Posts Tagged ‘Foreigners’

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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BHRPC representation to JPC on the Citizenship (Amendment) Bill, 2016

May 10, 2018

Barak Human Rights Protection Committee (BHRPC) submitted its views and suggestions on the proposed bill to amend the Citizenship Act, 1955 to the Joint Parliamentary Committee on the Citizenship (Amendment) Bill, 2016 on 9 May 2018 at camp at National Institute of Technology, Silchar in Cachar, Assam. The representation supporting the object sought to be achieved by the bill argued that the language employed defeats that very object and renders the bill violative of the constitution of India as well as international human rights laws as expressed through different United Nations negotiated multinational treaties.

The text of the representation:

To

The Hon’ble Chairperson Sri Rajendra Agrawal and his companion Hon’ble members of the Joint Parliamentary Committee on Bill to amend the Citizenship Act, 1955

At Camp at NIT, Silchar

Cachar, Assam

Subject: Recommendations for amendment of the Citizenship Act, 1955 vis-à-vis the Citizenship (Amendment) Bill, 2016.

Hon’ble sir,

Barak Human Rights Protection Committee (BHRPC) expresses heartfelt gratitude for your visit to Silchar and particularly for holding this consultation with the people of Barak valley who are facing threats to their citizenship

BHRPC is a human rights group that endeavours to generate awareness of human rights among  all  stakeholders,  monitors  and  documents  cases  of  violations including cases of decitizenisation. Geographically  its  works  mainly  focus on  the  southern  part of  the  state  of  Assam  comprised of the districts of Cachar, Karimganj and Hailakandi. However, this self-funded voluntary group of human rights defenders also does its best to address cases of violation happening elsewhere in the state.

BHRPC presents its views and recommendations on the Citizenship (Amendment) Bill, 2016 on behalf of the people of Assam from the human rights point of view as follows:

  1. The statement of objects and reasons attached to the abovementioned bill states that “under the  existing  provisions  of  the  Act,  persons  belonging  to  the  minority communities, such as Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have either entered into India without valid travel documents or the validity of their documents have expired are regarded as illegal migrants and hence ineligible to apply for Indian citizenship. It is proposed to make them eligible for applying for Indian citizenship.” Though it is not stated expressly in the bill, the underlying reason for making the abovementioned persons eligible for Indian citizenship is understood to be their victimization in sectarian violence in their countries.

  1. Of course, it is a humanitarian response to the suffering, the members of vulnerable groups of people in India’s neighbouring countries are made subject to, worthy of the largest democracy in the world. It is informed by Indian constitutional ideals of humanitarianism and respect to human rights as well as India’s legal and moral obligations under the international humanitarian and human rights laws.

  1. The modern international law relating to the issue at hand is based on Article 14 of the Universal Declaration of Human Rights, 1948 that reads, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” This has been elaborated in several international conventions including the Convention relating to the Status of Refugees, 1951 and its 1967 Protocol[1].

  1. The international laws relating to the issue also find place in the Convention relating to the Status of Stateless Persons, 1954 and the Convention on the Reduction of Statelessness, 1961.

  1. The honoured principle of non-refoulement is also reiterated in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[2].

  1. BHRPC is aware that India is not a party to the international conventions mentioned above. However, these are the documents containing laws of the civilized nations regarding the issue under consideration[3]. India, therefore, should ratify these conventions and frame a uniform immigration policy in conformity with the norms promulgated there.

  1. Coming to the bill under consideration, the clause 2 fails to live up to the principle of international law and also runs afoul to the cardinal constitutional principle of secularism that forms the basic structure[4] and principle of equality of treatment as enshrined in Article 14 by naming certain religious demonination while excluding others by implication. The bill also does not mention that the persons to be made eligible for citizenship should come in India owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion as provided in the Convention relating to the Status of Refugees, 1951 as amended its 1967 Protocol. In fact, the bill does not provide any basis for according them citizenship other than their being member of the named religious groups, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians. Thus it excludes other minorities who are often persecuted in the neighbouring countries such as Shias, Ahmadias, Atheists, Sexual minorities, political dissenters etc. and Muslims in Myanmar[5]. The classification has no reasonable basis and there is no nexus between the object sought to be achieved and the legislation. Therefore, the bill is in its present form unconstitutional as it is hit by Article 14[6].

