Harsh Mander: ‘Foreigners tribunals are a hoax’

Interview with Harsh Mander, human rights activist.

Published : Sep 25, 2019 07:00 IST

Harsh Mander.

Harsh Mander.

HARSH MANDER , a human rights activist, has been closely involved with people whose names have been excluded from the National Register of Citizens (NRC). In 2018, he visited detention centres in Assam as a Special Monitor of the National Human Rights Commission (NHRC). In his report, he alerted the NHRC to the prospect of Assam facing a Rohingya-type crisis. When the NHRC failed to act on his findings, he quit and released his 39-page report in the public domain, in which he held the state responsible for failing to distinguish between ordinary prisoners and detainees.

Mander also petitioned the Supreme Court for the release of people who had spent many years in detention centres in violation of all international norms. He wanted the Chief Justice of India to recuse himself from the case. The apex court admitted his petition, but the CJI came down heavily on Mander, stating that the questions judges asked during a debate could not be construed as proof of their bias. He removed Mander as a petitioner and the Supreme Court Legal Services Authority argued the case. Shortly after, however, the apex court ordered the release, with certain conditions, of people who had been in detention centres for three years or more. Meanwhile, Mander’s fight on the behalf of the detainees continues. Excerpts from an interview he gave Frontline :

About 1.9 million people did not make it to the final NRC list published on August 31. Soon after, we heard political voices, including that of the Bharatiya Janata Party, against it. Do you think the NRC has proved to be an exercise in futility?

The entire process is riven with politics and a discourse of perception and political mobilisation, and the “othering” of a community. We could not possibly have expected anything different.

Was it not an ethnic issue to begin with?

Yes, it was. Today, there are three sets of players, and all of them are unhappy with the NRC. The entire agitation was built on the premise that there are millions of illegal immigrants in India from Bangladesh. Those agitating were agnostic, never communal. So they were equally opposed to Hindu as well as Muslim Bengali immigrants. The numbers they spoke about were 8 million, 15 million and so on. After the process, which was so arduous and had so many problems, only 2 million immigrants have emerged. And even in this figure, there are 4 lakh people who have not appealed to Foreigners Tribunals. These are presumably people from other parts of the country who do not need to be on the NRC. So we are looking at 1.5 million people. It means that the entire basis of the agitation, that the Assamese ethnic people would be submerged with the influx of people, was not true .

The entire exercise did not make sense not because it was done badly, but because the BJP is obviously a communal party and there was a deliberate “othering” of Muslims. So, although we do not have official figures, it is clear that a larger number of Hindus have failed to make it to the NRC than Muslims. For the BJP, then, to disenfranchise those who have not made it to the NRC will be political suicide. They are unhappy. For the BJP and the RSS [Rashtriya Swayamsewak Sangh] to reject the process that their own governments at the Centre and the State have driven and call it biased is extraordinary. The Assamese of Bengali origin are the ones who have the most reason to be satisfied with the outcome because it endorses what they have been saying—that the Bengali-origin Muslims are the people who came here when one could legally come here and settle down. These are their descendants. There is no hue and cry over the sufferings of the past six years. Also, there is no closure to the process, so they are still unhappy. That is why all three parties are unhappy, but for different reasons.

At the same time, the Union Home Minister has called these people infiltrators. Don’t you think these people are, at worst, just economic migrants or undocumented migrants?

Yes, that is the emotive language of politicians. Also, the word “infiltrator” has a different emotive imagery from a refugee. For them to use the word “refugee” for some people here, and not use it for the Rohingya who have come here under difficult circumstances makes it clear that it is a selective, communalised vocabulary.

Also, the NRC is not the only story. There is an NRC-plus story, involving the Citizenship Amendment Bill and the threat to carry it to every part of the country. Despite the outcome in Assam, the claim that India is being flooded by Bengali Muslim “infiltrators” persists. If at all there are so-called infiltrators, their numbers are not of the magnitude imagined or claimed. If at the end of the exercise, there are 3 lakh people who do not have proof of citizenship, one has to ask, was the process worth it?

