Mansi Gupta

This piece examines the procedural lapses, judicial shortcomings and executive interference vis-á-vis the Foreigners Tribunal established under the Foreigners Tribunal Act, 1946 to demonstrate how the onerous burdens of proof, lack of judicial reasoning and other arbitrary facets of the Tribunals’ functioning are detrimental to the legitimate rights of individuals viz the principles of natural justice.

Introduction

The final list of National Registry of Citizens (NRC) in Assam was concluded on 31st August 2019. However, even after the multi-staged process there were still around 2 million people left outside its purview. The humungous programme conducted under the Citizenship Act, 1955 and monitored by the Supreme Court of India, not only involved substantial administrative costs but also the loss of lives and exclusion of people to claim their basic citizenship rights. The entire process of identification of ‘immigrants’ has serious repercussions on the lives of these people. It has been argued that since the pandemic, the extra-ordinary delay in resolving the disputes over citizenship shows an ‘extraordinary lack of regard for the people who have been excluded’. In this context, it becomes imperative to understand the process of judicial resolution of disputes over citizenship. 

As per Section 6A of the Citizenship Act, 1955 residents of Assam are required to prove that either they or their ancestors have entered the country before the midnight of March 24, 1971 by registering with the Foreigners Registration Office. The fate of the remaining people is to be decided by the quasi-judicial body known as the Foreigner’s Tribunal (hereinafter “FT)” under the Foreigner’s Tribunal Act, 1946 (hereinafter “1946 Act”). I argue that working of these tribunals is jeopardized due to excessive executive control, and hence, they cease to be fair and impartial in the conduct of proceedings. These tribunals flout the principles of natural justice and do not provide a reasoned order to the aggrieved person. Thus, the functioning of these bodies requires a strict scrutiny on the touchstone of the established principles of administrative law.

The Foreigner’s Tribunal

The FT is the court with original jurisdiction to hear matters regarding determination of citizenship. As opposed to the other tribunals which have been established under Article 323(b) of the Constitution, FTs are the only tribunals established via an executive order.  These were established under the Foreigner’s Tribunal Order, 1964 (hereinafter “1964 order”) issued in accordance with the 1946 Act. Primarily two documents are necessary for proving citizenship, the first showing that applicants parents or ancestors were living in Assam in 1971 or before such as land records, license, bank accounts etc., and the second showing that the applicant is the descendant of such ancestor such as birth certificate, board/university document, electoral roll etc. For any person who is excluded from NRC on the account of not furnishing these documents, there are two ways to appeal the FT. Firstly, those who have been excluded from the NRC can directly file an appeal here, and secondly, the cases can be referred to these tribunals by the Assam Border Police and the Election Commission (hereinafter “EC”). The EC has the power to scrutinize the voters list carefully and mark doubtful voters to be referred to the tribunal which causes distress to a large number of people as their citizenship becomes doubtful. All of these claims have to be then determined by the single judge bench of the FT.

Validity of the Tribunal

The validity of this tribunal was challenged recently in the case of Abdul Kuddus v. Union of India. The petitioners argued that an opinion rendered by the Foreigners Tribunal has no more significance than an executive order. They said that the tribunal’s findings cannot be perceived as final and can be challenged in a court of law which shall rectify the administrative errors in light of evidence available. They also stated that the proceedings under the 1946 Act was different from NRC prepared under the Citizenship Act, 1955 was different. While drawing the distinction between the two processes of NRC and proceedings of the FT, they pleaded that the former was a process independently monitored by the Supreme Court and the cases before foreign tribunal are questions pertaining to who is a foreigner as per Foreigner’s Tribunal Act, 1946 and hence, res judicata cannot apply. 

The Supreme Court, while dismissing the petition, stated that the “opinion” of the Foreigners Tribunal was to be treated as a “quasi-judicial order” and it said that the 1946 and 1955 Act along with the Citizenship (Registration of Citizens and Issue of National Identity Cards),  2003 rules were to be read together. It stated that the order of FT shall prevail over NRC order on citizenship and once declared foreigner by the tribunal, they cannot be included in the NRC as per para 3(2) of the 2003 rules. Thus, the decision rendered by the FT was considered to be final and binding. 

