Month: April 2019

India Has ‘High Expectations’ China Will Remove Hold on Masood Azhar Listing at UN

Indian sources said China’s decision to remove the hold could be a result of threats by the US and other western countries to bring a resolution in the United Nations Security Council. But it is likely the result of a three-way deal.

New Delhi: There is high possibility that China could indicate its next step – even remove its hold – on the listing of Jaish-e-Mohammad chief Masood Azhar at the UNSC’s 1267 sanctions sub-committee on Wednesday.

Sources have indicated to The Wire that there is a “silence period” in place till 9 am New York time on May 1. This means that the committee will go ahead with the listing as a default procedure, unless there was an objection before the deadline. “If no country objects till that time, the listing will take place,” they said.

This morning, a Hindustan Times report quoted sources saying that China was expected to lift its technical hold on blacklisting Azhar on May 1. In an indication of the political narrative that is likely to be pushed, an unnamed “senior official” was quoted by the newspaper as saying, “May Day is going to be the death knell for Masood Azhar, as he will be designated as a global terrorist by the UN’s Islamic State and al-Qaeda Sanctions Committee, with Beijing caving in to the global demand led by the US, France and the UK that the main orchestrator of the Pulwama attack be brought to book.”

In reality, the UN designation will do nothing to bring Azhar “to book”. Its actual significance in the fight against terrorism on the ground is largely symbolic, but for Prime Minister Narendra Modi, who has made his response to the Pulwama attack a major re-election plank, the news is likely to be projected as a major accomplishment of a “strong” government.

At the same time, there have been ample indications that the Modi government may have secured China’s concurrence in a three-way deal that involved India bowing to US pressure on Iran and agreeing to stop all oil imports from a country that is one of its largest suppliers of crude and also a key strategic partner in West Asia.

If it is taken on May 1, the decision will have come about a month and a half after China put on hold the listing proposal, which had been initiated by the US, France and the UK. The new proposal was mooted after the JeM took responsibility for the terror attack that left over 40 Indian security personnel dead in Pulwama, Kashmir on February 14.

While New Delhi is waiting for any developments, there is still not complete confidence that China would remove its hold – even though there is high expectation. That is one of the reasons that there have been no official comments from Indian officials in the run-up period.

According to Indian sources, China’s decision to remove the hold could be a result of threats by the US and other western countries to bring a resolution in the United Nations Security Council. The argument goes that China does not want to be seen as the sole hold-out, with the other 14 members voting for the resolution to blacklist Azhar.

Also Read: During Visit to China, Indian Foreign Secretary Shares Evidence on Masood Azhar

However, a public ‘humiliation’ may not be the main motivation for China, with its muscular go-alone foreign policy and strong interests in Pakistan. Instead, if China does remove its hold, the motive, say diplomats, is likely to be transactional, with either a deal with the US or India, or both.

The language of the listing for Azhar has apparently been under negotiation to make it more palatable for China.

Meanwhile, the US has already indicated that the pressure being put on China in the UN with Masood Azhar was linked to New Delhi’s decision to stop all oil imports from Iran.

Earlier on Tuesday, Chinese foreign ministry spokesperson Geng Shuang did not go beyond previous remarks in stating that consultations were ongoing and that the issue will be “properly resolved”.

On reports that China would lift its technical hold on May 1, he said, “On the listing issue, China is still working with the relevant parties and we are in contact with all relevant parties within the 1267 Committee and I believe with the joint efforts of all parties, this will be properly resolved.”

He said there had been “some progress” due to the relevant consultations.

A month ago, on April 1, Geng also noted that “China has been working on all parties and achieved positive results”. He had been critical of the US’s draft resolution, saying it “makes no sense at all”.

Earlier this month, Indian foreign secretary Vijay Gokhale visited Beijing, during which New Delhi stated that he shared “technical evidence” of JeM’s activities.

SC Sets Aside Centre’s Decision to Merge NSEL and FTIL

The apex court held that that the Centre’s February 2016 order was “ultra vires” to section 396 of the Companies Act and was also violative of Article 14 of the Constitution.

New Delhi: The Supreme Court on Tuesday set aside the Centre’s decision to merge National Spot Exchange Ltd (NSEL) with Financial Technologies India Ltd (FTIL), which is now known as 63 Moon Technologies Ltd.