  1. The wording of the clause goes against the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 to which India is a State Party. Article 1 of the Convention defines the term “racial discrimination” to mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. The bill excludes people who otherwise should be included on the basis of religious and ethnic identity.

  1. To save the bill from unconstitutionality and to bring it in line with India’s obligation under international human rights law, the clause should provide that any person who comes to India from any neighbouring country for being victimized in sectarian violence or for fear of such victimization irrespective of their religions shall not be treated as illegal migrants.

  1. The immediate trigger for presenting the bill came, it is understood, from fear of decitizenisation of people belonging to linguistic minorities, though the bill does not address this issue directly. This needs to be addressed to prevent gross violation of human rights of a large section of people belonging to a number of ethnic/linguistic groups including Bengalis and Nepalis. The threat comes from the arbitrary procedure of updating the National Register of Citizens (NRC).

  1. The NRC rules[7] provides that only the name of person whose name appear in any of the electoral rolls prior to the year 1971, or in National Register of Citizens, 1951 and descendants of the persons mentioned above should be entered in the updated NRC.

  1. This rule is in breach of sub-section 7 of section 6A of the Citizenship Act, 1955.[8]

  1. According to the Representation of Peoples Act[9], 1950 as interpreted by the Supreme Court[10] those whose names are there in a final electoral roll must be presumed to be entered after due scrutiny giving rise to a presumption of their citizenship.

  1. The NRC updation rules referred to above is also in breach of this law as laid down by the apex court of the land.

  1. Moreover, the said illegal procedure certainly falls under the rubric of arbitrary procedure within the meaning of Article 14 of the Constitution of India.

  1. The basis of modern international law regarding right to a nationality is enshrined in Article 15 of the Universal Declaration of Human Rights, 1948 that provides that everyone has the right to a nationality and no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

  1. It is, therefore, necessary to add a subsection to section 6A clearly providing that the person whose names appear in any electoral roll as voters shall be presumed to be citizen of India.

  1. BHRPC, therefore, recommends to the JPC that the bill should be re-written in the following terms:

  1. In subsection (1) of section 2 of the Citizenship Act, 1955 (hereinafter referred to as the Act), the following proviso shall be inserted after clause (b), namely:

“Provided that persons who migrated to India from the neighbouring countries, namely, Afganistan, Pakistan, Nepal, Bhutan, Srilanka, Bangladesh and Myanmar for being victimized in sectarian violence or for fear of such victimization irrespective of their religions shall not be treated as illegal migrants for the purposes of this Act.”

  1. In the Act, in section 6A, after sub-section 7 the following subsection shall be inserted, namely:

“7A:  The person whose name appears in any electoral roll as voters shall be presumed to be citizen of India.”

  1. In clause 3 in the Third Schedule of the Act, the following proviso shall be inserted, namely:

“Provided that for the persons mentioned in proviso to clause (b) of subsection (1) of section 2, the aggregate period of residence or service of a Government in India as required under this clause shall be read as “not less than six months” in place of “not less than eleven years”.”

Clause 3 of the bill may be retained verbatim.

  1. BHRPC further recommends that:

  • India should ratify the Convention Relating to the Status of Refugees, 1952 and its protocol, namely, Protocol Relating to the Status of Refugees, 1967.

  • India should ratify the UN Convention relating to the Status of Stateless Persons, 1954 and the UN Convention on the Reduction of Statelessness, 1961.

  • India should ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
  • India should formulate a uniform immigration policy in line with the above international treaties.

  • India should take proper actions in appropriate international forums on cases of atrocities on minorities and vulnerable groups and gross violations of their human rights happening in neighbouring countries.

