[This note has been authored by Shuchi Purohit]
Foreigners’ Tribunals are quasi-judicial bodies set up by the Central Government to determine whether a person is a foreigner or not under the Foreigners’ (Tribunals) Order, 1964, created under the Foreigners Act, 1946. The Executive appoints judicial members to adjudicate cases before FTs. These tribunals differ from other tribunals or courts of law in India in terms of procedure, selection criteria of judicial members, examination of evidence, absence of an appellate body, etc. Presently, as many as 1.4 lakh cases of suspected foreigners are pending before 300 tribunals functioning in Assam.
History and Establishment of Foreigners’ Tribunals
The primary aim behind setting up foreigners’ tribunals was to avoid arbitrary deportation. The Foreigners Act was first enacted in 1864, to limit the mobility of groups that the colonial British government saw as “disorderly or alien.” The Foreigner’s Act, 1946, which was adopted by independent India, incorporated this objective as well, in a situation where borders were porous and in flux, especially along the eastern borders. However, the Foreigners Act did not incorporate any mechanism for the identification and detection of foreigners.
The 1961 Census Report focused on preparing data on irregular immigrants. 2,20,691 ‘infiltrants’ were found in Assam due to migration from East Pakistan. The Border police thereafter misused this data as they started detecting and deporting foreigners without any judicial process. The Ministry of Home Affairs then, through powers granted under Section 3 of the Foreigners Act, passed the Foreigners (Tribunal) Order, 1964, so that no person would be deported without a hearing.
In 1983, the Government of India passed the Illegal Migrant (Determination by the Tribunal) Act, 1983 (‘IMDT Act’). The objective of this Act was to determine foreigners who entered India after 25 March 1971, according to Section 6A of the Citizenship Amendment Act, 1986. Such individuals were ineligible to obtain Indian citizenship and were detected and deported in accordance with the IMDT Act. The IMDT Act differed significantly from the Foreigners Order in one respect: it placed the burden of proof for demonstrating that the individual is a foreigner upon the state. It also defined the eligibility criteria to be a judicial member of the tribunal. An option of the review was available in case a difference of opinion arose among the judicial members.
However, there was growing turmoil in Assam as the leaders of Assam Agitation believed that the IMDT Act was unsuccessful in detecting and expelling foreigners and the issue of irregular immigration remained unresolved. Hence, in 2005, in Sarbananda Sonowal v. Union of India, the Supreme Court declared the IMDT Act as unconstitutional, as it found the procedure laid down in the Act to be “time-consuming”. The Court cited two reasons for its decision. First, that the Act failed to protect the people of Assam from external aggression by the migrants, which is the prerogative of the central government. Second, that in order to uphold national security, there was a need for identification of these foreigners to expedite their deportation. The Court struck down the IMDT Act as unconstitutional, and reverted to the Tribunal regime established under the Foreigners Act and Order, thus shifting the burden of proof to the individual suspected to be a foreigner.
How do Foreigners’ Tribunals receive Cases?
There are three modes through which the Foreigners’ Tribunals receive cases: references from the Border Police, the Election Commission of India, and the National Register of Citizens. There are presently 1.9 million people who are excluded from the final draft of the NRC, waiting for their fate to be decided, as the process for their claim to citizenship before FT is yet to be started.
Almost every district in Assam has Assam Police Border personnel stationed, who identify and investigate alleged foreigners based on their discretion. Cases identified by the Border Police are referred to FTs for final adjudication. However, civil society organisations argue that this power is often abused by the Border Police as they do not follow any investigatory guidelines to identify alleged foreigners, as laid down by the Gauhati High Court.
Individuals can also be identified as foreigners by the Election Commission. In 1997, the ECI had identified around 2,30,000 voters as ‘doubtful,’ whose cases were then referred to FTs for adjudication.
Finally, the National Register of Citizens in Assam is an exercise identifying all Indian citizens in the state. Individuals excluded from the list are identified as foreigners, who will have to prove their citizenship before FTs. In 2019, the final NRC list was released, which excluded around 19 lakh people from citizenship. In May 2021, the NRC Coordinator had filed an application before the Supreme Court seeking re-verification of the NRC, stating that some ‘issues of substantive importance’ cropped up while preparing the rejecting slips, thus delaying the process.
Lapses of Foreigners’ Tribunals in India
India is a party to the International Covenant on Civil and Political Rights (ICCPR) and is hence bound by its treaty obligations. Article 14(1) of ICCPR states that every person is entitled to a “fair and public hearing by a competent, independent and impartial tribunal established by law.” The Foreigners Act falls short on each criterion set by ICCPR, as it fails to establish standardised criteria of eligibility for its members.