A bench comprising justices R.F. Nariman and Vineet Saran delivered the judgment on a batch of petitions filed by 63 Moon Technologies Ltd challenging the Bombay high court’s December 2017 verdict upholding the Centre’s decision to merge NSEL with FTIL.

In February 2016, the Centre had passed a final amalgamation order in terms of the provision of the Companies Act merging FTIL and NSEL. As per the order, all the assets and liabilities of NSEL would become assets and liabilities of FTIL.

The government’s order was challenged in the high court, which dismissed the petition in December 2017.

In its judgement, the apex court held that the Centre’s February 2016 order was “ultra vires” to section 396 of the Companies Act and was also violative of Article 14 (equality before law) of the Constitution.

“In conclusion, though other wide-ranging arguments were made with respect to the validity of the Central Government amalgamation order, we have not addressed the same as we have held that the order dated February 12, 2016 is ultra vires Section 396 of the Companies Act, and violative of Article 14 of the Constitution of India for the reasons stated by us hereinabove,” the bench said.

“The appeals are accordingly allowed, and the impugned judgment of the Bombay High Court is set aside,” the apex court said.

The bench held that the merger of NSEL and FTIL did not satisfy the criteria of “public interest”.

Also Read: Enforcement Directorate Arrests FTIL Founder Jignesh Shah in Money Laundering Scam

“Thus, it is clear that no reasonable body of persons properly instructed in law could possibly hold, on the facts of this case, that compulsory amalgamation between FTIL and NSEL would be in public interest,” the bench noted.

After the apex court’s verdict, Jignesh Shah, chairman emeritus and mentor of 63 Moons Technologies Ltd, said in a press statement, “We have always had full faith in the Indian judiciary and our courts. Finally, truth has prevailed.”

NSEL had shut down in 2013 after a major payment default and it was ordered not to enter into any fresh contracts by Forward Markets Commission (FMC), which has since been integrated into the Securities and Exchange Board of India (SEBI).

On July 31, 2013 NSEL, then 99.99% subsidiary of FTIL, had defaulted in nearly Rs 5,600 crore payments to its around 13,000 investors.

After the crisis, the Ministry of Corporate Affairs (MCA) had decided to issue a final order for merger of NSEL with FTIL under section 396 of the Companies Act, 1956.

In February 2016, the MCA had passed a final order directing the merger of scam-hit NSEL with FTIL.

FTIL, promoted by Jignesh Shah, is the parent company of NSEL with 99% shareholding.

SEBI Bars NSE from Capital Markets for 6 Months in Co-Location Scam

Two former NSE chief executive officers, Ravi Narain and Chitra Ramkrishna, asked to disgorge 25% of their salaries.

New Delhi: The market regulator said on Tuesday the National Stock Exchange (NSE) did not exercise due diligence when putting in place a network that allowed high frequency traders unfair access to some network servers at the exchange.

The Securities and Exchange Board of India (SEBI) barred the NSE from raising money on the securities market directly or indirectly for six months.

The SEBI has been investigating allegations that the NSE officials provided high frequency traders unfair access through co-location servers placed at the site of exchange, which could speed up algorithmic trading.

It asked two former NSE chief executive officers, Ravi Narain and Chitra Ramkrishna, to “disgorge” 25% of their salaries drawn during a certain period.

Narain and Ramkrishna have been prohibited from “associating with a listed company or a Market Infrastructure Institution or any other market intermediary for a period of five years,” SEBI said in a 104-page order.

NSE was asked to pay within 45 days about Rs 624.89 crore with an interest rate of 12% a year effective from April 2014 to the Investor Protection and Education Fund.

By arrangement with Business Standard.

Watch | Reality Check: Jammu and Kashmir’s First ‘Cashless Village’

The Wire checks the Indian government’s claim that after demonetisation, Lanura in Jammu and Kashmir became the ‘first cashless village’ in India.

Soon after demonetisation, the Indian government claimed that Lanura in Jammu and Kashmir has become the ‘first cashless village’ in India. The Wire‘s Nisar Ahmad Dharma travelled to the village to find out if there was any truth in the claim. “We are actually cashless right from the time this village came into existence. You ask anyone in the village. They won’t have a penny in their pockets,” says the village head of Lanura, with a smile.

