Identifying the ‘Outsider’: An Assessment of Foreigners Tribunals in Assam

This post draws on my article “Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in the Indian State of Assam”, Statelessness & Citizenship Review, Vol 2 No 1 (2020), also available on SSRN. Readers should consult the article for full references.

Assam has a long and peculiar history of the movement of people across what are now India’s international borders. There is no credible way to arrive at specific numbers. Yet the arrival of people in Assam has repeatedly been used by those in power to play upon local anxieties about the dilution of Assamese culture. The National Register of Citizens (NRC) for Assam, published in August 2019, left out approximately 1.9 million residents. Whether each of them is a citizen will be decided by a Foreigners Tribunal.

That makes the Foreigners Tribunal one of the most consequential adjudicatory bodies in the country. It is also one of the least examined. This post asks a simple question: measured against the rule of law and the values of the Constitution, are these tribunals fit for the task?

How we got here

The NRC did not arise in a vacuum. It sits at the end of a long chain of measures: colonial settlement policies in the nineteenth century, wartime foreigners legislation in the late colonial period, the Immigrants (Expulsion from Assam) Act, 1950, the first NRC of 1951, and the Assam Accord of 1985, which fixed 24 March 1971 as the cut-off date for detecting foreigners in Assam.

Two legal regimes then ran side by side. The Illegal Migrants (Determination by Tribunal) Act, 1983 placed the burden of proof on the State. The Foreigners Act, 1946 placed it on the person. In Sarbananda Sonowal v Union of India, the Supreme Court struck down the 1983 Act, and the 1946 Act, with its reversed burden, became the governing framework. In Assam Sanmilita Mahasangha v Union of India, the Supreme Court directed the updating of the NRC and supervised the exercise. The tribunals that hear references from the Border Police, the “D voter” cases sent by the electoral machinery, and now the appeals of those left out of the NRC, are all Foreigners Tribunals.

The yardstick: three tests from the rule of law

Drawing on the rule of law literature and on the right to a fair hearing before an independent and impartial tribunal, found in Article 10 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights, the article proposes three tests for any body that decides a person’s status:

1. It must be created by a validly enacted law.
2. It must be capable, competent, independent and fair, and protected from outside influence.
3. Its procedure must be publicly known, settled in advance, and just, fair and clear.

The Foreigners Tribunals fall short on each.

Test one: a tribunal without a statute

The Foreigners Tribunals were not created by Parliament. They exist under the Foreigners (Tribunals) Order, 1964, an executive order made under section 3 of the Foreigners Act, 1946. The 1946 Act is a post-Second World War and pre-Constitution statute whose validity is itself in doubt. Its preamble speaks of powers “in respect of the entry of foreigners into [India], their presence therein and their departure therefrom”. It says nothing about determining whether a person who claims to be a citizen is one. Yet that is precisely what the tribunals now do, and in 2019 the Order was amended to make them hear appeals from the NRC.

This matters for three reasons. First, a pre-Constitution law does not enjoy the same presumption of constitutionality as a law made by a Parliament bound by the Constitution, a point the article draws from Navtej Singh Johar v Union of India. Second, the Constitution contemplates that tribunals will be set up by legislation, which is why Article 323-B speaks of tribunals created by law made by the appropriate legislature. Third, the tribunals do not even deliver judgments. They render “opinions”, a word that captures how far they stand from a court.

Test two: who sits, and how free are they?

Qualifications. Members are required to have “judicial experience”, a term the executive defines and the High Court applied loosely. Recruitment advertisements opened the door to retired civil servants and practising advocates, lowered the minimum age from 45 to 35 and reduced the required experience from ten years to seven. Over two hundred members were appointed in a short span. By contrast, the Supreme Court’s tribunal jurisprudence, including L Chandra Kumar v Union of India, emphasises legal training and judicial acumen in those who exercise judicial power.

Training and selection. The selection process is not transparent, and members have reportedly received only a short induction before deciding questions that can end in detention or statelessness.

Independence. Members are appointed on short, renewable terms. Reports indicate that renewal has been linked to performance assessed by the number of persons declared foreigners. A decision-maker whose next term depends on how many people he declares foreign is not decisionally independent, whatever the formal arrangements say.

Test three: procedure that tilts one way

The Foreigners (Tribunals) Order provides only a thin procedure. The person receives a notice and a short window to respond. The tribunal may refuse cross-examination if it considers it a delaying tactic. It may, in effect, devise its own procedure, and practice has varied from tribunal to tribunal. Above all, section 9 of the 1946 Act places the onus of proving that one is not a foreigner on the person concerned.

The results are telling. According to a reply in Parliament, 63,959 persons were declared foreigners ex parte between 1985 and 28 February 2019, that is, without being heard. Many of those before the tribunals are poor, unlettered, and dependent on documents prepared by others, often with spellings and dates that do not match. Women who moved on marriage are particularly exposed, because the link to their parents often exists only in their own testimony and that of their families.

Nor is there an appeal. A person declared a foreigner can only approach the High Court in its writ jurisdiction under Article 226. As the article notes, that review is limited: the High Court does not ordinarily reappreciate evidence. For a body whose decision can lead to detention, that is a thin safeguard, and it sits uneasily with Article 21, under which, following Maneka Gandhi v Union of India, any procedure that deprives a person of liberty must be just, fair and reasonable.

Designed to exclude?

Taken together, the picture is of tribunals that are not created by statute, are staffed through a loose and opaque process, lack security of tenure, follow a procedure of their own making, place the entire burden on the individual, and are subject to no appeal. Whether this was intended is difficult to prove. What is clear is that the framework of adjudication by Foreigners Tribunals cannot keep up with the promise of effective adjudication under the Constitution of India.

The stakes extend well beyond Assam. If a nationwide citizenship verification exercise is built on the same foundations, there is a genuine risk of very large numbers of persons being rendered stateless. That is why the citizenship verification process in India needs urgent academic scrutiny in all its aspects, and why this repository exists.

This post is commentary and not legal advice.