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

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.

Following this, in March 2018, Seikh filed a writ petition before the Gauhati High Court and requested the court to quash the two cases registered against him and set aside the tribunal’s orders. Seikh told the court that he missed his tribunal hearings because his lawyer had not informed him about the proceedings and that his lawyer withdrew because he could not pay her further after the initial payment of Rs 4,000. He reiterated that the two inquiries were fabricated and the fingerprints produced before the tribunal did not belong to him. In April 2018, the high court set aside the tribunal’s order but ordered a retrial before the same tribunal and asked Seikh to produce evidence supporting his citizenship.

Seikh’s retrial before the Foreigners Tribunal began in May 2018. Sauradeep Dey, Seikh’s counsel, told me that the proceedings were wrong at their very inception. He said the principle of res subjudice—which prevents the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations—should have been applied to the two cases. “The second case should never have been registered by the tribunal against Seikh. It is against the natural-justice system,” Dey told me. Apart from res subjudice, Seikh’s case also falls under the principle of res judicata—which prevents a court from adjudicating on a case that has already been determined by another court with a similar jurisdiction.

In April 2018, a Gauhati High Court bench, headed by Ujjal Bhuyan, had upheld the view that an individual can be subjected to more than one reference even after being declared an Indian by a tribunal previously. Bhuyan was dealing with around two dozen pleas by petitioners who had been accused of being foreigners by either different district police units or by different tribunals. Bhuyan held that the principle of res judicata did not apply to Foreigners Tribunals. In May 2019, however, the Supreme Court ordered that res judicata would apply to the tribunals. The order, although, was given in a different context. The apex court was deciding whether a person included in the NRC but later found to be a foreigner by a tribunal would be considered as Indian or not. The apex court had ordered that the tribunals’ order would be final. Both the judgements, however, made no mention of a situation where, like Seikh, more than one reference had been made by the same inquiry officer against the same individual. Consequently, it is unclear how the two court’s seemingly contradictory orders would apply to Seikh’s case.

During the retrial Seikh submitted 14 documents in his defence. The documents included a copy of his grandmother’s certificate from the first National Register of Citizens, which was published in 1951, and a voter list of his village from 1970, which had his grandfather’s name on it. In 1988, Seikh’s grandmother, Sabiran Bibi, was declared an Indian by another tribunal based on these two documents. In Seikh’s case, however, the tribunal called these two documents inadmissible without giving any explanation for it.

In October 2018, Seikh submitted a certificate from the office of NRC state coordinator, which proved that his and his family’s names were there in the second list of the draft, updated NRC, published in July 2018. In his written submissions to the tribunal, Seikh argued that the NRC “has a procedure of verification of claims including family tree. This tribunal is also expected to function in consonance with the procedure of the NRC.” One of the criteria employed by the NRC authorities while determining citizenship claims was to establish parental linkage with an ancestor who possessed a valid proof of residence in the state from before March 1971, as per the Assam Accord of 1985.

Accordingly, Seikh had produced electoral rolls with his and his father’s name on them from 2005 and 1985, respectively, till 2017. He also submitted a land document that showed that his father had transferred his land to Seikh’s mother in 1979. The tribunal, however, refused to accept any of these documents, too. In the order, the tribunal member wrote, “The documents submitted, exhibited and projection made thereof are based on sole declaration of the opposite party and without any corroboration. It’s not trustworthy and reasonable to accept those declarations.” The tribunal member did not explain why the production of an official document was not sufficient for it to be considered trustworthy.

Dey, who is associated with Human Rights Law Network—a legal non-profit that has been taking up cases of suspected immigrants pro bono—has been handling Seikh’s case since the first appeal before the high court in March 2018. He told me, “No objection was raised on the admissibility of the documents such as electoral rolls and land document.” He added, “I do not know why exactly the member hadn’t found them trustworthy.”

During the retrial, Seikh had also filed four fresh petitions before the tribunal for additional evidence. One of them was a request to issue a notice to the election authority to prove the authenticity of the electoral rolls. Seikh had submitted digitally certified copies of the electoral rolls, which are issued by the election authority, although they did not bear physical signatures. The tribunal rejected Seikh’s plea on the grounds that “as per section 9 of the foreigners act, it is the duty of the opposite party to prove his case and that the tribunal doesn’t issue any notice to any authority to prove any document.” The tribunals are governed by the Foreigners Act, 1946 and the Foreigners Tribunals Order, 1964. Election authorities issue electoral rolls and no individual can get originals unless the authorities are ordered to do so by a judiciary body such as a tribunal. Seikh had argued before the tribunal that under the 1964 order, a tribunal had the powers of a civil court to summon and enforce the attendance of any person for examination and also require the discovery and production of any document. Nevertheless, a tribunal member rejected the plea.

Seikh’s second petition sought time to adduce evidence of his father, who could not appear on the slated day due to an “unavoidable reason.” Dey had informed the tribunal that there were unavoidable circumstances due to which Seikh’s father could not make it and that it was not a deliberate oversight. Dey also argued that a person was entitled to all safeguards, both substantial and procedural, to prove his nationality as per the Supreme Court judgment in Sarbananda Sonowal vs Union Of India, and therefore Seikh should be given time to produce his father as a witness. The tribunal rejected this plea, too, without providing any reason.

