AAKAR PATEL
One common trait in lawless nations is high levels of anxiety against arbitrariness. Me dieval texts tell us this has always been the case in our parts. Cruelty is couched as process and millions put through torture. Special In tensive Revision forms are being handed out across India. It is impossible on a first reading of this sin gle-page form, for even an educated reader to under stand what one is required to do. We are told by the exec utive and the judiciary that putting us through this is not only reasonable but required and necessary. Of course, we have been down this road before. In 1998, the Governor of Assam, a retired military man named S K Sinha, sent a note to then President K R Narayanan, referring to the situation in alarming language: ‘Large-scale il legal migration from East Pakistan/Bangladesh over several decades has been altering the demographic complexion of this State. It poses a grave threat both to the identity of the As samese people and to our national security.
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Succes sive governments at the Centre and in the state have not adequately met this challenge.’ Sinha demanded action ‘to avert the grave danger that has been building up for some time … If not ef fectively checked, (Bang ladeshis) may swamp the Assamese people and may sever the Northeast land mass from the rest of India. This will lead to disastrous strategic and economic re sults.’ Sinha acknowledged that he was not basing this as sessment on any data. He added: ‘Unfortunately, to day we have no census re port on the basis of which we can accurately define the contours of trans-bor der movement. Thus, we have to rely on broad esti mates of theatrical extrap olations to work out the dimension of illegal migra tion that has taken place from East Pakistan/ Bang ladesh.’ In short, he had no evi dence to prove this theory but felt strongly enough about it just the same to raise it with the president officially. In 2005, Sarbananda Sonowal, who later became the BJP Chief Minister of As sam, went to the Supreme Court to make the laws gov erning the identification of individuals suspected to be foreigners harsher. The Supreme Court leaned on S K Sinha’s speculative note in this case to conclude that Assam was facing ‘ex ternal aggression’ which threatened a constitutional breakdown.
The judiciary reversed the burden of proof for the residents of Assam, a fea ture it regularly condones as we have seen in this col umn before. Normally, the State must prove wrongdo ing or criminal activity and provide the evidence that someone should be pun ished. This is the meaning of the term ‘innocent till proven guilty’. However, the judiciary thrust the onus of proving they were not foreigners (and for those born after 1971, that their parents or grandpar ents were not foreigners) onto the Assamese. They were all guilty until they could prove themselves in nocent. In a nation where many, if not most, are poor and not fully literate, where docu mentation is weak, and in a State where flooding and total loss of property are common, this reversal of the burden of proof on such an important matter was cruelty. The other thing the State did was to have al most no safeguards. The foreigners’ tribunals which would determine whether someone should be set free or sent to a jail, were staffed by people giv en four days of training. They were advocates and retired civil servants hired on two-year contracts. In dividuals would have to present their case before such people.
The Assam government run by the BJP told the tri bunal members what it wanted them to do by not extending the contracts of those who had a low rate of declaring individuals as foreigners. This was revealed in an affidavit the government itself submitted to the Gauhati High Court when some of the tribunal mem bers moved court saying they had been let go from their jobs without any reason. This was not so, the government denied this, claiming that all tribunal members had received a performance appraisal. In 2017, it submitted a note showing the names of the individuals, a column showing ‘percentage of for eigners declared’, ‘general view of the government upon the member’ and ‘whether may be consid ered for further retention or may be terminated’. Individuals who marked fewer than 10 per cent of the total number of people coming to their tribunal as being foreigners were deemed ‘not satisfactory’ and shown to be ‘terminat ed’.
The State government was effectively incentiv ising its tribunal officers to mark more people as foreigners, and punishing those officers who were not doing so. Such injus tice did not receive na tionwide much less global, notice, and the matter was limited to the Assamese media. The crisis snowballed when an Assamese, Ranjan Gogoi was appointed as the Chief Justice of the Supreme Court. The State, under the BJP drew up a first list, ex cluding over 40 lakh people and then a final list of those who it was satisfied met the criteria that it laid out. This was the so called National Register of Citizens. The list excluded 19 lakh people who would now have to line up be fore the foreigners’ tri bunals with their papers and prove their citizen ship.
The majority of these 19 lakh turned out to be Hindus. This was unexpected be cause the BJP had believed its own narrative and gov ernor Sinha’s theory of a State overwhelmed by ille gal immigrants, when there was no evidence to show this was the case. The BJP government then decided to scrap the Assamese NRC that it had forced India to spend so much resources and effort on. We are now again upon a similar exercise, this time nationwide. Reports of en titlement benefits being scrapped, passports be ing denied and confusing forms have begun com ing in. The population is gripped by anxiety against arbitrariness and the cru elty of a State that sells its actions as minimum government. (Aakar Patel is a writer and columnist)