 

Looking forward to a report from your end that incorporates the above recommendations leading to a non-discriminatory law according citizenship of persons migrated to India from neighbouring countries owing to persecution for their identity or belief or views, or for fear of such persecution and protecting citizenship of genuine Indian citizens.

 

With warm regards

Taniya Sultana Laskar

Secretary General,

Barak Human Rights Protection Committee

Silchar, Assam


[1]  Article 1 of the Convention, as amended by the 1967 Protocol, defines a refugee as this:  “A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”

[2] Article 3 of the Convention provides that no State shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

[3] India is a signatory to the Universal Declaration of Human Rights and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4]  Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 and S.R. Bommai v. Union of India, AIR 1994 SC 1918 and several other judgments of the Supreme Court.

[5] Whereas the situation of Rohingya Muslims in Myanmar is described by the United Nations as facing the risk of ethnic cleansing, see https://www.theguardian.com/world/2017/sep/05/more-than-120000-rohingya-flee-myanmar-violence-un-says

[6] State of Madras v. V. G. Row 1952 AIR 196

[7] Sub-clause (a) and (b) of clause 2 of the Schedule framed under Rule 4A (4) of the Citizenship (Registration of Citizens and Issue of Identity Cards) Rule 2003 titled Special Provisions as to Manner of Preparation of National Register of Citizens in the State of Assam.

[8] Sub-section 7 of section 6A of the Citizenship Act, 1955 provides that who were citizens of India before 1985 are exempted from the operation of section 6A that enacts the rule about 1966 and 1971.

[9] Section 16 of the Representation of People Act, 1950 provides for disqualification for registration in an electoral roll and it it includes not being a citizen of India meaning that those whose names are there in a final electoral roll are found to be citizens after due scrutiny as prescribed by law.

[10] Lal Babu Hussein & Others v. Electrol Registration Officer  and Others 1995 AIR 1189

Assam: How the National Register of Citizens (NRC) has become the source of distress and even suicide for some people

April 30, 2018

Insiders, Outsiders and Improper Legalese: Test of Citizenship and ‘Foreigners’ in Assam

January 18, 2018

Prasenjit Biswas

A large number of Indian citizens who voted and elected governments in Assam as well as the central legislature are subjected to a process of verification of their citizenship documents. Now after verification, if a large number is rendered disenfranchised and stateless, the legal implication is that peoples’ representatives who are elected are elected by illegal electorate. So natural justice demands that these elected representatives cannot hold offices legitimately in case the electorate is found to be ‘foreigners’ and not citizens of India! 

nrc

NRC Logo

The first draft of National Registrar of Citizens (NRC) published in the midnight of 1st January, 2018 created more confusions than it resolved. It generated a discourse of Othering and exposed the exceptionalist and exemptional nature of the law-making in the context of Assam. The Citizenship Amendment Rules, 2003 concerning registration of citizens and issuance of identity cards under section 18 of the Citizenship Act, 1955 created an exception in case of Assam by adding a Schedule 4A under which updation of 1951 National Register of Citizens is presently carried out. No other state of the country follows rules laid out in Schedule 4A except Assam. The first draft of updation is now published that called for serious reflection on this whole legal process conducted under the supervision of two-judges bench led by Justice Ranjan Gogoi of the Supreme Court of India.

These special provisions inserted at various stages to the mother Act of 1955 on the ground leads to ‘profiling’ of people in terms of their religious and linguistic identities. Such profiling has a political angle. People who came to Assam until March 24th, 1971 due to referendum and partition of Assam as also due to separation of certain territories such as Khasi and Jaintia hills, Mizo hills etc. from Assam are somehow either accommodated or they have to prove their citizenship once again. Overall, the special provisions Schedule 4A are based on assumptions like ‘original inhabitants’ of Assam, which smacks of an unfounded category within the very idea of citizenship. The nondiscriminatory and equality based notions of citizenship enshrined in the Constitution of India of citizenship of “persons” as enshrined under fundamental rights and the rules framed in 2003 do not quite gel with each other. Special proviso 4A further undermines persons belonging to linguistic and religious minorities, as they are subjected to suspicion and arbitrary process of proving their citizenship by twisting basic presuppositions and principles of “equality before law” that have guided framing of the Indian Constitution.