Gambhir Not Game for Debate on Development, Ducks Marlena’s Challenge

The AAP candidate from East Delhi has filed several complaints against the former cricketer with the EC.

New Delhi: Cricketer-politician Gautam Gambhir, who has been fielded by BJP from East Delhi, ducked a challenge from AAP candidate Atishi Marlena. In response to her invite for an open debate, he merely tweeted that he believes in positive politics and the politics of development.

Knowing that engaging Gambhir, a novice in politics, would provide an opportunity to criticise the BJP, Marlena tweeted in response that she was even agreeable to having a debate on development with him.

Earlier, on Monday she had challenged Gambhir to an open debate on the work carried out by the Aam Aadmi Party during its four-year tenure in Delhi and by the BJP during the last five years of Modi rule.

However, Gambhir, like a seasoned batsman, decided to not play her delivery.

Since his initiation into the BJP, Gambhir has been in the news for one reason after another.

As soon as he filed his nomination, AAP alleged that there were “shortcomings” in the documents submitted by him. Marlena said, “The stamp paper which has been furnished is dated April 23, 2019 whereas the notarial stamp on two of his affidavits have a date of April 18 and April 19 respectively.” A complaint was also filed with the Election Commission, but it accepted Gambhir’s nomination after giving him an opportunity to make some changes.

Also read: FIR Against Gautam Gambhir for Holding Public Meeting Without Permission

Marlena then accused Gambhir of possessing two votes and moved a local court to seek directions that a criminal case be lodged against him by the Delhi police.

After this, she again moved the EC, claiming that Gambhir distributed election pamphlets with banned details, such as the printer’s name, being still visible.

Her complaint said: “I file my formal complaint against Gautam Gambhir, East Delhi Parliamentary Constituency candidate, BJP, for distributing pamphlets without details such as printer’s name and quantity in violation of the rules”.

She also told the EC that “this is the third time in a row that Gambhir has violated the MCC. Such continued blatant disregard for the Election Commission is contrary to the spirit of democracy and endangers the free and fair process of elections…Only an exemplary punishment can deter such continued wilful violation”.

Also read: Gautam Gambhir Is Registered as a Voter in Two Constituencies, Claims AAP’s Atishi

Gambhir was earlier also pulled up by EC for conducting a roadshow without the required permission. Finding himself under such a sudden barrage, he clearly has gone on the defensive.

As for the debate around development and education in Delhi, two subjects on which Marlena has expertise, Gambhir’s strategy appears to be to leave the tough answering and questioning to Congress candidate and former Delhi education minister Arvinder Singh Lovely.

How a Botch-Up by Telangana Police Led to Release of ‘Honour’ Crime Accused

The Telangana high court said the Preventive Detention Act was invoked without application of mind, leaving it without a choice to order the accused to be released.

In a bizarre case, a judgment by the Telangana high court on April 23 indicted the state police for misuse of the Preventive Detention Act and quashed the preventive detention order against three accused in an ‘honour’ crime, resulting in their freedom.

The case illustrates how a well-reasoned Supreme Court judgment, delivered much prior to the caste-based honour killing incident, could not prevent the crime from taking place. It also shows the consequent botching up of the case by the state police.

As the high court judgment makes it clear, the state police failed to inform it that the bail applications of the accused were dismissed prior to their preventive detention. The high court, which shared the agony of the family members of the deceased, pleaded helplessness because the preventive detention order assumed that the accused were to be released on bail.

Also Read: Dalit Man Killed Allegedly by Pregnant Wife’s Vaishya Family in Telangana

The high court’s judgment, while seeking to safeguard individual liberties against the state’s tendency to invoke the Preventive Detention Act, without application of mind, underscores the existing vacuum in the law to prevent and control “honour crimes”.

The long title of the law and its three requirements

The law in question may perhaps qualify as the one with the longest title ever enacted by a state. It has the propensity to have a chilling effect on people pursuing different professions, merely on the basis of suspicion of committing an offence, because authorities do not apply their mind before invoking it. The full title of the Act is: the Telangana Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders, and Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders  Act, 1986.

