In the first part of this commentary, we asked who sits in judgment in the Foreigners Tribunals, what their qualifications ought to be, and whether bodies with such grave powers should rest on an executive order. We concluded that a body which decides citizenship status performs the work of a court and should be built, staffed and protected like one. This second part takes up three further questions: whether members should be advocates or judges, whether a short orientation is sufficient, and how far the Tribunals’ dependence on the government allows them to be classified as independent. It draws again on my 2020 article in the Statelessness & Citizenship Review and on Vibha Swaminathan’s June 2026 piece on the Oxford Border Criminologies blog.
Advocates or judges?
An advocate is trained to argue one side. That is not a criticism; it is the advocate’s duty. Years of practice teach a lawyer to see the strengths of a client’s case and the weaknesses of the opponent’s, to press every point that helps and to minimise every point that hurts. These are valuable skills in an adversarial system, but they are the skills of a partisan, formed over a whole career. It is for this reason that courts have held that practice at the bar does not amount to judicial experience.
A judge is trained to do something different: to hold both sides in view at once, resist the pull of the more forceful presentation, notice what has not been said, and reach a reasoned conclusion that is fair to the weaker party. Appreciation of both sides is not a natural instinct. It is a discipline acquired through training and years of deciding cases.
Proceedings before a Foreigners Tribunal place a particular demand on that discipline. The person whose citizenship is in question is frequently unrepresented or poorly represented, and relies on old records, variations in names and spellings, and oral testimony from family members. Swaminathan, drawing on a body of research, notes heavy evidentiary burdens, limited access to legal help, inconsistent standards of proof and frequent ex parte proceedings. A member who approaches such a record as an advocate searching for weaknesses may find them everywhere. A member who approaches it as a judge, asking what the evidence as a whole establishes, is more likely to reach a just result.
The preference, therefore, should be clearly for persons trained as judges, not for advocates who must unlearn the habits of a lifetime on the day they take their seat. The recent dilution of eligibility for advocates, discussed in the first part, runs in exactly the wrong direction.
Four days is not training
That leads to training. As my article recorded, members have typically attended only a four-day training seminar, the content of which is not clear. That is an orientation, not training. An orientation introduces a new member to procedure, forms and the working of the Tribunal. Training in adjudication is something else.
The law relating to citizenship and foreigners is intricate. It involves the burden of proof, the appreciation of documentary evidence, the treatment of minor discrepancies, the weight to be given to oral testimony, and the constitutional values that frame every decision touching citizenship. A member expected to master all of this in four days is being set up to fail, and the cost of that failure is borne by the person before the Tribunal. By way of contrast, my article pointed to the United Kingdom, where a dedicated Judicial College trains tribunal members in evidence and related skills.
Extensive training should be the norm. It should cover the substantive law, the principles of evidence, the writing of reasoned orders, and the sensitivity required when dealing with litigants who are often poor, often from marginalised communities and often unfamiliar with formal procedure. It should also be continuing, rather than a single event at the start of a member’s tenure.
The measure of dependence
How far do Foreigners Tribunals depend on the government? Dependence can be measured along several lines. Who sets the eligibility criteria? Who appoints? Who decides whether a term continues? Who monitors performance, and by what yardstick? Who can rewrite the rules under which the Tribunals function?
For Foreigners Tribunals, the answers point overwhelmingly to the executive. It frames the eligibility criteria through delegated legislation, makes the appointments, and controls renewal of one-year terms. My article described a system of monthly monitoring of disposal and declaration rates, a pressure that can push members to decide quickly and to avoid appearing too accommodating, and noted that the Border Police had been allowed to comment on Tribunal opinions. Swaminathan, citing reporting on tribunals competing to declare people foreigners, describes members whose continuation depends on the number of people they declare.
This dependence is acute because the government is in substance a party. The State refers the case, the State asserts that the person is a foreigner, and the State holds the member’s future in its hands. Some administrative support from government is unavoidable for any tribunal. What is not acceptable is dependence that gives the executive leverage over the member, especially where the executive has an interest in the outcome.
Can they be called independent?
Independence is not established by declaration. A body is not independent because it is called a tribunal, or because its members are said to have judicial experience. It is independent when its structure ensures that members can decide against the government without fear for their positions. The test is not the integrity of any individual member, many of whom may decide with conscience and care, but whether the institution protects that integrity or places it under strain.
Measured by that test, the Foreigners Tribunals, as presently constituted, lack both decisional independence, because members’ renewal depends on the executive, and functional independence, because the monitoring of their output bears on how they decide. They cannot be classified as independent in the sense that judicial bodies require.
The remedy follows from the diagnosis. Members should be drawn from those trained as judges, ideally a dedicated stream of judicial officers. They should receive extensive and continuing training, not a four-day orientation. Their appointment should follow a transparent process insulated from the executive, with secure tenure and protected conditions of service. And the Tribunals should rest on a statute passed by Parliament, not an order the executive can change at will. Only then can those who judge the foreigners stand, as judges must, at an equal distance from both sides.
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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