To
Shri A K Bhalla
Union Home Secretary
Dear Shri Bhalla,
I have come across a disturbing news report , which stated that one, Rahim Ali, a resident Kashimpur village in Nalbari district of Assam, who was declared a “foreigner” by theTribunal under the Foreigners Act, 12 years ago ex parte, has now been declared by the Hon’ble Supreme Court to be an Indian citizen. The irony is that Rahim Ali died two years ago, while the case before the apex court was going on. During the ten years he lived, Rahim Ali, accused of being a “foreigner”, lived in constant fear and his family was traumatised.
I have come across many such instances of genuine Indian citizens In Assam being picked up summarily by the police, sent to detention camps, disrupting their lives, the lives of their families and disrupting their children’s education, merely because they are far too diffident and far too timid to be able produce whatever documents they have to “prove” that they are Indian citizens. In fact, such arbitrary arrests violate the basic principle of natural justice that the burden of proof of guilt should rest, not on the accused, but on investigating authorities who make the accusation. It is only when public-spirited NGOs/ legal professionals take up their cases free of cost and seek relief from the higher levels of judiciary that some of them get relief, far too late, far too little. At the end of the day, there is no mechanism in place to compensate them for the trauma undergone nor any way to hold those that detained them to account.
In several such cases, in the past, I approached the NHRC for intervention (https://countercurrents.org/2021/02/assam-violation-of-human-rights-of-detainees-under-the-foreigners-act/ & https://countercurrents.org/2021/01/violation-of-the-human-rights-of-an-innocent-family-in-assam/) but in the absence of an institutional mechanism to analyse such cases and take corrective steps, they could not get adequate relief.
In this connection, a fact-finding team comprising of professionals from the Centre for the Study of Society and Secularism (CSSS), Prof Dilip Bora, a prominent scholar and Professor at the Gauhati University, Prof Monirul Hussain, an eminent scholar and Chair Professor of the Centre for North-East Studies and Policy Research at Jamia Millia Islamia, Hafiz Ahmed, a social activist and educationist and Shahiuz Zaman Ahmad, a scholar and activist visited Guwahati and different villages in Goalpara in 2019 and published a report with their findings (https://countercurrents.org/2019/07/assam-nrc-a-humanitarian-crisis-looming-large-csss-fact-finding-teams-report),which could help the government revisit the approach towards persons accused of being foreigners.
Apparently, there is a need to reconcile the conflicts that exist between the Foreigners’ Act of 1946 and the Citizenship Act of 1955, especially in respect of holding the person accused to prove innocence. The Ministry of Home Affairs (MHA) may issue guidelines to the State Government not to resort to summary accusations without valid evidence and not to detain those accused in a routine manner. There is need to set up an institutional mechanism independent of the executive, preferably accountable to the judiciary, to review every case of an investigating officer accusing a person to be a “foreigner”, help accused persons to locate evidence to show that they are Indian citizens and provide compensation to those subject to arbitrary arrests and/or harassment. In the laws applicable to such cases, the burden of proof should be on investigating officers, not on the accused.
In a democracy like ours, genuine citizens like Rahim Ali should not be subject to the kind of harassment that he and his family had to go through, all as a result of an erroneous accusation.
Considering that there are hundreds of undertrials accused of being foreigners languishing in detention camps, I hope that MHA will give this matter the highest priority and come up with an arrangement that will avoid instances like Rahim Ali’s..
Regards,
Yours sincerely,
E A S Sarma
Former Secretary to the Government of India
Visakhapatnam
