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Assam Foreigners Tribunals: How procedures, laws failed to consider gender discrimination

Counterview Desk
Even as criticising India's courts, especially the Supreme Court and the Guwahati High Court, for complicitity towards exclusion and abuse perpetuated through the Foreigners Tribunals set up across Assam to identify who all are "genuine citizens", well-known NGO Amnesty International in its recent  report, "Designed to Exclude: How India's Courts are Allowing Foreigners Tribunals to Render People Stateless in Assam" says,  the whole system has had harsh impact on the lives of women.
Pointing towards how the mechanical nature in which the Tribunals have passed their opinions without any application of mind or consideration to the special vulnerabilities of certain persons, including married or widowed women, the report says, the "high standards of burden" to prove that they are indeed Indian citizens are "unreasonably placed" on the vulnerable sections.

Excerpts from the chapter 'Gender Discrimination':

Women, as a social class, have been struggling to prove a linkage with their parents and grandparents. The entire procedure heavily relies on identity documentation. However, women in most communities, even today are married before they turn 18 – the minimum legal age to marry and vote in India.
Therefore, in many cases women are able to produce documents establishing links to their respective husbands but fail to prove the link to their parents. Many who are married before 18 are compelled to rely on the certificates issued by the Gaon Panchayats which authorize their permanent residence.
The procedure, therefore, is completely removed from the social, cultural and economic reality of India wherein women continue to struggle to access any kind of state-issued documentation. The strict scrutiny weighed down by predisposed biases further marginalizes the community. This has adversely affected the determination of a married woman’s right to nationality in Assam.
Speaking to Amnesty International, Sanjay Hegde, a Senior Supreme Court lawyer said:
“When a woman is married at an early age, she is often not documented in the family of her birth. When she goes to a different village after marriage, she has no documentary life. Then when she approaches the Foreigners Tribunal she is declared an irregular immigrant. So now leaders are appealing to their communities to ensure there is some documentary link for women before marriage. These are the kinds of social situations which people sitting in tribunals do not necessarily consider. The procedures and laws fail to consider the acute gender discrimination.”

Samina Bibi

Eighteen years ago, Samina moved to her husband’s village in Bongaigaon district.In 2016, two personnel from the Border Police branch delivered the notice from Bongaigaon Foreigners Tribunal No 1. Samina cannot read or write so someone else had to read the notice to her, wherein she was accused of being a foreigner who came to India from Bangladesh after 1971.
In the Tribunal’s order, which Amnesty International India analysed, she submitted 10 documents including, her father’s name in the 1951 NRC list, voter list of 1966, voter lists of 2015 and 2018, and her marriage certificate, among others. However, the marriage certificate and documents linking her to her parents were rejected because Samina Bibi could not ‘authenticate its genuineness’.
In particular, the 1966 voter list was rejected because she could not remember the Lok Sabha Constituency of her grandfather, when asked by a Foreigners Tribunal member. The National Register of Citizens (NRC) list document was rejected because it was not a certifed copy.
The subsequent voter lists carried her name along with her husband’s, but they were not helpful in establishing the legacy to her parents. Her electoral identity card was rejected not just as a valid proof of citizenship but also as a legacy document because it only proved her link to her husband.
Speaking to Amnesty International India about the proceedings, Riaz, Samina Bibi’s husband said, “The Tribunal member openly declared that regardless of the number of documents that Muslims bring, even if it is land deeds, I will send them directly to Bangladesh.”
“After we received the judgment copy, Samina stopped eating. After she did not eat for 4-5 days, I had to take her to the hospital and she had to be put on a saline drip. Her blood pressure had shot up,” Riaz said. “The doctor said she was depressed. Now she fears she’ll be sent to Bangladesh, a place she knows nothing about.”
The names of her two children have been left out of the final NRC too.