Excessive Executive Control in Appointment Mechanism

The judges in the FT are selected by a panel of high court judges. Earlier, one of the mandatory criteria for eligibility as a judge was “judicial experience” and only retired or serving district judges could sit on tribunal benches. However, this criterion is now relaxed and retired civil servants or an advocate with 7 years of legal practice can also be appointed as the judge in the tribunal. The selection process has no test component and is devoid of any transparency. This goes against the established norms wherein it has been laid down that the tribunals meant for taking place of the civil courts should be manned with people having requisite experience. In addition to this, there is an overarching presence of executive in the appointment process as well as in matters of remuneration. Even though these candidates are selected by the HC judges, the appointment is carried out through the home and political department of the Assam government.

Once these members are appointed, their performance is appraised by the Guwahati HC along with the government. It is astonishing that the report presented by the executive has a section of “percentage of foreigners declared” and  “total number of cases disposed” as the metrics for evaluation of performance. In fact, after 64 new tribunals were created with new members, there was a steep rise in the number of people being declared as foreigners. There is no security of tenure for these members and often extension of tenure is often provided to the person who has maximum convictions to his account. Therefore, the appointment and appraisal mechanism of these independent tribunals work at the whims and fancies of the executive. Rule of law requires that there is a separation of powers between various organs so that they function effectively and without any bias or authoritarianism. Time and again, the courts have established that the judicial function has to be segregated from the legislative or executive function, since independence of judiciary is pre-requisite for a fair decision making. All these instances show that there is a clear violation of the principle of separation of powers. It is important that the adjudicatory bodies such as FT should be made independent from the executive so that they can work freely and impartially.

Procedural Lapses in Working of Tribunals

Being quasi-judicial bodies, there is a considerable relaxation provided to these tribunals to conduct their procedure while applying the rules of Code of Civil Procedure (CPC) and Evidence Act, as opposed to regular courts. As per the 1946 act, the tribunal has the power to regulate its own procedure. Paragraph 4(c) of the 1964 order gives the tribunal the power to examine witnesses and documents. However, in many cases the production of witnesses was difficult since the courts were located far and witnesses did not want to bear the costs of appearing. In a petition before the Supreme Court, it was claimed that since there is no embargo on transfer of cases as per Section 24 of the CPC, the transfer of cases should be allowed. However, the Court held that since there is no enabling provision to transfer a reference case from one tribunal to another tribunal, such a plea could not be allowed, increasing the difficulty of non-appearance of witnesses in the course of such proceedings. Thus, even though prima facie, this might appear constitutionally valid, this leads to unfair outcomes in practice.

Under the Foreigner’s Tribunal (Amendment) Act 2019, any aggrieved person who did not find his name in the NRC can also move to the tribunal. Earlier only state government had the power to approach the tribunal against a suspected person, but now even the aggrieved person is given an opportunity to present his case within 60 days of the order of exclusion from the NRC. Under Section 3(10) of the Amendment, the tribunal upon finding merits in the case, shall issue notice to the appellants and the district magistrate for hearing within 30 days. However, the tribunal has the right to reject the appeal outright without a hearing, if it feels that the appeal is without merit. This confers the tribunals with vast discretion to the derogation of the  procedural requirements to be followed by the judiciary.

It is to be noted that the mandate of these courts is only to determine whether a person is a foreigner under S. 2A of the 1946 Act. However, an Amnesty international report notes and criticizes the functioning of these tribunals as they end up tagging these people as ‘illegal migrants’, while the FT has no power to determine such illegality. In the recent decision of Assam Public Works v. Union of India, the Supreme Court upheld the decision of FT declaring children of doubtful voters as non-citizens as well. This violation of human rights through the exercise of excessive powers by the Tribunal is purportedly justified saying that nothing was mentioned in the Act to this effect and that the SC’s decision was retroactively applied. Additionally, earlier these tribunals used to order detention for an indefinite period of time. Following a writ petition, the Supreme Court ordered that these people should be set free from detention camps after a period of 3 years and on payment of  two sureties of Rs. 1 lakh each as bond. However, this futile as most people are unable to secure this amount and suffer detention for an unknown period of time.