I f the entire exercise is being questioned, why does the BJP insist on it in the name of re-verification?

It is more about the BJP’s pet subjects, like the fate of Article 370, the Uniform Civil Code, the construction of the Ram Mandir, and getting rid of “infiltrators”. It is just a carrying forward of their politics, the constant “othering” of a section of Indian citizens. But most of all, it means the death and the killing of our Constitution. The Constitution talks of all Indians as equal, irrespective of religion. The Citizenship Bill runs contrary to this.

You visited the detention centres as a Special Monitor of the NHRC. Are they any different from the usual jails?

They are worse. The detention centres are like a jail within a jail. They do not even have the usual provisions of jails like a television, a newspaper or a library for inmates. In a jail you can meet family once a week. Not so here. They do not have the right to work, right to parole, the families are separated, the husband in one jail, the wife in another, the children outside.

I believe there is a peculiar human rights tragedy with some of the children being regarded as Indian citizens but not so their parents.

Actually, it is going to be more complicated because the 2004 Amendment [to the Citizenship Act, incorporating Section 6A] is a terrifying one. What it says is that if you are born in India you will be an Indian citizen, provided neither of your parents is a so-called illegal immigrant. Once a person is declared an illegal immigrant, his or her progeny will also be declared illegal immigrants.

What happens to children when their parents are in a detention centre?

It is absolutely frightening. The provisions of the Juvenile Justice Act which are supposed to give them protection are completely disregarded. A child has to be protected regardless of the parents’ nationality or religion. It is also felt now that the foreigners tribunals are nothing more than a hoax. They are not qualified to sit in judgment. They are said to have special targets to meet, at the end of the month, at the end of the term. The foreigners tribunals are no doubt unprofessional. They are appointed by the State government, have no security of tenure and have to do the State government’s bidding. They are given Rs.90,000 a month, and they are given a lot of power to decide who is a foreigner and who is not. You can well imagine their situation. Their desire to fall in line with the government is understandable. By all accounts, there are informal targets, and good performance means how many have been declared foreigners from the number of people who appeared before them. It is a human tragedy. People are reduced to mere statistics.

The Foreigners Tribunal might declare you to be a foreigner while you could be an unlettered, undocumented Indian. Is it not a violation of Article 21 of the Constitution, the right to life and liberty?

I believe everything that was done, or is being done, is in contravention of a number of constitutional provisions. Of course, the tragedy of it all is it is being done under the watchful eye of the Supreme Court, and facilitated by it.

You approached the Supreme Court on the rights of detainees and had requested the Chief Justice to recuse himself from the case. The court admitted the petition, although the Chief Justice refused to recuse himself. I understand you ceased to be the petitioner in the case.

They passed the first order, agreeing to the release of the people with certain conditions. The court said that those foreigners who had spent over three years in detention centres in Assam could be released on two sureties of Rs.1 lakh each. However, the released persons have to report to local police stations to ensure that they do not abscond. The court also stated that the detenues must provide their biometrics to the detention centre authorities, and the address where they would be available. The ruling corrected a violation of international norms of incarceration where a person can be so detained for three months, or a maximum of six months. If the authorities fail to furnish evidence, the detainees have to be released. The conditions imposed on persons released from detention centres are tough, but it is a better life than the one inside the detention centres.

Has the Supreme Court’s proactive role helped the issue?

No, the process throughout has only worsened the issue. The Supreme Court turned around the burden of truth and made it the responsibility of the common man to furnish the proof of his citizenship. He was looked upon as a foreigner until he proved his citizenship. It should be the other way around. The court, in effect, took on the role of the executive in this. If it acts as the executive then who do you appeal to against the decisions of the Supreme Court? Does one go back to the same court?

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