Safina

When Safina first received the notice from the Border Police, she was so scared of being taken away to a detention centre that she went into hiding at her relative’s place for a couple of days. “I thought they were going to take me away,” said Safina.
At the Foreigners Tribunal, she was asked to name her village, parents, grandparents and other details. “I was a bit nervous while answering the questions but I managed to respond to all of them accurately,” she said.
However, with no exposure to formal education and literacy, she didn’t know what documents were submitted on her behalf to prove her citizenship.
Safina had submitted voter lists of 1966 and 1970 with her parents’ name on it as her legacy data. She also submitted a Gaon Burah (head of the village) and Gaon Panchayat certificate as her linkage but the latter was not accepted because the issuing authority was not present to testify its authenticity. 
She also submitted voter lists, as well as a land document with her brother’s name on it and a copy of an opinion from Foreigners Tribunal No. 2 in Morigaon district that declared her sister, Safura Khatun an Indian. However, she did not submit any document linking her with her brothers or her sister.
A Tribunal member said, regardless of the number of documents that Muslims bring, even if it is land deeds, I will send them directly to Bangladesh
As per the Foreigners Tribunal order, she was declared a foreigner on the grounds that she was an adult before she got married yet her name did not appear in any of the voter lists, either with her parents or her brothers. “The lawyer just told me that the case did not turn out in our favour, so we’ll have to go to the Gawahati High Court.”
The process used by the Foreigners Tribunal is unbecoming of a quasi-judicial body empowered to determine the paramount right to nationality. To illustrate, the Foreigners Tribunal said:
“[T]he age of the eldest son of O.P. is 27 years. If we deduct 27 years from 2017 then we see that, the son of O.P. was born in 1990. As such I can take it for granted that, O.P's. marriage was come off in 1988/89. And while the O.P's. year of birth is 1961 as such in 1988/89 she should be of the age of 26 and 27 years of age. It means she was at her parent's house up to the age of 27 or 28 and as such her name should have enlisted in the voter list together with her purported Father and Mother and her Brothers in a same voter list as voters. But, the O.P. has failed to produce any such voter list containing their names been enlisted together. So, I see that, the O.P. has failed to establish her link with her parents and brothers.”
Safina and her family have already spent around Rs 150,000 for appealing the case in the Foreigners Tribunal and High Court, for which they have had to sell off their cattle and put their farmland on lease. But the heaviest cost that the family has had to bear is the deep trauma their eldest son suffered when he heard his mother has been declared a foreigner.
“He was normal before but after the court order, he started doing things like roaming around naked or having episodes of extreme paranoia that he’d start throwing things around the house,” Safina said.
“He used to be our breadwinner,” she said but now the family doesn’t have the money to receive proper mental health and medical treatment for his condition. “The doctor said we’d need at least Rs 100,000 or more for him to be treated properly.”
Eventually, her son’s wife left him and took her grandson along too. Now, Safina has become her son’s full-time caretaker.
“Maybe this was just written in my fate,” said Saifna.

Manowara Bewa

In January 2015, Manowara Bewa was arrested from her home in Gauripur village, Dhubri district. The border police arrested her after she was declared a foreigner and took her to the detention centre in Kokrajhar. Her son, Yunus, was working as a daily wage labourer in New Delhi. Only her daughter, Najuma Khatun, was at home when she was arrested.
Women waiting outside Foreigners Tribunal 
The Foreigners Tribunal member while declaring her a foreigner found her legacy and linkage documents to be unreliable. For establishing legacy with her parents, she submitted her school certifcate (she had studied up to class 4). This was found to be unreliable because she had not mentioned the school certifcate in her written statement.
Manowara had submitted a duplicate copy of the school certifcate but the school headmaster was examined in person to attest the authenticity of her claim. For proving her legacy, she submitted the 1951 NRC list with her father’s name. The Foreigners Tribunal member pointed out that her father’s age and his relation with his wife had been overwritten in the document.
Moreover, the member observed, that Manowara had not mentioned her mother’s name anywhere in her written statement. The Foreigners Tribunal member observed, ‘the OP with malafde intention has taken recourse to falsehood and tempering (sic) of document which itself establish that she is not a citizen of India and as such, she is suspected along with other documents produced by her during the course of evidence for genuineness and authenticity.'
The member also found discrepancies in her father’s age mentioned in the 1966 electoral roll and her grandfather’s name in a land document from 1966. Moreover, the Foreigner Tribunal member found the land document to be untrustworthy because she had not produced any sale receipts or other evidence as supportive proof.
When the Gawahati High Court examined the same evidence in 2016, they pointed out that the certifcates issued by the secretaries of Gaon Panchayats are of private nature and they do not have statutory authority and cannot be accepted as public documents under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
It is important to note that the Court failed to consider the particular vulnerability of married women who migrate from their paternal homes at a young age to their marital homes and thus find it difficult to prove a documented linkage to their parents.
When Yunus returned from New Delhi, after his mother was sent to the detention centre, he had to close down his mother’s grocery store in the market. He started a small tea stall right in front of his house to run the house from which they earn Rs 4,000 a month.
The family has been surviving on the help of their maternal uncle. They had to sell some land for Rs 20,000 but have spent close to Rs. 400,000 so far to fight their mother’s case. “I still have to pay the lawyer’s fee every month, which is the entire amount I make from the shop,” Yunus said.
Both brother and sister were entirely clueless about the legal proceedings of the case. Most of all, their education and childhood has greatly suffered because of their mother’s detention. She is the sole surviving parent after the father passed away in 2000.
Although they traced their legacy to the father, Yunus and Najuma’s names have not appeared in the final NRC list. They have little clue about what may lie ahead for them. “What if the same thing was to happen as it happened with my mother? I don’t know what to do?” said Yunus. Najuma was quiet and withdrawn for the most part. At the time of our meeting, the children were told that Manowara Bewa will be home in a month’s time from Kokrajahar. She has completed more than three years’ time in the detention centre, making her eligible for release on a bond and surety from two persons, as per a recent Supreme Court order.
Yunus visits her at least three times a month in the detention centre; he says she is miserable. “She told me that the food served to them in prison was pathetic. We usually give her some money and fruits whenever I visit. I’m looking forward to her return but they have been delaying her release for the past six months.”

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