The high court thus pointed out that due to non-application of mind, officials invoking the Act ignored its three crucial requirements: one, persons sought to be detained must come within the definition of one or more expressions such as bootlegger, dacoit and goonda etc; second, the detention should be with a view to prevent him or her from acting in any manner prejudicial to the maintenance of “public order”, which is not defined under the Act; third, a person accused of an offence under the Act should have “habitually” committed or attempted to commit or abetted it. In other words, persons who merely attempt to commit offences or abet a crime on a solitary instance, cannot qualify to be a “goonda” under the Act.

The Telangana case

In the instant case, Amrutha Varshini, belonging to a Vaishya upper caste Hindu family, fell in love with a Dalit man, Perumalla Pranay Kumar in Miryalguda. They were married, against the wishes of her parents. Though a case of kidnapping was filed against Pranay, no prosecution could take place, as both were majors.

When Varshini was in the fifth month of pregnancy, her husband took her to a hospital for a check-up on September 14, 2018. Pranay Kumar was killed by an attacker while leaving the hospital. The police booked Varshini’s father, T. Maruthi Rao, and her paternal uncle, T. Sravan Kumar for offences of murder and conspiracy. They were also booked under the relevant sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 2015. Mohd. Abdul Kareem, a friend of the two accused, was also arrested.

Perumalla Pranay and Amrutha Varshini. Credit: Special arrangement

Perumalla Pranay and Amrutha Varshini. Credit: Special arrangement

In the normal course, these provisions would have been sufficient for the police to proceed against the accused, and file a chargesheet in the trial court, after investigation. But, merely on the apprehension that they are likely to be released on bail, the police foisted two subsequent First Information Reports on the accused, dealing with offences which are bailable and non-cognizable, merely in order to invoke the Preventive Detention Act. These subsequent FIRs were filed 21 days after the registration of the first FIR, and were unrelated to the “honour crime”.

The state contended before the high court that since it was a case of caste-based “honour killing”, it had the potential to trigger communal violence between persons belonging to two castes. It said by their actions, the accused had created a rift between two sections of society. The state also argued that the court ought to ask only whether there was material before the detaining authority to satisfy detention, and not to examine the material  itself, for its relevance to detention.

Also Read: Hyderabad Police’s ‘Chabutra’ Raids are Making a Mockery of the Law

The high court held that there was no allegation that two of the three accused had “habitually” committed offences, to justify their categorisation as “goondas” under the Act. Even if the two subsequent FIRs filed against them established “habitual” commission of offences, they are non-cognizable and bailable, the high court held. Moreover, the alleged offences under the subsequent FIRs could not be considered as ones “prejudicial to the maintenance of public order”, the high court added.

The high court also dismissed the applications of the family members of the deceased for impleading in the case, because it found no scope for any third party to intervene in a writ of habeas corpus for quashing the orders of preventive detention. “While the victims have a right to seek justice in the criminal cases filed against the perpetrators of the crime, they cannot seek to justify orders of preventive detention”, the bench of Justices V. Ramasubramanian and P. Keshava Rao held.

The Telangana high court in Hyderabad. Credit: PTI

Lessons from the case

The honour crime in Telangana took place, much after the Supreme Court’s judgment in Shakti Vahini v Union of India, delivered on March 27 last year. The Centre told the court during the hearing that it was engaging various states and union territories for considering an amendment to the Indian Penal Code or enactment of a suitable legislation to address the menace of “honour killing” and related issues.

The Supreme Court, in its Shakti Vahini judgment, called for immediate steps to provide security to a couple which marries outside their caste or religion and their families and, if necessary, to remove them to a safe house within the same district or elsewhere, keeping in mind their safety and threat perception. The state government may consider establishing a safe house at each district headquarter for that purpose, under the supervision of the jurisdictional district magistrate and superintendent of police, it suggested.

An officer of the rank of additional superintendent of police shall conduct a preliminary inquiry and ascertain the authenticity, nature and gravity of the treat perception, and submit a report to the superintendent of police within a week of receiving a complaint from the couple or information about such marriage from an independent source, the Supreme Court held.

