In the context of determination of illegal migrants, sane decision-making and using the proportionality principle will help policymakers
Though the Citizenship (Amendment) Act, 2019 (CAA) and the protests surrounding it have been highly politicised, the fact remains that the leaders involved in amending the Act have not made any effort to reach out to the people. However, the same leaders can be seen on national television channels emphasising the need to educate the people about the CAA and explain the rationality of the Act to them in simple words. Like the ruling party, many of us do believe that though our population of billions is like an ocean, we still need immigration regulations — Acts, manuals, a quota system and a futuristic system that handles work permits. These can be designed to discourage (or even encourage) the inflow of un/skilled or un/qualified people into the world’s largest democracy, like many other nations across the globe do, keeping the balances of a democracy intact. Knowing the size of the population that has to be combed to arrive at the right numbers, the diversity of it and the fact that so far nothing has been achieved in this sphere, the task is vast and unique. The Assam experience of 30-odd years, dealing with this very issue, needs to be analysed and drawn from.
The Foreigners’ Act, 1941 as enforced in Assam in 2005 — following the failure of the Illegal Migrants (Determination by Tribunal) Act, 1983 — but applicable to the whole nation, is an ambitious one and has been amended recently in 2019 keeping in mind bigger strategic plans around it. This amendment empowers District Magistrates to form Foreigners’ Tribunals (quasi-judicial courts) in every nook and corner of the country as required, where the accused foreigners are to be tried and either acquitted as an authorised resident or pronounced guilty and thereby put in deportation camps. The process of arriving at the size of the migrant numbers and composition, which is the basic requirement for implementing the Assam Accord, took more than three decades in a single State with a poor outcome as reflected in the National Register of Citizens (NRC) numbers last year. This holds testimony to the intricacy and nuances of the process, for anything similar implemented in the whole country.
While setting forth on the task of identifying reliable data sources for number assessment, we must remember that New Delhi shares no deportation treaty with Dhaka, Pakistan and Afghanistan, where the Indian Government can detect-delete and deport immigrants of any specific category it wishes to.
Unlike a few developed nations like the USA, neither does India have any third-party deportation deal with any country, as New Delhi is yet to find a Hondura or Salvador (countries of the Northern Triangle of Central America) who had agreed to be illegal migrant deportation destinations.
Political analysts will agree that besides focussing on identifying illegal migrants, we need to have standard procedures for handling the accused in alignment with the International Human Rights norms. Regarding the extraction of meaningful data for the process, this also needs to conform to international data regulation norms as all these measures would help us avoid human rights violations during the process, as well as maintain the international image India has built over the years.
The best the state can do with the identified illegal migrants after a successful operation is to expel them from electoral rolls or land ownership rolls, creating a cohort of “stateless people.” This, in turn, may put India in the same bucket of countries like Estonia, Kuwait, Latvia, Myanmar, Russia, Syria, Thailand and Uzbekistan, in the context of global statelessness.
The identification of illegal migrants in Assam was mostly done on the basis of suspicion, based on their general demeanour, poverty, illiteracy, existence in groups, certain ways of dressing, food habits and their typical accents.
The Assam Police Border Organisation, (a wing of the State police) tasked with detecting foreigners, identified and readied the cases for the Foreigners’ Tribunal courts to decide who was an illegal migrant and who was not. Allegations exist that the Government gave the border police a monthly target to detect people of suspect citizenship and refer them to the tribunals.
Documentary proof of citizenship by blood as recognised by the Indian Constitution was a hard task in an overtly illiterate population of migrants who are subject to rapid dislocations and displacements due to economic reasons and the yearly floods that inundated their huts and shanties by the bank of the Brahmaputra river and in marshy forest areas, yards away from herds of rhinos and buffaloes.
The last decade saw people lining up in front of Government offices to submit documents with mud and water marks, that they could hardly read, related to birth, land ownership and education certificates. Many of them, who didn’t have any documents for proof of the years they had spent in the region, sat slapping their foreheads, many lied and some of them resorted to declaring/creating false connections to citizens picked out from the legacy data (digitised data with the Assam Government drawn from the 1951 census and voter list of 1971 used for data verification) that the authorities used.
For example, dozens of young people claimed to be the children of the same father or mother who was already part of the legacy database, so that they could get counted in.
To combat fraud of this kind and identity thefts, officials started going over family trees of two generations of each applicant to corroborate information about parents and siblings. This data collection is closest to ethno survey designs for illegal migrant determination for suspected Mexican immigrants in the US, which sorted the suspected migrants to detect the ones most likely to be unauthorised by looking at where they were born, when they came to India, how old they were, how they were related to other people in their households, what kind of jobs they had, what kind of income and whether they were getting Government benefits, among other factors.
The result of this process, spanning decades, was that a few people declared as foreigners were the poorest of the poor, the most illiterate and the most hapless ones, who couldn’t have managed or manipulated fraudulent documents or a good lawyer to fight their cases. If we plan to attempt to “cleanse” the rest of the country of such people, the process must be with a clear roadmap and strategy so as to avoid starting the engines of another chaos machine.
Many in the State maintain that foreigners’ cases have assumed the form of a money-making industry and graft mushroomed all over the State, that indulged in turning Indians into foreigners and foreigners into Indians on the basis of fake documents. A few months ago, the All-Assam Minority Students’ Union claimed that the border police and tribunals were “foreigner-making factories” and “officials have orders to harass the religious and linguistic minorities.”
In the context of illegal migrants’ determination, sane decision-making and using the proportionality principle will help policymakers. Healthcare professionals often are confronted with the task of assessing the benefits or harm of procedures or treatments to be done on a significantly-ill patient where there’s a direct application of this principle.
The treating doctor needs to decide whether a procedure/treatment would be beneficial to the patient and hereby decide to do it, or the patient is better off without it for his overall health and well-being. Finding the precise therapy is the overriding goal of medicine and these I believe are very pertinent thoughts applicable to this scenario in our country around the illegal immigrants’ issue. Rapid succession of “addressing and resolving” of one critical issue after another even before the issues (the Jammu and Kasmir issue being the predominant one) have actually settled and normalised in a background of economic lassitude, is leaving the masses shocked and wide-eyed.
(The writer is an author and a doctor by profession)
