Death by Paperwork: Determination of Citizenship and Detention of Alleged Foreigners in Assam

Abstract

In late 2019, worldwide attention turned to India as masses mobilized across the country to protest an amendment to India’s citizenship laws that was criticized for discriminating against Muslims. Lesser known, however, is that another process to determine Indian citizenship that had been underway for decades in the northeastern state of Assam had gained steam in recent years. Assam, which shares a 263-kilometer (163-mile) border with Bangladesh, has long been a site of fuid cross-border migration and ethnic tensions. The greatest surge of migration into Assam occurred in 1971 when over 10 million refugees fed modern-day Bangladesh to escape its war for independence from Pakistan. In the decades after the 1947 Partition, Assamese leaders who rejected the changing ethnic composition of the state stoked a popular movement aimed at detecting, disenfranchising, and deporting “foreigners” from Assam. Following years of violent unrest, the Government of Assam and the All Assam Students Union (AASU) reached an agreement with the Indian government in 1985 to provide amnesty to anyone who had arrived in Assam before March 24, 1971. While anyone born in India prior to 1987 was granted Indian citizenship, those born in India after 1987 could receive citizenship by birth only if at least one parent was an Indian citizen. On August 31, 2019, upon mandate by the Supreme Court of India, Assam published the National Register of Citizens (NRC), which is a list of people residing in Assam who have been deemed Indian citizens. But the NRC excluded over 1.9 million people, many of whom likely satisfy the requirements of Indian citizenship. To be included in the NRC, all residents of Assam were required to submit documentary evidence of “legacy” showing that they or their ancestors lived in Assam before March 24, 1971. Persons who were excluded from the NRC can appear before quasi-courts known as Foreigners Tribunals (FTs) to contest their adverse citizenship determination. To be successful, however, they must provide significant and often cumbersome paperwork and overcome the arbitrary whims of FT officers. Under the applicable law, the Foreigners Act, 1946, the purported foreigner has the burden of proving that they are an Indian citizen. This report finds that numerous facets of the citizenship verification process contravene international treaties and Indian constitutional law, including due process, fair trial rights, equality provisions, and norms against arbitrary detention. The functioning of FTs are problematic for the reasons described below and deviate from international and Indian law in the following ways: