India Fails to Protect Human Rights While Deporting Foreign Nationals

Taking serious note of the failure of the government machinery to detect and deport illegal Bangladeshi migrants from Assam even after determination of their citizenship status through the legal process, the Gauhati High Court has asked the State and Union governments to clarify how such cases should be dealt with.

“The Union and State governments in respective Home departments are directed to clarify in case of failure to deport the declared foreign nationals to their country of origin, how their cases will be dealt with. The authorities in the State and the Union Government shall bear in mind that more than 40 years have gone by since the cut-off date, i.e., 25.3.1971 was fixed for detection and deportation of foreign national (illegal Bangladeshi migrants),”Justice B K Sharma said in his order in connection with cases WP (C) No. 4601/2011 and WP (C) No. 642/2009. This is reported in the Assam Tribune on 19 June 2012.

It is true that the attitude of both the governments is indifferent to the problems of deportation of the illegal immigrants living in Assam. The indifference and insensitivity has led to a situation where laws and rules governing the process are vague, inadequate and inefficacious. It, in turn, has created a de facto and de jure regime which coupled with the prejudices of the implementing officials facilitates witch-hunting of people belonging to a particular linguistic community living for centuries in Assam while failing to detect any actual foreign national and deport her/him legally to the country of her/his origin.

The processes of detection, detention and deportation of ‘foreign nationals’ being applied in Assam not only violate international law and human rights of the suspects but also threaten about 2 million people with being rendered stateless. This is due to many factors including the presumption that anyone in the state who speak the Bengali language and belong to the poorer strata are an enemy aliens and a member of the troops of cultural aggression of Assam by Bangladesh. They do not deserve any rights and can be rightfully deprived of their human rights.

The detection is being done by state government officials acting as election officers under the election commission of India and state police. In practice they do not follow any rules and based on information received from some non-official local persons, who work as personal informers to them, the election officials mark name of the concerned person with D (standing for doubtful) and/or police officers make reference to the foreigner’s tribunals. In both cases the concerned person is not informed and given an opportunity of being heard. Community leaders and rights activists say in most of the cases allegations are made against the concerned person to settle personal scores. According to them, this is the reasons for as low conviction rates as only 6% in such cases so far. Marking D in name of a voter suspends his all citizenship rights for indefinite time and now about 200 thousand names in the electoral rolls are marked with D in the state.

Many people are detained in camps maintained for the purpose in inhuman condition after their name is marked with D in the voters list or a reference is made to the tribunal for the period of pendency of the trial which is indefinite in violations of Article 21 of the Constitution of India which says that no person shall be deprived of his life and personal liberty except in accordance with procedure established by law. The procedure of tagging names with D is nowhere established by law and arbitrarily making reference also contravenes due process principle.

The foreigner’s tribunal’s works under the Foreigners Act, 1946 and this law, in a fundamental departure from liberal jurisprudence, reverses the burden of proof (Sec. 9) and places the onus upon the person concerned to prove his citizenship. It thus replaces the cardinal judicial principle of presumption of innocence. Moreover, in many cases the tribunals do not even hear the accused and pass ex-parte orders declaring him a foreigner. It happens mostly in cases where the accused do not receive notice issued by the tribunal or cannot hire a lawyer to represent him owing to his homelessness or indigent condition, as the case may be. There is also no provision for appeal in the Act.

The process of deportation also violates international law relating to human rights and diplomatic protocols. It is described as follows: “When the people are forced across the border, all their possessions are taken away, along with any signs that may point to their Indian origin. They are warned that if they turn back, they will be shot as infiltrators. As parting advice, they are also cautioned to tell the Bangladeshi Rifles, if they are caught across the border that they are returning from some work or wedding from a particular village. Thus poor people, deliberately bereft of identity and citizenship, have no option but to again take the path of illegality merely in order to survive.” Diplomatic protocols (under the Vienna Convention on Diplomatic Relations, 1961) require that when deportation takes place the embassy or high commission or any other representative of the state of the country of origin of the deportee be informed about the decision. This is never done in cases of deportation of supposed Bangladeshis. The extra-legal process followed by India effectively renders the people involved stateless and violates Article 15 of the Universal Declaration of Human Rights, 1948 (UDHR), particularly clause 2 which says: no one shall be arbitrarily deprived of his nationality …

One is not against detection and deportation of foreigners from Assam and India. On the contrary one believes in the right to return of all persons who are foreign nationals living as refugees or immigrants (legal or illegal). The concern is over the processes employed. As these processes are not in conformity with the due process principle and international human rights standards they provide tools to harass genuine citizens on one hand and on the other hand, violations of basic human rights of all persons involved.

Attitude of both the central and state governments is indifferent to both the questions of deportation and deportation under due process and approach of the judiciary is also deplorable as the utterances they make time and again seem to be insensitive to the principles of liberal jurisprudence and human rights. For a permanent solution of the problem the approach must change.