A case of double incrimination reveals the chimera of fair trials in Foreigners Tribunals

25 November 2019
35-year-old Jalal Seikh has spent the past three years trying to prove Indian citizenship despite being in possession of legacy data, electoral rolls and land-ownership documents, among others.
Courtesy Jalal Seikh
35-year-old Jalal Seikh has spent the past three years trying to prove Indian citizenship despite being in possession of legacy data, electoral rolls and land-ownership documents, among others.
Courtesy Jalal Seikh

If the investigation reports submitted by Assam's Border Police to a foreigners' tribunal in Guwahati are to be believed, Jalal Seikh is both an eighth-standard dropout and illiterate. He fathered five children and also has only four kids. He came to Guwahati in 2013 and worked as a mason, but also arrived in the Assamese capital in 2012 and took a job at a bakery. The 35-year-old Seikh is a resident of Patnarkuti village in the state’s Dhubri district. In late 2015, Babul Kalita, a sub-inspector in the Border Police, accused Seikh of being Bangladeshi, and sent two separate referrals against him, within a span of two months, to the deputy commissioner of police of Kamrup district, for approval to initiate a full investigation.

Over the next two months, Kalita conducted two parallel inquiries—both the referrals were approved as distinct cases by the DCP’s office—treating Seikh as two different individuals living in different localities in Guwahati. He even claimed to have collected Seikh’s fingerprints for both the references. By March 2016, the then DCP concurred with Kalita’s investigation reports and forwarded them to a Foreigners Tribunal in Guwahati for registration of two cases against Seikh, as a foreigner.

As a result of Kalita’s investigations, Seikh has been declared a foreigner twice by the tribunal—first in November 2017 and then in December 2018—and has approached the Gauhati High Court after both decisions. The court had set aside the first ruling in April 2018 and ordered a retrial, which led to Seikh’s second conviction. Seikh is still waiting for the high court’s decision on his second review petition. His case demonstrates everything that can go wrong with a Foreigners Tribunal, a quasi-judicial body with the power to regulate its own procedure. It shows how a tribunal can put an individual on trial in two cases for the same offence, that each tribunal can chose its own parameters to admit evidence or selectively use the provisions of the evidence act, and more egregiously, that the tribunals could also possibly shield police officials who may have forged evidence to declare a person an illegal immigrant.

On 20 December 2015, Kalita filed the first report, in which he said that he suspected Seikh was Bangladeshi because he could not provide a “satisfactory account about himself” in order to prove his Indian nationality. Kalita’s second inquiry report, dated 15 February 2016, said, “I couldn’t find any trace of Md Jalal Sheikh … the person in question is from Bangladesh and that’s why he has left the place and we couldn’t trace him out.” In December 2016, Seikh filed a written statement with the tribunal which had details of him and his family. None of these details matched the descriptions in Kalita’s initial two referrals.

In his statement, Seikh had stated that he was an Indian and that the inquiry reports were “concocted.” However, in February 2017, Seikh missed the hearing where he was required to provide evidence of his citizenship. In August that year, his lawyer withdrew and left Seikh unrepresented. Seikh missed all his subsequent hearings, the tribunal proceeded ex parte and both the cases against him were tried simultaneously in his absence. In November, the tribunal declared Seikh a foreigner, in both the cases, on the grounds of lack of evidence.

Sagar is a staff writer at The Caravan.

Keywords: NRC Foreigners Tribunal Assam Accord
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