People waiting to check their names in first draft of NRC publish on 31st December 2017

People waiting to check their names in first draft of NRC publish on 31st December 2017 (Photo: thehindiu.com)

Especially the procedure for verification of documents under the overall execution of the NRC coordinator seems to be a difficult procedure. The documents are sent to issuing authority for verification. There are interesting legal issues here- for how many years an issuing authority is supposed to preserve a copy of the original document issued by them to a client  and whether the issuing authority is legally obligated to re-verify a document at the call of another office such as NRC department. Without taking into account these issues, documents are sent to the issuing authorities. The outcome is that large amount of documents remained unverified and the reason given is that records are not available and manpower for verification exercise too is not readily available with various State and Central governments. Now those whose records remain unverified, they will be subjected to arbitrary administrative hassles, especially when various ethnic bodies are suspect and target those who minority groups as “Bangaladeshis” and who are going to be excluded from updated list.

This is a slippery slope situation that makes the circumstances very grave and punishing for no fault of the victims of this systemic exclusion. It is assumed that those names that are not included are not genuine Indian citizens and god forbid, any genuine Indian citizens excluded due to this cumbersome verification process will have to struggle a long way to get back the status of being a citizen. Such cases will be referred to Foreigners’ Tribunal and after a cumbersome legal process one may be able to get a legal redress. Now politicians take hold of the slippery situation. They have started asserting that no genuine Indian citizen will be excluded without addressing the issue of procedure. That the applicant remains as the possible sufferer at the other end of this process of verification is no one’s concern. Instead, Assam’s former Chief Minister Tarun Gogoi said indigenous people won’t have to bother about such a situation, meaning non-indigenous religious and linguistic minorities only will have to be concerned if they face any such exclusion from updation. Another much celebrated democratic voice from Assam Akhil Gogoi has asserted in Delhi that two crores of Bangladeshis have to be deported from Assam. Noted intellectual Homen Borgohain asserted that certain parts of Assam such a Barak valley, Dhubri and lower Assam have only been parts of Assam’s geography but never a part of History. This is how linguistic and cultural and religious minorities are purged from imagination of Assam in which NRC process adds to the existential fear and agony of being reduced to rightless noncitizen. Recent assertion by Assam Chief Minister that those whose names will not figure in updated NRC, their fundamental rights will be taken away and they will be given only the right to food, shelter and life magnified this existential fear among those who are Indian citizens and whose names may not figure due to an inefficient procedure.

What Homen Borgohain has argued opens up a Pandora’s box. His concern is that it is because of the Bengali speakers of Barak valley and certain other lower Assam areas that Assamese is rendered as the language of minority in Assam. So he argued that Barak valley should be separated from Assam to regain “only the Brahmaputra valley as the land of Axomiya speakers”. It is widely believed in this context that the targets for disenfranchisement and de-citizenization are linguistic and religious minorities whose fears are compounded by a long drawn process of verification without stating any reason why certain documents are found incorrect or kept pending. Much needed transparency and statement of proper reasons for pendency to applicants who assume themselves to be genuine Indian citizens is not shown much respect. Rather the process resorted to arbitrarily drawn procedures by the Executive which are unfriendly and not supported by existing legal framework.

