Few decisions made by any authority in India carry consequences as grave as a finding that a person is a foreigner. Such a finding can unsettle a life lived entirely within the country, cut a person off from the rights that come with citizenship, and open the door to detention and removal. In practice, these findings are made by Foreigners Tribunals. It is therefore fair to ask a question that is rarely asked with enough seriousness: who are the judges of the Foreigners Tribunals, and are they the kind of judges such a task demands?
I examined many of these questions in an earlier article, “Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in the Indian State of Assam”, published in the Statelessness & Citizenship Review in 2020. They have lost none of their urgency. Writing on the Oxford Border Criminologies blog in June 2026, Vibha Swaminathan describes the procedural failings of the Tribunals as systemic features of their design rather than accidents. This commentary is in two parts. This first part asks who the members are, what qualifications they ought to have, whether their independence is secured, and whether such bodies should be created by delegated legislation at the will of the executive. The second part, on Monday, turns to training, the difference between an advocate’s and a judge’s habits of mind, and the Tribunals’ dependence on the government.
A court in all but name
A Foreigners Tribunal does not merely process paperwork. It hears a person, weighs documents and testimony, applies the law and returns a finding on a question of status. That is adjudication in the full sense. The person before it is often poor, often unfamiliar with legal procedure, and often relying on documents created decades ago by others. On the other side stands the State, which has made the reference and has every resource at its command. When a body performs a function of this kind, the label attached to it matters far less than the substance of what it does. The standards we expect of a court should follow the function, not the name.
Who sits on the bench
The instrument that creates the Tribunals, the Foreigners (Tribunals) Order, 1964, asks only that members have “judicial experience”. The parent law says nothing about qualifications at all, leaving the executive to supply the content. As my article noted, the phrase is extremely vague, and in practice it has been read generously. A 2019 recruitment drive in Assam, run through the Gauhati High Court, opened eligibility to retired judicial officers, retired civil servants of senior rank, and advocates of at least 35 years of age with seven years of practice, both thresholds having been lowered from earlier levels. More than 200 members were appointed, without a transparent selection method such as a written examination.
Only one of these pools brings judicial experience in the sense the courts have understood it. A retired civil servant brings administrative knowledge, but the instinct of administration is to implement policy, not to adjudicate upon it. An advocate brings familiarity with the courtroom, but courts have held that practice at the bar is not the same thing as judicial experience. Where Parliament has wanted judicial qualifications for other adjudicatory bodies, such as labour courts and tax tribunals, it has said so in the statute, and the Constitution itself insists that advisory boards in preventive detention cases include persons who are, or are qualified to be, High Court judges.
What, then, should the qualification be? If the function is judicial, the qualification should be judicial. My article suggested a dedicated stream of qualified and independent judicial officers to hear these cases. A body that can decide whether a person belongs to the nation should not be staffed on criteria looser than those applied to the courts that decide far smaller matters.
Independence on a one-year lease
Independence is basic to any judicial body. It is not a privilege for the judge but a guarantee to the litigant that the person deciding the case owes nothing to either side. Its ingredients are well understood: a transparent, merit-based appointment, security of tenure, protected conditions of service, and freedom from removal or non-renewal on account of the content of decisions.
Measured against these, the position of Foreigners Tribunal members is troubling. They are appointed initially for one year, with extensions granted from time to time. Their performance is monitored, including their rates of disposal and of declarations, and reports have suggested that renewal is linked to the number of persons a member declares to be foreigners. Swaminathan puts it plainly: members are appointed by the executive, serve at its pleasure, and lack meaningful independence, with “performance” measured by the number of people declared foreigners.
This matters with particular force because the government is not a neutral bystander. It is, in substance, a party. The reference is made by State authorities, and it is the State’s position that the person is a foreigner. A member whose continuance rests in the hands of that very party is placed in an impossible position, however honest that member may be. Justice must not only be done but be seen to be done.
Born of an executive order
There is a further, structural concern. The Tribunals were not created by an Act of Parliament. The 1964 Order is an executive order made under the foreigners law, that is, delegated legislation, and as my article pointed out, it is not even required to be laid before Parliament. Composition, qualifications and procedure can all be altered by the executive without debate or scrutiny. My article argued that this falls short of the statutory guidance the Supreme Court has required for tribunals, notably in Roger Mathew, and that minimum eligibility conditions belong in the parent statute.
Should a body with the power to decide citizenship status exist at the whims of the executive? The answer must be no. Swaminathan’s piece shows what is at stake. In 2025 Assam approved a procedure under the revived Immigrants (Expulsion from Assam) Act, 1950 allowing district officials to declare persons illegal immigrants and order their expulsion within days, sidestepping the Tribunals altogether. When the design of adjudication is left to the executive, it can be reshaped or bypassed at will.
The better course is a statute laying down qualifications, appointment, tenure and conditions of service, protected from casual alteration. In the second part, we will ask whether members should be advocates or judges, whether an orientation is enough, and whether the Tribunals, as they stand, can be called independent at all.
Further reading: Talha Abdul Rahman, “Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in the Indian State of Assam” (2020) 2(1) Statelessness & Citizenship Review; Vibha Swaminathan, “Executive expulsions from Assam: A historical look at citizenship regulation”, Border Criminologies, University of Oxford (17 June 2026).
This post is commentary and not legal advice.
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