People declared “foreigners” are not entitled to any welfare schemes and their properties should be confiscated, the Union government has argued in court.
Assistant Solicitor General RKD Choudhury made this submission on behalf of the Centre in the Gauhati High Court last week. The court is examining the entitlements of a person declared a foreigner by Assam’s foreigners’ tribunals, quasi-judicial bodies that adjudicate on matters of citizenship in the state.
The court embarked on this line of enquiry while hearing a petition by a person declared a foreigner by one such tribunal.
People declared foreigners were only entitled to protections under Article 21 of the Constitution, Choudhury argued. The provision guarantees the protection of life and personal liberty to every person, citizens and foreigners alike.
Welfare schemes of the government were not among the entitlements that Article 21 provided, said Choudhury. “These schemes relate to the citizens only,” the official added.
Choudhury also advocated for the annulment of property rights of people declared as foreigners. A declared foreigner’s ownership of land “is contrary to the law of the land and that has to go,” he said.
Such a person’s property ought to be “reverted back to the state not to the person who has sold it because the person who has sold it, the taxes is paid and he has earned out of it,” Choudhury submitted before the court.
A detour
The matter of the extent of rights and entitlements of “declared foreigners” first came up in the court on February 22. It was hearing a writ petition filed by Mohammad Mainul Haque, a resident of Jaribor village in Assam’s Morigaon district.
Haque, an agricultural labourer, was declared a foreigner by a tribunal in Morigaon on May 23, 2016. The tribunal had ruled that Haque had failed to establish that he was indeed the son of the man he was claiming to be.
Haque challenged the tribunal’s order, but the Gauhati High Court on March 7, 2018 upheld the ruling.
More than four years later, in September, 2022, the same tribunal summoned Haque again referring to a second complaint against him by the border police, a special wing of the Assam police designated to detect “illegal immigrants”.
When he appeared before the tribunal later that year in October, the tribunal noting that he had already been declared a foreigner directed the district police to detain him.
Haque was arrested immediately and remanded to judicial custody.
Thereafter, Haque through his lawyer Zubair Hammad approached the high court once again seeking relief on the grounds that he could not be detained in a second case. The detention, Hammad contended, was “illegal” as the high court in 2018 had already directed the district police to follow up on its order declaring Haque a foreigner.
In Assam, people declared foreigners are lodged in “detention centres”. Officially referred to as “transit camps”, they are supposed to be a pit-stop before deportation.
A new question
However, the bench comprising Justice Achintya Malla Bujor Barua and Justice Robin Phukan tended to take a broader view of the matter. Given that deportation in most cases remained outside the realm of possibility, the bench said there should be an appraisal of the “rights available to a declared foreigner….” and what are the acclaimed rights he would not be entitled under the law”.
On February 22, the bench urged advocates HRA Choudhury and D Ghosh – who often represent people caught in citizenship tussles – to provide their arguments on the matter.
Simultaneously, it also asked Assam’s additional advocate general and additional solicitor general Choudhury to make their submissions.
Choudhury did not respond to our queries on the matter.
‘Aggression with a purpose’
On April 14, as the matter was discussed in court, Choudhury made a strong case for the curtailment of the rights of “declared foreigners”.
Only the bare minimum protections applicable under Article 21 should be afforded, Choudhury argued. They could not be given other rights that citizens enjoyed, he added.
Choudhury also went on to refer to undocumented migration as “aggression with a purpose” which is a “ploy to take away this part of the country to another” and spoke of the “increase in Muslim population” in the state.
The other side, however, called for a wider bouquet of rights, saying that declared foreigners also ought to be allowed the entitlements under Article 14 of the Constitution which says that the state “shall not deny to any person equality before the law”.
Among the subjects being discussed in the court were health, education, food, and livelihood for those declared foreigners.
‘Basic human treatment’
Justice Barua, on his part, declared foreigners “if they have to remain in this country for any period of time, they should be given basic human treatment”.
“That we should not take away,” said the judge in an oral remark. “But in the guise of giving human treatment that does not mean you encroach upon the rights that you are otherwise not entitled.”
On the matter of education, the judge said, “Give them the education….if he is a good asset to the country use them also. If we have educated illegal migrants, it will be good for us.…You can educate them and make them skilled and allow them to go back to other country.”