Violation of Principles of Natural Justice

While the quasi-judicial actions are not strictly required to adhere to the stipulations as contained in the laws of procedure, it is quintessential that their actions adhere to the principles of natural justice. The principles of natural justice are an integral part of natural law and cannot be taken away by any executive or adjudicatory body. However, there is a scant regard to these principles by the FT.

According to the Section 3(1) of the 1946 Act, the tribunal shall serve a notice to the person alleged as a foreigner mentioning the grounds of allegation as was upheld in the case of State of Assam v. Moslem Mondal and ors. However, the tribunal rarely follows this and poorly drafted notices are served to the persons concerned. In absence of rebuttable grounds, it becomes impossible for them to present a favourable case before the Court. In many cases, the notices are not even served to the person concerned. Ordinarily, not more than ten days’ time from the date of service of the notice is given to file such written statement. If people do not appear before the Court due to the inability to understand the notice or non-availability of the notice, the tribunal issues an ex-parte order. Around 64000 people in Assam have been declared foreigners and ex-parte notices have been issued to them till February 2019. This shows that exclusion of arbitrariness which was the premise of natural justice, is not followed by the FT. A fair right to make a representation is severely limited by these excessive ex-parte orders, thereby not satisfying the test of natural justice.

High Burden of Proof and No Speaking Order

The tribunals are given sweeping powers to accept or reject the evidence presented by the petitioner and is bound to accept the evidence presented by the police. After the 2019 amendment, the burden of proof shifted upon citizens to prove that they were citizens. This has historical roots as the Court in Sarbananda Sonowal v. UOI held that illegal immigration poses a threat of external aggression upon the country and thus constitutionally, the burden of proving citizenship shall always lie upon the person accused of being a non-citizen. Now, they have to gather documents related to birth, schooling and landownership. Given the abysmal state of record management in India, it is unfair to ask the impoverished and unlettered rural residents to gather all these documents. There are discrepancies in the documents originally written in Bengali and then translated in English.  Moreover, photocopies of the documents are not accepted and only certified copies are to be presented. Therefore, there is a high burden on the aggrieved to be discharged. 

Laudably, the tribunal while rendering its decision based on the relevant facts, is not required to provide reasons for its findings and since it is not a judgment in an ordinary court, it can summarily dismiss the petition. If the FT does not seem to be satisfied with the documents presented or says such documents such as marriage certificate etc. are not enough, it can terminate the citizenship of a person. Although the tribunal may add reasons to the verdict, it is not mandatory and a concise statement of facts along with the conclusion of the court shall suffice. 

It has been held in a catena of cases that the quasi-judicial bodies, being the courts of first instance, have a duty to act fairly and even if there is no statutory requirement for providing reasons, such a requirement can be read by the virtue of Article 14, 19 and 21 of the Constitution. Additionally, the legislative intent cannot be to  deprive people of their legitimate rights. This implies that the FT have a duty cast upon them to act fairly and provide reasons for their judgements, which they fail to discharge. First, the applicant has a higher burden to prove his citizenship, despite having limited access to government documents; and, second, the tribunals do not even provide a speaking order. Thus, this violates another established principle that the adjudicators must provide adequate reasoning for their judgement.

Conclusion

Based on the edifice of liberal democratic principles, the Indian Constitution envisages an equitable living for all its citizens. It is pertinent that the executive or other bodies do not meddle with the affairs of the judiciary or judges in quasi-judicial bodies to ensure that these goals are achieved. In the present case, the FT are the quasi-judicial bodies established to determine the question of citizenship of people declared ‘foreigners’. The proceedings before these bodies should follow the principles established by the court of law. However, it is observed that the FT does not act fairly in accordance with justice. There is an urgent need for the Parliament and the higher judiciary to take corrective actions in this regard.

The author is a third-year law student at the National Law School of India University, Bangalore.