Of the last two petitions, one sought the production of the inquiry officer, Kalita, at the tribunal for cross-examination, and the second requested permission to make amendments in the written statement filed by Seikh in May. Seikh was allowed to correct the date of his land document, but the tribunal did not allow any other amendments to his statement. Dey had argued that it was important to examine Kalita because his investigation was not fair. The tribunal rejected this petition as well. Subsequently, in December 2018, the tribunal declared Seikh a foreigner again—on the grounds that he was unable to establish his parental linkage with his grandfather—and ordered his detention and deportation immediately.

The vicious trial came full circle when Seikh had to approach the high court again, in May 2019, to set aside the second order from the tribunal and quash the two cases, making almost the same pleas he had made before the same court a year ago. The case has been admitted, though the hearings are yet to start.

In his latest writ petition before the high court, Seikh has outlined his version of events regarding his encounter with the policemen of Bhangagarh police station, which Kalita was attached to. According to Dey, Seikh did not remember the exact day or date the incident happened. In court, Dey submitted that, “The petitioner [Jalal Seikh] had come to Guwahati sometime in 2014 or 2015 for livelihood purposes and had worked as a rickshaw puller in and around the Bhangagarh area of Guwahati. One day, he had dropped a passenger inside the campus of the Guwahati medical college and hospital when he was stopped by a police person of the Bhangagarh police station and taken inside. He was told that it is not permissible to bring rickshaw inside the campus of the medical college and had to pay a fine of one thousand rupees.”

Seikh’s petition stated that he went to his native village, Patnarkuti, the same day and returned with his documents the next day to give them to the policemen. He said he was asked a few questions and then let go. He told the court that he did not give any written statement to Kalita back in 2015 and that his fingerprints were never collected, as Kalita had claimed in the inquiry reports. He also said he came to know about the cases filed against him in late 2016, when he received two notices from the tribunal on 3 and 4 November that year. Seikh also told the court that after the incident at the medical hospital, he eventually returned to Patnarkuti and worked there as a daily wager.

Kalita, however, had claimed that he had two written statements from Seikh when he sent the referrals that sparked the formal investigation into Seikh. One of the statements, which Kalita claimed to have recorded on 16 September 2015, said, “I (Seikh) have come to Guwahati about two years ago. On my arrival, I first worked as a helper to mason of building construction work and then have been maintaining my livelihood by pulling rickshaw. I’m married and my wife, two sons and three daughters are living at village address. I’ve studied up to VIII. I’ve not cast my vote as yet.” The statement said Seikh was asked for his documents by a Border Police personnel while he was plying a cycle-rickshaw. It does not mention where or why the policeman stopped him and asked for his documents. It does not have either Seikh’s signature or thumb impression.

If the documents are to be believed, in a bizarre turn of events, two months later, on 9 November 2015, Kalita came across Seikh in exactly the same circumstances as described by the 16 September statement. According to the second statement, Seikh was pulling a rickshaw when Kalita asked him for his documents. But this statement described Seikh differently. It said, “I (Seikh) have come to Guwahati for about last three years. On arriving here, I first worked as a laborer to a bakery and afterwards started pulling cycle rickshaw… My father, mother and my wife, with four kids, are living at village address … I’ve no school education. I have not cast my vote as yet.” The electoral rolls that Seikh had listed as evidence during the first retrial belie the claim on Seikh’s franchise in both the statements and Seikh also said that he never worked at a bakery.

In the latest petition, Seikh termed the statements recorded by Kalita as “fabricated” and dismissed the subsequent investigation on him. According to the case diaries, Kalita got approval from the DCP for formal investigations on Seikh on 17 November 2015 and 18 December 2015. The first inquiry report, which Kalita claimed to have conducted on 20 December 2015, mentioned Seikh’s temporary address at Tarun Nagar in Guwahati. The case diary stated that Kalita went to Tarun Nagar and recorded the statements of two witnesses—40-year-old Rafique Ali and 32-year-old Ainul Haque. The diary also noted that Kalita interrogated the witnesses and Seikh, but there are no details of what either witness said to him. Seikh has told the court that he does not know Rafique or Ainul. In fact, Seikh said that Kalita did not visit him on the said day and there was no investigation at all.

Notably, the second inquiry report, again authored by Kalita but conducted on 15 February 2016, said that the sub inspector went to Seikh’s home at Chilarai Nagar, and not Tarun Nagar as mentioned in the first report. Kalita wrote that he did not find Seikh at his home that day but recorded the statements of two witnesses—Md Alauddiun and Sushanta Sarkar. Kalita said that Alauddin was the house owner of the place where Seikh reportedly lived while Sarkar was the one who rented out his rickshaw to Seikh. Again, Seikh told the court in his first appeal last year that he had lived in Guwahati for few days at the house of one Shankar Rai, whose cycle he rode, and did not know Alauddin or Sarkar.

Seikh told the court that he believed the inquiry officer proceeded against him by forging documents because he belonged to the economically weaker section of the society and could not defend himself. Seikh pleaded before the court that the way he had been treated by the state machinery over the last four years was humiliating.

There is no data available that reveals the number of accused who might be facing double incrimination for being a suspected foreigner before the Foreigners Tribunals of Assam but during my interaction with over two dozen lawyers in the state, I was told that Seikh was not alone. They said they had seen hundreds of such cases in their careers.