The larger point is that large number of Indian citizens who voted and elected governments in Assam as well as to the central legislature are subjected to this process of verification. Now after verification, a large number is rendered disenfranchised and stateless, the legal implication is that peoples’ representative who are elected are elected by illegal electorate. So natural justice demands that these elected representatives cannot hold offices legitimately in case the electorate is found to be ‘foreigners’ and not citizen of India! While the State NRC coordinator stated before the Supreme Court that in the first draft, the office has verified 2.38 crores cases of roughly 3.40 crores applicants, the draft incorporated only 1. 9 crores of people, keeping out 1.4 crores. This indicates as if a large section within this left over people may prove to be ‘foreigners’ and later they are to be rendered stateless. Before the second draft of the NRC, the coordinator stated that children who are born after 2003, their names will be included provided both their parents’ names and not one of them find a place in the NRC. The basic principle that those who are born in India will be Indian citizens is in the way of getting amended in an extra-legal manner by the Executive. This is legally implausible as the bottomline condition for children to be an Indian citizen is that one of the parents is Indian and the other is not an illegal migrant. A large number of post-2003 children now face this new conundrum. In the first draft, those whose names are part of “legacy data”, available right in the NRC database are excluded, citing that their verification is pending. No one is able to understand how the verification is conducted. Updates in the forms of press statements are yet to be substantiated by disclosure of full information to the applicant in the website.

The situation created its ripple effect in Bengal with Mamata Banerjee pronouncing that Bengal will give shelter to people who would suffer due to such a cumbersome process. She created storm in the tea cup by her repeated pronouncements to this effect. Political opinion in Assam got sharply divided on her protestation.

Overall, the situation needs able handling and skillful mediation to complete the NRC process in a just and fair manner.


Prasenjit Biswas chairs Barak Human Rights’ Protection Committee and is a political analyst.

A version of article was published in The Statesman under the title of “Insiders, Outsiders and Improper Legalese on 15 January 2018.

Assam NRC process drives citizens to death: Case of Hanif Khan

January 15, 2018

This new year a sad news has shaken the people of Barak Valley, the southern part of North East Indian state of Assam comprising of Cachar, Karimganj and Hailakandi districts. Mr Hanif Khan, young man of about 37 years of age, committed suicide hours after first part of the draft of National Register of Citizens (NRC), which is in the process of being updated in Assam was published at midnight on 31 December 2017. The draft did not have his name as he feared. He was terrified that he lost his citizenship and as a result he would be sent to jail and would be subjected to torture and other cruel and inhuman treatment.  All the local vernacular media as well as a section of the national media reported the incident. There is an atmosphere of fear and terror.

After learning from the media reports, Barak Human Rights Protection Committee (BHRPC) decided to visit the family and gather first hand information of the incident and accordingly a team led by Dr Prasenjit Biswas  and comprised of Mr Oliullah Laskar, Mr Raju Barbhuiya and Ms Taniya Laskar went to late Mr. Hanif Khan’s house on 6 January 2018. The team talked with the wife of the deceased, their children, other family members and neighbors and gathered information as follows:

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

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

Mr Hanif Khan was a man of about 37 years. Neighbors said he was law abiding citizen and very mild and gentle in his manners. He had in his family his wife Ms Ruksa Khan, their three sons and a foster daughter. He used to serve as a hired driver to a family.

The illegal immigration issue has been a long standing, vexatious and a burning political issue in Assam for several decades. In 1983 near about 3000 people were massacred in Nellie area of present day Morigaon district. In the following three decades the people of Assam have come across many shifts in the political as well as social paradigms. Recently after Supreme Court’s directions, almost all the political parties and pressure groups agreed upon a correct and error-free NRC. But the process followed by the government to publish the same made most of the common people concerned. The modalities prescribed by the authorities required the citizens to submit a prescribed application form with specified documents issued before 1971 showing their or their ancestors’ citizenship and having link with the said ancestors in case the applicants did not have the pre 1971 documents due to being born later.

