Declared Foreigner

A dense canopy of trees surrounds Kalam’s tin-roofed home and his wooden boat tied by the shore gets a lot of use. His home is frequented by his daughter, his grandson and several other relatives on a daily basis who came to his wife’s aid when he was imprisoned in one of the country’s largest detention centres. 

There are two ways in which a person can be declared a foreigner. First, executing the provisions of the 1985 Assam Accord, the Border police in Assam can accuse you of being an illegal migrant.

Second, as happened in Kalam’s case, the Election Commission of India can accuse you of being a “Doubtful Voter” by marking a “D” in front of your name on the voters’ list. This is a provision that was first introduced in 1997 and occurs when the Election Commission of India believes that the documents submitted by a registered voter are not sufficient to prove their citizenship, and therefore revokes their right to vote. 

Once you have been accused of being a foreigner, you can approach the Foreigners Tribunal in Assam and if they find that you cannot prove that you are an Indian citizen, they declare you a foreigner. “The process is very arbitrary,” says Wadud. 

Before accusing a person of being a foreigner “there is no investigation, no one asks for any documents…even before the tribunal the process is very arbitrary. Even if you submit n number of documents you might be declared as a foreigner and in most cases people are now being declared as a foreigner,” Wadud added. 

When a person is declared a foreigner, the burden of proof to show that they are a citizen lies on the accused themselves. That is, the court does not have to prove that the accused is not a citizen; the accused has to prove that they are.

In Assam, the cut-off dates for citizenship are different to that for the rest of the country, in keeping with the Assam Accord which intended to assuage the demands of the AASU and AAGSP’s Anti-Foreigners movement. To prove that you are an Indian citizen in Assam, one must show that their parents migrated to the country before 1971, that is before the creation of Bangladesh. 

“From my father’s grandfather’s, for generations, I have not known any other land except for our home here in Bongaigaon district,” says Kalam. Despite knowing no other home, if he cannot prove that his ancestors entered the country before 1971, he will not be able to shake the tag of foreigner that has now been accorded to him. 

Kalam appealed the 2017 decision of the Foreigners Tribunal which declared him a foreigner in the High Court of Assam, after he was detained. Typically, due to people not making or keeping birth certificates in earlier years, especially in rural areas, people find it difficult to prove lineage, says Wadud. Kalam submitted to the court that his father’s name appears in the 1965 voters list, and his father-in-law testified that the person shown in the list is indeed Kalam’s father, according to court documents. The High Court has said that once Kalam’s father’s testimony is verified, it may prove as sufficient evidence of his citizenship, and has remanded the case back to the Foreigners Tribunal for a final decision, listed on August 16. 

There are 100 Foreigners Tribunals currently functioning in Assam and they have declared at least 143,466 people as foreigners while only 329 of these have actually been deported, according to figures provided by the Indian Ministry of Home Affairs (MHA) in a written response to parliament in 2022.

Over 1000 people have spent time in Assam’s detention centres, according to figures provided by the MHA. Hundreds of them have spent three years or more in detention. 

When a person is detained after being declared a foreigner, the detention centre is meant to be a “waiting room” before they are deported to their country of origin. However in most cases, an Indian citizen is declared a foreigner, and therefore no other country can confirm their nationality, creating a situation of “indefinite detention” Wadud said. Assam’s Ministry of Home Affairs did not respond to a request for comment.

Kalam is relatively among the luckier ones, having spent only a few months at the detention centre owing to timely legal intervention. In most cases, there is no one fighting for the detainee on the outside, owing to a lack of resources. 

45-year-old Dukhdan Das belongs to the Bengali Hindu community and currently works in a hotel in the Bongaigaon district in Assam. He was not as lucky. Das was declared a foreigner by the Foreigners Tribunal in 2016 and spent over three years in detention. In May 2019 the Supreme Court of India passed an order saying declared foreigners could not be indefinitely detained and that anyone who had been detained for three years or more, must be released. Subsequent to this order, Das was released in November 2019. 

“They would give us dog’s food, there would be insects in it they thought we are Bangladeshi so why should they treat us well…for about six months I didn’t eat anything,” Das said amid sobs. The years he spent in jail were harrowing, and left him frail, he says. 