The Supreme Court also insisted on taking disciplinary action against the concerned officials, if it is found that they did not prevent the honour crime, despite having prior knowledge of its likelihood, or where the incident had already occurred, they did not promptly apprehend and institute criminal proceedings against the culprits.

The Shakti Vahini judgment also requires cases relating to honour crimes to be tried before the designated court/fast track court earmarked for that purpose. “The trial must proceed on day to day basis to be concluded preferably within six months from the date of taking cognizance of the offence,” the judgment reads.

The freeing of the accused in the Miryalguda honour crime may offer lessons on how not to investigate and institute criminal proceedings against the accused, and strengthen the existing legal provisions to plug any loopholes. The high court made no reference to the Supreme Court’s judgment in Shakti Vahini because it did not have to (as it was dealing with a challenge to the application of a preventive detention law). But there is sufficient reason for civil society to ponder whether it points to plausible loopholes in the law.

One such is the denial of the right to implead by the victims or their relatives in a challenge to the preventive detention of the accused. The high court may well be correct in its conclusion that there is no basis to their preventive detention. But the question is whether it should also deny the right to hear the relatives of the deceased. On this limited issue, the Supreme Court’s intervention, if there is an appeal, makes sense.

The state government ought to throw light on whether it could have prevented the incident, in terms of the Supreme Court’s judgment in the Shakti Vahini case. If so, whether it had taken departmental action against the police officials first for their failure to prevent it, despite having prior information, and secondly, for botching the case by foisting the Preventive Detention Act against the accused without application of mind.

Indian Army Finds ‘Mysterious Footprints’, Assumes a Yeti is Around

A study published in 2017 suggested that the yeti of speculation could in fact be a brown bear.

New Delhi: In a rather surprising declaration, the Indian Army has claimed that it saw “mysterious footprints” while on a mountaineering expedition – belonging to none other than the “mythical beast ‘yeti'”.

In a tweet, the public information branch of the army has attached photographic proof of this sighting, including one of ‘footprints’ in the snow in a neat, straight line (almost as if this ‘mythical beast’ was hopping on one leg or practicing the catwalk).

The abominable snowman, as the yeti is also sometimes called, certainly isn’t a figment of the Indian Army’s imagination. It has been part of popular folklore in the Himalayas for generations. There are stories galore of this creature terrorising mountaineers, campers and animals. Many have spent years of their lives obsessing over what it could be and where its home is.

According to Rajat Pandit, a journalist with the Times of India, the army says it has the requisite evidence to prove the footprints belong to a yeti. According to other sources, the full note in which this claim was embedded is as follows:

Ladies & gentlemen,
• The story is based on physical proofs of on the spot narration, photos and videos.
• We got the inputs about 10 days back and yet we held on to it. Please do have a look at photos and videos (getting full tomorrow) that may surprise you.
• But then we decided that there are photographic evidences which match with earlier theories.
• Tweeted as we thought prudent to excite scientific temper and rekindle the interest. Some of us who reject the story, surely shall have a definite answer to the evidences.
• As they say nature, history and science never write their final story.

Is the Indian Army justified, then, in thinking that it has spotted this mythical creature’s footsteps after a long hiatus?

Not quite, and here’s why.

Also read: Searching for the Abominable: Is It a Man? Is It an Ape? It’s a… Bear?

In late 2017, a study published in Proceedings of the Royal Society B suggested that the yeti of speculation could in fact be a brown bear. So far, that analysis – which Janaki Lenin detailed in this article for The Wire – remains the most convincing of the many theories that have been advanced. It was based on samples collected from people living in Nepal’s Upper Mustang, from the famous mountaineer Reinhold Messner, and from museums. Lenin wrote then:

Most of the yeti samples belonged to two bear species: the Himalayan brown bear and the Tibetan brown bear. The hand belonged to an Asian black bear. Only the tooth from the Nazi trophy didn’t belong to a bear. It came from a less exotic source: a dog.

It is unclear at the moment what the source of the footprints the army personnel spotted is. But given how much research has gone into trying to determining what exactly this creature is, it is strange that the Indian Army only wanted to quote one ‘source’ – the urban myth itself – in its efforts to “excite scientific temper”.

While most people on Twitter found this amusing, if not on the verge of the ridiculous, one of Modi’s own chowkidars had a different bone to pick.