Later the modalities got modified and a family tree was required to be submitted by the applicants. Family tree was a documentation of the extended family giving names of all cousins and their family members. The authorities again sought to change the rules and declared that certificate issued by Panchayat (local civic body) secretaries as earlier prescribed would not considered valid. However, the intervention of the Supreme Court retained the validity of such certificates. The admissibility of the pre 1971 documents submitted as proof of citizenship and/or link documents were made subject to the verification of the records of the issuing authorities. The authorities would also conduct physical verification of the applicant citizens and their families in many cases. This made the people, irrespective of ethnicity and religious identity, enraged. People came out in the street and held protests in many places all over the state. Questions were raised as to how the authorities got the power to ask the citizens to prove their citizenship by producing documents. In a petition the Supreme Court directed the authorities to exempt the “original inhabitants” of the state from this rigorous test of citizenship. But the term was nowhere defined and no criteria were given to determine the originality of inhabitation. This created deep apprehension of racial discrimination and arbitrary procedure of updation of NRC among the people of Barak valley.

There has always been a perception among the people of Barak valley that they have been being discriminated by the linguistically aggressive politics of Brahmaputra valley of the state. In 1960 a bill was passed by the Assam state legislature making the Assamese language as the official language of the entire state of Assam including Barak valley. People came out in protest in unprecedented large numbers. During those protests, 11 people were killed in Silchar Railway Station on 19 May 1961. The government was forced to amend the bill and to make Bengali the official language for Barak valley. Ever since the 11 martyrs have been revered by the people and the 19th May observed as Language Martyrs Day in Barak valley every year. This perception of discrimination has again been reinforced by the supply of a Bengali application form with clearly visible Assamese linguistic influence.

There is also another phenomenon known as D-voters. Citizens’ names are arbitrarily tagged with D (dubious or doubtful) in electoral rolls. Their cases are referred to the Foreigners’ Tribunal. In Tribunal such a person has to prove his citizenship. The burden of proof is put on the suspect. In many cases the Tribunals declare such people foreigners based on minor discrepancy and spelling errors in the names of ancestors or the suspect, as the case may be, in pre-1966 documents. Moreover, in many cases notice are not served properly and the tribunals pass decision ex parte. Most of the people don’t have wherewithal to take recourse to higher courts. After the declaration as a foreigner by the Tribunal, police pick the persons up and put them in detention camps which are in fact regular jails. In the absence of a deportation treaty with Bangladesh or any other supposed country of nationality of the persons concerned, they are kept in jails with other convicted criminals for indefinite period. The reports of such midnight knocks are regularly published in newspapers.

Though it is not yet clear what will be the policy for the people whose names are not included in final NRC, to people it is a question between whether they would be sent to the dreaded detention camps directly or through tribunals.

The resultant apprehension of discrimination and fear of losing citizenship that gripped the people of Barak valley also got to Mr Hanif Khan. He was in a constant fear of losing his citizenship. Moreover, in Assam, there are incessant reports in newspapers related to arrest and detention of person belonging to the lower income-strata by the police, after the Foreigners’ Tribunals declare them as the foreigner. Moreover, recently nearly 45000 police personals and 50 army troops were deployed in different “sensitive areas” of the state. This was in addition to fact that the area was declared as part of “disturbed area” under the Armed Forces (Special Power) Act, 1958. This draconian law empowers even the non-commissioned members of the armed forces to use force even to the extent of killing against anyone who is suspected to have breached or about to breach law and order. The Act also bars the court to take cognizance of any case against the armed forces without sanction from the government of India. All this went to create an environment of reign of terror and an eerie silence among the people. Mr Hanif Khan got more terrified that pushed him to take such an irreversible step to end his life.

Mr Hanif Khan submitted NRC application in due time. A copy of the application is with the BHRPC. The application appears to be according to the prescribed rules. He established his citizenship with the prescribed documents beyond doubt. He claimed the inclusion of his and his family members’ name in the  NRC on the basis of voters list of 1971. He had shown his linkage with his father late Mr. Raj Mohammad Khan and mother late Ms Sahera Khan through voter list of 1971. He submitted the school  certificates of the children to establish linkage with himself. His wife Ruksa Khan’s inclusion is claimed on the basis of linkage with her parents Mr. Rahim Khan and Afushi Bibi through the same voter list of 1971.

