Pre-publication draft September 2023 Increasing evidence has shown that the police rarely if ever conduct meaningful investigations before issuing notices to ‘suspected foreigners’, which require their presence in the tribunals.51 Until October 2019, Assam’s tribunals had declared 129,009 persons as foreigners.52 At least 63,959 of these cases were decided ex parte (in the absence of the litigants),53 presumably because many litigants may not have received notices. The tribunals following the Sonowal case place the burden of proving citizenship on individuals, who are required to produce documentary evidence. Being composed of government-appointed members with no security of tenure, these tribunals enjoy no institutional independence and are often staffed with inexperienced lawyers.54 They have relied on minor errors, such as inconsistencies in dates and spellings, to declare persons foreigners.55 Defendants, most of whom are extremely poor and unlettered, are often under-resourced to engage lawyers, have to travel vast distances to appear regularly for the proceedings, and pay for the travel of witnesses to corroborate their claims. This has had a disproportionate and discriminatory impact on vulnerable groups.56 The complete absence of institutional standards for the police to issue notices and the erratic nature of tribunal adjudication have cast the shadow of irregularization on practically all Bengali-origin and miya citizens of Assam. Doubtful Citizen The discourses of exceptionalism and racialization continue to shape how the language of the law is instrumentalised to obscure the attrition of citizenship status. This is illustrated by the way the courts have dealt with the disenfranchisement of suspected foreigners. At the centre of the immigration anxiety was the loss of demographic majority and hence political power. Consequently, elections were always at the epicentre of the immigration anxiety. One of the most violent incidents at the height of the Assam movement was in 1983, when insurgents massacred thousands of Bengali-origin Muslims in a village in Nellie in response to their participation in elections.57 Electoral anxieties continue to this day, where various political parties, especially the right-wing BJP, continuously assert the loss of political power to Muslims. 51 52 53 54 55 56 57 See Ipsita Chakravarty, ‘Declaring Foreigners: How Assam’s Border Police and Tribunals Form a Secretive System of Justice’ Scroll (19 August 2018) <https://scroll.in/article/890134/declaring-foreigners-howassams-border-police-and-tribunals-form-a-secretive-system-of-justice> accessed 1 March 2022. Parliament of India, Lok Sabha No 17, Session II, ‘Unstarred Question No 3558: Declaration by Foreigners Tribunals’ (Answered on 10 December 2019 by Nityanand Rai, Minister of State, Ministry of Home Affairs) <http://164.100.47.194/Loksabha/Questions/QResult15.aspx?qref=10079&lsno=17> accessed 1 March 2022. Parliament of India, Lok Sabha No 17, Session I, ‘Unstarred Question No 1724: Detention Centres’ (Answered on 2 July 2019 by G Kishan Reddy, Minister of State, Ministry of Home Affairs) <http://loksabhaph.nic.in/Questions/QResult15.aspx?qref=1909&lsno=17> accessed 1 March 2022. Talha Abdul Rahman, ‘Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in the Indian State of Assam’ (2020) 2(1) Statelessness & Citizenship Rev 112. See Designed to Exclude (n 4). See Chetna Sharma, ‘Hijras of Assam: Undocumented “Citizens” in the National Register of Citizens’ (2022) 30(2) Contemporary South Asia 181; Trisha Sabhapandit and Padmini Baruah ‘Untrustworthy and Unbelievable: Women and the Quest for Citizenship in Assam’ (2021) 3(1) Statelessness & Citizenship Rev 236. Makiko Kimura, The Nellie Massacre of 1983: Agency of Rioters (SAGE Publications India 2013). 11 Electronic copy available at: https://ssrn.com/abstract=4111014