suffers from taking a linear view of a very complex bureaucratic and social process. In this light, sharing an account written by Dr. Debarshi Das, a faculty in IIT Guwahati, of his own family.

My aunt Putul was born in Pandu in 1950s. Her parents came to Assam as East-Bengali migrants. She got married to a muffasil town and after her marriage, her name no more remained the same. In her in-laws family there were two other people with the same name, Putul and following from this her name was changed from Putul Guha to Kabita Das. In 2016, when police came to enquire about the citizenship status, they noticed the differences in her pre- and post-nuptial documents. Without any delay she was sent to detention camp at the age of sixty”.

One of the first proponents of detention or concentration camps in the context of Northeast was S.K.Sinha. One can read his letter to the President of India dated 8th of November 1998. His sentiments echoed a large group of ethno-nationalist that identified a common enemy in Assam—the Bangladeshi. Upamanyu Hazarika, a Supreme Court lawyer and convener of the Prabajan Virodhi Manch, is another leading voice in this thread of safeguarding the son of the soil by creating imagined victimhood which suppresses the actual victims as Prof. Prasenjit Biswas argues. Even Hiren Gohain voiced his agreement to the NRC and speaks of ‘legitimacy’ of citizenship. Hence, what we also wished to highlight through this reply is that Prof. Sanjib Baruah’s lack of a moral position is not an aberration, as we all know that even Hiren Gohain sympathises with the legitimate objective of the Assam movement, but not its method. They are just echoing sentimentalities that carry possibilities of violence, othering, and mob lynching. Will there be ever any room for human security or it’s a linear pre-determined march towards a state and thereafter region (NEI) consisting of a number of concentration camps by different names?

To conclude, we want to reiterate what Professor Ashis Nandy argued about the master-slave dialectic. One should stand with the marginalised or the slave, not because suffering is a superior experience or for they work or are oppressed, but because the slave represents a higher order cognition who treats the master as ‘human’, as opposed to the master who treats the slave as a ‘thing’. Arguing for camps is to become players in moral and cognitive ventures of oppression, or at the very least, a passive complicit.

This article is reproduced from The London School of Economics and Political Science’s South Asia blog in public interest.

About the Authors

Suraj Gogoi is a doctoral student in Sociology, National University of Singapore.

Gorky Chakraborty is a faculty member of Institute of Development Studies Kolkata (IDSK).

Parag Jyoti Saikia teaches at Asian University for Women, Chittagong.