Ms Ruksa Khan told the BHRPC team that since the time the verification process of NRC began Mr Hanif Khan was in a constant fear of police torture in case he loses his citizenship. As day of the publication of the first of draft NRC neared, he often hid himself if any police van passed through the high way near his house. Three months ago when he was still in his job he went to a place around 15 kilometres away from his house known as Udharbond. There he found an army vehicle behind his vehicle and he started running instantly and came to his house crossing 15 kilometres of distance right on his foot. Learning this, his employer released him temporarily from his service. Since then he stayed in his house and watched televisions for news and read newspapers and otherwise also tried to collect information about the NRC updation process. He would go on asking everyone about the rules and modalities of NRC and consequences of non-inclusion of his name. He was very concerned about the minor discrepancy regarding his age in one of the voters-list. The neighbours tried to allay his fears by telling him what they knew. But that did not seem to have assured him. His wife tried to take him to the doctor but he didn’t agree. She then asked help of the neighbours and had planned to take him to the hospital forcibly if necessary. But before that he went on missing since 7 pm on Sunday, 31st December 2017 the day when the draft NRC was going to be published. Ms. Raksha Khan stated that at irst she thought he came to watch news on tv but when he did not come back after midnight she started to search for him and was unable to find him thourghout the night. She first saw the body around 6.50 am next morning. Police officials reached the spot around 8.30 am and sent the body to Silchar Medical College and Hospital for post-mortem.

According to Mr Toibur Rehman, one of the neighbour present there, Hanif Khan was perfectly healthy and a well- mannered man. And never had any serious quarrel with anyone. But since the NRC updation process began he appeared to be very worried about it. He also added that another person in the locality namely Mr. Nur Jamal Laskar was also showing similar symptoms and he was under treatment and in strict care of the neighbours. Mr Tapu Das one of the member of the local Panchayat also confirmed the same information. On being asked he said that the NRC process is totally carried on by the Seva Kendras and local Panchayat was never involved in it and he was never informed about the modalities or any other thing. The Panchayat only carries out the duty of issuing Gaon Panchayat Certificates to those who apply for it.

It is to be noted here that this is not the only incident of NRC related suicide. Before that on 6 December 2017, a man aged about 56 years named Mr Akram Uddin Barbhuiya of New Ramnagar area in Cachar district  ended his life by hanging himself on the ceiling of his own room. He was also reported to have been worried over inclusion of his name in the updated NRC. .According to his family members he also went on asking everyone about the procedure adopted in updating NRC and NRC related documents were laying in the floor of the room where he hanged himself. Even two days before that, on 3 December 2017, another man Mr Anwar Hussain, a resident of Bahmura, of Goalpara district also committed suicide for the same reaon under the similar circumstances. According to newspapers reports, Anwar Hussain’s daughter Jahabnara Khatun was served with a notice for verification of the documents submitted for inclusion of her name in theNRC. Following that notice he was much tensed and in a constant fear that his daughter’s citizenship could be taken away.

The BHRPC believes that Mr.Hanif Khan was a victim of a clumsy, erroneous and arbitrary procedure of updation of NRC adopted by the state couple with the xenophobic rhetoric of politicians including members of the council of ministers. The state machinery failed to take the citizens in confidence that they are not going to be discriminated or not going to be victims of any kind of arbitrariness.

BHRPC filed a complaint at the National Human Rights Commission praying for:

  1. An interim compensation to the next of kin of the deceased pending the disposal of the case.
  1. A compensation of Rs. 10 lakh  to the next of kin of the deceased.
  1. and for conducting a study of the procedure of updation of NRC in Assam and to make recommendations so that human rights of the people are not violated in the process.

For further details, please contact:

Taniya Laskar, Secretary General, Barak Human Rights Protection Committee (BHRPC)

Silchar, Assam. Email: bhrpc.ne@gmail.com, Mobile:+919401616763