BJP leader and former MP Tarun Vijay wasn’t upset that the army wasn’t keeping itself up to date on scientific research. He just thought that calling the yeti a ‘beast’ was unfair, perhaps even anti-national.

Predictably, others on Twitter were less impressed by this ‘discovery’, although they did like the opportunity to have a laugh.

Listing of Masood Azhar as Global Terrorist by UN Will be ‘Properly Resolved’, Says China

China has accused the US of scuttling progress to resolve the issue by taking it to the UNSC and insisted that it should be resolved at the 1267 Committee.

Beijing: China said on Tuesday that the vexed issue of designating Jaish-e-Mohammed chief Masood Azhar as a global terrorist by the UN will be “properly resolved” but did not give any timeline, days after Chinese President Xi Jinping met Pakistan Prime Minister Imran Khan in Beijing.

China put a technical hold in March on a fresh proposal to impose a ban on the head of Pakistan-based JeM which claimed responsibility for the deadly Pulwama terror attack. It was for the fourth time, China has blocked Azhar’s listing as a global terrorist by the UN.

“I can only say that I believe that this will be properly resolved,” Chinese foreign ministry spokesman Geng Shuang told a media briefing here.

He was responding to questions on media reports that China has reportedly consented to lift its technical hold on a fresh proposal moved by France, the UK and the US to list Azhar under the 1267 Al Qaeda Sanctions Committee of the UN Security Council.

The US, the UK and France this time stepped up the pressure on Beijing by taking the issue directly to the powerful UN Security Council (UNSC).

Though China can exercise its veto power as a permanent member of the UNSC, Beijing has staunchly opposed the issue to be taken to the apex UN body as it has to publicly explain its stand on its reservations to list Azhar, whose group JeM has already been designated as terror outfit by the UN, before exercising its veto.

Also Read: During Visit to China, Indian Foreign Secretary Shares Evidence on Masood Azhar

China has accused the US of scuttling progress to resolve the issue by taking it to the UNSC and insisted that it should be resolved at the 1267 Committee whose proceedings are not publicised.

“Regarding the listing issue in the 1267 Committee, we have expressed our position many times and I just want to stress two points,” Geng said answering a number of questions on Azhar’s issue.

“First, we support the listing issue being settled within the 1267 committee through dialogue and consultation and I believe this is the consensus of most members. Second, the relevant consultations are going on within the committee and has achieved some progress. Third, I believe, with the joint efforts of all parties, this issue can be properly resolved,” he said.

On reports that China would lift its technical hold on May 1, he said, “on the listing issue, China is still working with the relevant parties and we are in contact with all relevant parties within the 1267 Committee and I believe with the joint efforts of all parties, this will be properly resolved.”

Asked about the recent visit of Indian foreign secretary Vijay Gokhale to Beijing during which he held talks with Chinese foreign minister Wang Yi as well as New Delhi shared technical evidence of JeM’s involvement in the Pulwama terror attack, Geng reiterated that China is still working with the relevant parties.

“I believe with the joint efforts of all parties, this will be properly resolved,” he said.

Efforts to resolve Azhar’s listing issue gathered momentum last week with the visit of Imran Khan to Beijing to attend China’s 2nd Belt and Road Forum (BRF) which was held from April 25-27.

During the visit, Khan held talks with Xi, besides meeting Premier Li Keqiang and vice president Wang Qishan during which India-Pakistan tension following the Pulwama terror attack as well as listing of Azhar reportedly figured.

An official statement of China issued after Xi-Khan meeting on Sunday said the Chinese president had expressed hope that Pakistan and India can meet each other halfway and improve their relations.

Both leaders also exchanged views on the situation in South Asia.

(PTI)

Rhetoric Aplenty on ‘Foreigners’ in Assam but Neither State nor SC Has Viable Solution

Insisting on deportation when this is not possible in the absence of a state willing to accept the deportees is clearly a dead end.

New Delhi: In a stand that has rightly been criticised for ignoring constitutional and humanitarian considerations, the Supreme Court last week rebuked the Assam and Central governments for failing to deport individuals who have been declared ‘foreigners’ by citizenship tribunals operating in the state.