In 2020 after the onset of the Covid 19 pandemic, the Supreme Court of India further reduced the time of detention for a declared foreigner and ordered the release of any detainees that had been imprisoned for two or more years as a measure to declutter prisons. According to court documents some declared foreigners have spent as many as 9 years in detention centres.

The Indian Ministry of Home Affairs says that maintaining detention centres is the duty of the state government in Assam however it has issued guidelines for a Model Detention Centre to ensure all basic facilities are provided to detainees. Assam’s Ministry of Home Affairs did not respond to a request for comment. 

His wife, Bina Das, was also declared a foreigner but not detained. She was left to raise three kids on her own, while working full time as a maid so that she could feed them. 

According to Wadud proving citizenship is disproportionately harder for women. In Bina’s case, she was declared a D-voter because of a discrepancy in her name in the voters' list, compared to on her documents owing to her changing her name after marriage. This is true of several women who may have changed their last names after marriage and may not have gone to school, or have a job, and therefore have no documents, or if they do have documents, they don’t always match, Wadud adds. According to the All Assam Transgender Association, similar complications impact people within the transgender communities whose names are usually different from their dead names or birth names and they may not have ties with their families who often have older documentation. 

Heightened Tensions today

The question of citizenship and the fate of declared foreigners became an especially contentious issue after the government of Assam published the final draft of the National Register of Citizens (NRC) in 2019, which excluded 1.9 million people in Assam. The Indian government has said that it intends to carry out the exercise nationwide but this is yet to be executed. In Assam, a region already torn with ethnic strife and vilification of the Bengali community in Assam, the NRC added fuel to an already raging fire. 

The people left off the NRC are not instantly stateless, however, it does put a target on their backs, says Wadud. In 2019 alone 22,783 people were declared foreigners, according to data provided by the MHA to Parliament. 

The NRC disproportionately impacted the Bengali community, Hindus and Muslims alike. In the same year, the Indian government amended the citizenship laws, to fast-track citizenship by naturalisation for people who had migrated from the neighbouring countries of Afghanistan, Pakistan and Bangladesh, but not for Muslims. This legislation, the Citizenship (Amendment) Act (CAA), from the Hindu Nationalist government of the Bhartiya Janata Party was met with fervent nationwide protests. “The Indian government did not expect the NRC to leave out so many Hindus, so the CAA was a way to fix that,” says Wadud. 

The CAA was criticised for being anti-Muslim, for making religion a basis for citizenship in a country where secularism is enshrined in its constitution.

However, in Assam, the opposition to the CAA was different. The All Assam Students Union (AASU) took to the streets to protest the legislation because they feared that this would allow for Hindu members of the Bengali community who had previously been declared as foreigners, to be integrated back into Assam. They believe that all people from the Bengali community, Hindus and Muslims alike, are “infiltrators”. 

The Significance of Citizenship

The NRC exercise in Assam got a lot of national attention because of what it might mean for the rest of the country. However, according to Wadud the persecution of the Bengali community in Assam is a uniquely Assamese issue. Hundreds of lives of people declared foreigners have been ruined under the guise of preserving “Assamese culture”, and thousands have been denied their basic right to be recognised as a citizen of India. 

“When the entire mechanism has put a doubt on your citizenship and you have to prove your citizenship…you are under constant stress,” says Wadud.

While it may be a uniquely Assamese issue, it illustrates how citizenship in India is exclusionary. Indian citizenship relies heavily on lineage and within the current national political climate, especially with laws such as the CAA passed in recent years, Indian citizenship more and more becomes something that can be granted only if you are sufficiently "Indian". The definition of Indianness often excludes anyone that does not fall into the privileged caste Hindu majoritarian category, as several Human Rights organisations have observed.

“Your citizenship is your everything, it is your very existence, it’s a gateway for more rights, its a right to have more rights,” Wadud adds.

Within a global context of anti-immigrant policies that are also reflected within the Indian context, being able to hold on to your citizenship becomes crucial.

Kalam awaits his next court hearing and hopes that his citizenship will be restored. Das knows he cannot be detained for more years having already been detained for the maximum period, but he continues to live as a declared foreigner, his claim to citizenship tarnished.