Scholars and civil society organisations have raised concerns regarding the independence and impartiality of these tribunals. The appointed members of the Foreigners’ Tribunal do not have any specialized training in law or adjudication. This is evidenced by the Gauhati High Court’s circular seeking to appoint senior civil servants as members of the Foreigners’ Tribunal, as opposed to persons having prior adjudicatory or legal experience. Moreover, membership with the Tribunal is renewed or terminated depending on the conviction rate. Thus, members of the Foreigners’ Tribunal would be incentivised to declare more people as foreigners, to retain their seats. This leads to an inherent conflict of interest, which falls short of the requirement of impartiality.
The Act also fails to state the training a member needs to carry out the judicial duties, thus compromising the requirement of competency. In 2015, the training received by the 63 selected members spanned merely four days. Out of those, only two were former or serving judicial officers. Moreover, the Government of Assam has further lowered the threshold of experience required from 10 years to 7 years. The age limit of induction which was previously 45 years, is now 35.
The tribunals are empowered to regulate their own procedures, as provided by the 1964 Order. Civil society organisations have noted that in practice, this power is abused and the tribunals do not provide documents such as written statements, witness depositions, etc., which are necessary for an individual to fairly contest and appeal their case. More than 60% of cases are decided ex-parte, as most individuals do not receive show-cause notices. The Gauhati High Court had stated that since Foreigners’ Tribunals are not civil but rather quasi-judicial bodies, the principle of res judicata does not apply. However, the Supreme Court in Abdul Kuddus v. Union Of India, later overturned this ratio, finding instead that quasi-judicial orders rendered by Foreigners’ Tribunals have civil consequences. Therefore, the doctrine of res judicata would apply. Further, the orders passed by Foreigners’ Tribunals cannot easily be found in the public realm, making the entire process opaque.
The Foreigners Act and Order do not provide for a right to appeal against the decision of a Foreigners’ Tribunal and set up no appellate body. All appeals have to be made to the High Court and Supreme Court. There are various factors such as litigating costs, locations, the prolonged duration of appeals etc. which act as barriers to individuals approaching appellate courts for a review of their decision. Even if they wish to do so, this right has become judicially restricted through the decision of the State of Assam v. Moslem Mandal. The decision states that the tribunal is the final fact-finding body, post which facts cannot be challenged during the appeal. However, facts are the most important aspect of such cases. Lawyers practising in FTs note an alarming difference between the prescribed methods for fact-finding and how facts are actually obtained by the Border Police. The guidelines laid in Moslem Mandal propounded that the referring authority must forward their observations recording their satisfaction in such a manner that demonstrates their application of mind to the facts and circumstances of the case; however, the fact-collection procedure is largely ignored.
The objective of the 1946 Act was to deport legitimate foreigners in the Indian territory, rather than to determine the citizenship status of the masses to declare them foreigners. The functioning of these tribunals fails to take into consideration the grave risks associated with statelessness. It forces targeted individuals to live in limbo with constant anxiety over their civil and political rights.
- Amnesty International India, ‘Designed To Exclude: How India’s Courts Are Allowing Foreigner Tribunals To Render People Stateless In Assam,’ (2019) <https://www.amnesty.be/IMG/pdf/rapport_inde.pdf>.
- Talha Abdul Rahman, ‘Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam’ VOL 2 NO 1 (2020): STATELESSNESS & CITIZENSHIP REVIEW <https://statelessnessandcitizenshipreview.com/index.php/journal/article/view/141>.
- Sangeeta Barooah Pisharoty, ‘Explainer: What Do the MHA’s Changes to 1964 Foreigners Tribunals Order Mean?’ (The Wire, 14 June 2019) <https://thewire.in/government/foreigners-tribunals-order-mha-changes>
- State of Assam v. Moslem Mandal and Ors. (2013) 3 Gau LR 402.
- Mohsin Alam Bhat, ‘Twilight Citizenship’ (2020) 729 Seminar <https://www.india-seminar.com/2020/729/729_m_mohsin_alam_bhat.htm>.
- Citizens Against Hate, ‘Making Foreigner: Report on NRC Updation in Assam and the Risk of Mass Statelessness’ (2018) <https://citizensagainsthate.org/wp-content/uploads/2019/06/Making-Foreigner.pdf>