But beyond the obvious questions of law and morality, the court’s testy observations are a reminder of the dead end which two decades of policy driven by expediency and rhetoric rather than practicality have taken the Central and state governments.

More than 900 ‘declared foreigners’ have been lodged in detention centres across the state, many of them for years. In the absence of a country willing to take them, the foreigners cannot be deported. It was in response to a PIL questioning their indefinite incarceration – under pathetic conditions – that the Assam government had told the court it was considering their conditional and “monitored” release. The PIL has been filed by rights activist Harsh Mander. 

Also Read: SC Angry With Assam Chief Secy’s Proposal to Release Undocumented Immigrants

Responding to Assam chief secretary Alok Kumar’s proposal – and the fact that only four persons have been deported out of the one lakh declared foreigners by tribunals so far – the bench headed by Chief Justice Ranjan Gogoi said: “You (state government) have failed to catch illegal migrants in the state as more than one lakh foreigners are living in the state but the government has managed to detain only over 900 of them… These foreigners have mixed with the local population and they might have voted in the Lok Sabha elections.”

In 2005, the court reprimanded the Centre for “failing to do its duty”and asked it  to initiate a dialogue with Bangladesh to deport undocumented immigrants who entered Assam after March 24, 1971 – the cut-off date agreed in the Assam Accord of 1985.

In 2014, the SC also asked the Assam government to increase the number of tribunals from 36 to 100 to speed up identification of more than three lakh cases of suspected foreigners (doubtful or D-voters) in the state. The government did so over the course of time. But in the absence of any agreement with Dhaka, there is no clarity on where those declared foreigners are to go.

Conditional release

The Assam government’s suggestion to consider the conditional release of foreigners in detention centres came in response to court’s April 9 order to propose measures to avoid endless incarceration of the detainees “after a full and complete discussion with the concerned authorities.” On April 25, the state suggested that it would set up a five-member committee led by the additional chief secretary to consider petitions of conditional release of foreigners detained for more than five years.

“The committee shall recommend conditional release on the basis of the length of detention, conduct of the detenues, existence of criminal proceedings,” the affidavit said, adding that priority would be given to the elderly, the infirm, women and children up to age 14. The detenues will have to furnish two Indian sureties and a bond of Rs 1 lakh each as one of the conditions for release. They will have to provide biometric data and regularly report to the local police station.

Amiran Bibi of Assam shows documents to prove Indian citizenship of her husband, who is in the Goalpara detention centre for being a ‘foreigner’ while his siblings are Indian citizens. Credit: File/PTI

A tacit admission

The Narendra Modi government, through that affidavit by the BJP-led state government, has tacitly admitted that it doesn’t intend to pursue the issue of deportation with the Bangladesh government.

This is in marked contrast to the BJP’s poll season rhetoric on foreigners in Assam. The party has whipped up the ‘ghuspetia’ (infiltrator) bogey, projecting all those left out of the final draft of the National Register of Citizens as only Muslims and all as ‘illegal immigrants’. This tactic may come in handy for the party as it is counting on religious polarisation to help drive votes in its favour.

Also Read: The Death of Amrit Das and the Search for Foreigners in Assam

When it comes to making hard calculations on foreign policy, however, the Modi government knows the Sheikh Hasina government is the most ‘India-friendly’ one Bangladesh has seen in years. New Delhui knows that raising the issue of mass deportations would give a handle to the right wing Islamist forces increasingly gaining ground in that country and undermine the Awami League leader.

In 2014, Modi took on the Congress for not being able to “throw out illegal Bangladeshis” and promised to do so if elected. But his position changed once he came to power. In October 2018, H.T. Imam, the political advisor to Hasina, said, “Indian Prime Minister Narendra Modi personally assured our premier that those who are excluded from the list under the NRC exercise will not be sent to Bangladesh.”

Himanta Biswa Sarma’s admission

Just three days before the Assam chief secretary’s submission to the Supreme Court, BJP strategist for the Northeast Himanta Biswa Sarma hinted as much while speaking to India Today TV. “People have realised that sending them back (to Bangladesh) is difficult,” he said.

Assam is home to several small ethnic communities, some numbering just a few thousands. Successive waves of migration through the virtually open border with Bangladesh have incensed the state’s indigenous communities. Clause 6 of the Assam Accord speaks of providing constitutional protection to “Assamese people”. The government is yet to define ‘Assamese people”.

In the run-up to the 2019 Lok Sabha polls, the Modi government did name a ‘high-level committee’ to look into that clause of the Accord. However, all the members recused themselves even before the committee met, aggrieved by the government’s decision to give Indian citizenship to undocumented Hindu Bangladeshis residing in the state.

In his India Today TV interview, Sarma said, “We are trying to see if detection can be done; their (undocumented immigrants’) names can be deleted from the voters’ list and then you go on negotiating with the government of Bangladesh. What we are asking for is that those whose names would not be in the NRC, they should be given a non-citizen status; health and education should be given, whatever human rights he/she is entitled to, but don’t give right to land, don’t give voting right.” On asked about a time limit for negotiations with Bangladesh, he said, “It will take years.”

The senior BJP leader’s statement needs to be read with the BJP’s poll promise to revive the Citizenship Amendment Bill granting citizenship to undocumented Hindu Bangladeshis who entered India before December 2014. Thus, it is clear that if the BJP government returns to power, only the Muslims left out of the NRC will be stripped of their citizenship.

Observers in Assam were appalled by the casual manner in which Sarma referred to all Muslims of Bengali origin by saying, “some came in the ’30s, ’40s, some came in the 90s”. He seemed to ignore the fact that those who came before March 1971 are Indian citizens by law. Sarma’s remark is one more indication of the BJP’s intention to play out a communal campaign by using the outcome of a court-monitored process.

Senior Assam minister and BJP leader Himanta Biswa Sarma. Credit: PTI

Following due process

Mander’s PIL has acquired added salience on account of  widespread allegations that the state administration did not follow due process before forwarding cases to the tribunals and that several judgments are ex parte. Most ‘foreigners’ get to know about the judgments only after a midnight knock on their door by the border police to take them to the detention centres. The Supreme Court itself has given relief in the form of bail to several such persons till now.

Also Read: Detention Centres in Assam Are Synonymous With Endless Captivity

Moreover, most declared foreigners have siblings and parents who are Indian. Proof of this is the fact that every day, a large number of people throng the ‘foreigners’ detention centres to meet the inmates there. In 2018, the body of Jabbar Ali, housed in the Tezpur detention centre, was not sent to Bangladesh, but handed over to his Indian family. Earlier this month, the body of Amrit Das, a declared foreigner held in the Goalpara detention centre, was also handed over to his Indian family. Often, it is due to the lack of appropriate documents that many are detained. That the poor in this country lack documents is true not just of Assam alone. They also do not have the financial resources to challenge tribunal orders in the higher courts.

Several poor people, after receiving a tribunal notice, have committed suicide. Several have lost hope of leaving the detention centres which, their families say, has affected their mental state. In January, some inmates conducted a hunger strike demanding parole. A first person account of life inside the detention centres and the struggle of their families to get them released was recorded by The Wire in December 2017.

Though they regard the proposed conditions as onerous, rights activists believe the Assam government’s suggestion of conditional release can provide succour to the detenus. One wonders, however, how many will actually be able to raise the required sum of Rs 1 lakh for conditional release.

The Guwahati office of the Bangladesh high commission has been visiting Assam jails to determine who among the foreigners are their citizens. In January, 21 of the 54 Bangladeshis lodged in various jails were deported after completion of their term. The Assam government’s declaration that just four foreigners were deported, therefore, doesn’t include this lot.

So far, the Supreme Court has not taken take into consideration the existence of two sets of ‘foreigners’ in Assam’s jails – the fist set has a country to return to, the other doesn’t.

If the court considers the Assam government’s suggestion of conditional release to be a violation of the Foreigners Act, it is also bound, as Gautam Bhatia has argued, to uphold Article 21 of the constitution. The constitution does not differentiate between an Indian citizen and a ‘foreigner’ when it comes to protecting the right to life and dignity. Insisting on deportation when this is not possible in the absence of a state willing to accept the deportees is clearly a dead end.

The Assamese people have for long demanded that their rights be protected in their homeland. Successive ruling parties have played up this issue to gain political points but failed to find a practical solution. Locking people up indefinitely in detention centres under abject conditions is hardly the answer.