This post discusses the Foreigners Tribunals in Assam, India, which have recently been the subject of a scathing report by Amnesty International. This post focuses on the anomalies of the Tribunals from an administrative law perspective. The author has also written a detailed article on the functioning of the tribunals in Statelessness & Citizenship Review. This post provides a preview of the more detailed article.
Creation of the Foreigners Tribunals
Tribunals are generally creatures of statutes. In India, Articles 323A and 323B of the Constitution explicitly give Parliament the power to create administrative tribunals for the adjudication of certain disputes. But unlike all other Tribunals in India, the Foreigners Tribunals were established by an executive order – the Foreigners (Tribunals) Order, 1964, an order under the Foreigners Act, 1946.
The Foreigners Act, 1946 arrogates almost absolute power to the Executive to deal with a foreigner. The Act defines “foreigner” as a person who is not a citizen of India and empowers the Central Government to issue orders to make provision for “prohibiting, regulating or restricting the entry of foreigners into India” and “their departure therefrom or their presence or continued presence therein”. However, the issue is that under the Foreigners Act, 1946, on account of the reverse burden of proof, if a citizen is accused of being a “foreigner” they shall be so deemed unless they prove otherwise. In the context of the State of Assam, it means that one has to prove residence in Assam before 25 March 1971.
To create a mechanism to determine who is a foreigner, the Central Government established tribunals by an executive order called the Foreigners (Tribunals) Order, 1964. One of the objectives of creating tribunals is to absolve them from the rigours of procedural laws. For that reason, some Indian tribunals are empowered to devise their own procedure. However, in other cases, rules and regulations have been framed to regulate tribunal procedures. These includes the Consumer Protection Rules, 1987, and the National Company Law Tribunal Rules, 2016. The Foreigners Tribunals in Assam should be regulated by similar rules. If there were only one or two tribunals, it might be appropriate to trust the presiding officers to formulate their own fair procedure depending upon the prevailing circumstances. However, leaving the hundreds of Foreigners Tribunals in Assam to devise their own procedure is likely to result in inconsistencies and unfairness. (Limited procedural requirements were admittedly imposed in June, 2019 by amending the Foreigners (Tribunals) Order 1964, when thousands of cases had already been determined by the Foreigners Tribunals.)
Unlike other statutes that lay down detailed criteria for the appointment of tribunal members and presiding officers, the Foreigners Act, 1946, is silent on the issue. There is no reference to a tribunal or adjudicating authority in the Foreigners Act, 1946. This may be contrasted with a contemporary statute, the Industrial Disputes Act, 1947, which provides for the creation of a labour court and a labour tribunal.
The Foreigners (Tribunals) Order, 1964, deals with the criteria for appointment of members of Foreigners Tribunal. It only provides in paragraph 2 that “The Tribunal shall consist of such number of persons having judicial experience as the Central Government may think fit to appoint.” There is no further guidance or restrictions on the power to appoint members. It is completely in the hands of the Central Government or any person to whom it wishes to delegate its power in terms of Section 12 to come up with any criteria for “judicial experience” to identify members for the Foreigners Tribunals. Thus, while under the Industrial Disputes Act, 1947, a judge of a labour court is required to have held a judicial office for 7 years, no such restriction is provided under the Foreigners (Tribunals) Order, 1964.
Even the phrase “judicial experience” has been abused. In a recent advertisement issued by Assam High Court at Guwahati, even advocates with no “judicial experience” but having 7 years standing at the bar are invited to apply to become members of Foreigners Tribunals. Apparently, in the previous round of recruitments, the criteria was 10 years of standing at the bar which was reduced by three years without any accountability for the change. This establishes that even the non-statutory criteria is so flexible that it can be diluted at will. Given the reverse burden of proof under the Foreigners Act, 1946, one would expect that the tribunal that adjudicates the issue of whether a person resident in India is not an Indian citizen would have independent and competent persons acting judicially. This may be contrasted with the reverse burden of proof provisions in other (criminal) statutes where the trial takes places before a sessions judge, whose qualification is prescribed in Articles 233-233A of the Constitution of India.
Selection process and training
Under the Constitution, a person must have attained 35 years of age and 7 years experience at the bar to qualify for appointment as a district and sessions judge. Presently, it is the same criteria for appointment of a lawyer as a member to the Foreigners Tribunal. However, the selection criteria of the members of the Foreigner Tribunal is improperly and poorly executed. In the recent round of recruitment of 221 members of the Foreigners Tribunal, there was no written test – a common feature for most public recruitments in India. The selection was based only on an interview. Even those selected, unlike in other judicial services, do not undergo any training apart from a brief orientation program. There is no protection of tenure, and the appointments are contractual, to be renewed every year subject to “satisfactory” performance. These features are contrary to every judgment rendered by the Supreme Court of India on the issue of tribunalisation. The members of Foreigners Tribunals, therefore, cannot be called independent – and the Foreigners Tribunals thus fail to pass even the most basic test of the rule of law.
What Foreigners Tribunals actually adjudicate
Paragraph 2(1) of the Foreigners (Tribunals) Order, 1964, empowers the Central Government to “refer the question as to whether a person is not a foreigner within the meaning of the Foreigners Act, 1946 … to a Tribunal to be constituted for the purpose, for its opinion.” The power to refer a question to the Tribunal was originally vested in the Central Government alone, but was subsequently delegated to the Assam Border Police, the Election Commission of India and other agencies. This weakening of centralised scrutiny is concerning. The Foreigners Tribunals Order was amended in May 2019 to empower the tribunals to entertain “appeals” by those excluded from the final list of National Register of Citizens in Assam. It is relevant that the Foreigners Tribunal is required to answer the reference sent to it, and to render an “opinion” (as distinct from judgments, decree or order) – allowing the referring agency to further comment upon the opinion and sit in judgment over it.
Very often, it is portrayed that the Foreigners Tribunals in Assam are deciding on the nationality of an individual and are identifying persons as Bangladeshis. Colloquially, it is said that the Foreigners Tribunal are decided whether a person is Indian national or a Bangladeshi ghuspethiya (a Hindi term for ‘intruder’). However, the fact is that in terms of paragraph 1 of the Foreigners (Tribunals) Order, 1964, the Foreigners Tribunal can only adjudicate on “whether a person is not a foreigner”.Note that the issue is negatively couched, and further that it is not deciding any person’s citizenship. In fact, no Indian court can decide in a way that binds another country the issue of whether a person is national of another country – for determination of that question is an incident of the sovereignty of that nation. Thus, persons suspected to be foreigners, upon being declared as foreigners are rendered stateless. This is important because persons declared as foreigners are kept in detention centres on the basis that they are to be deported (to Bangladesh) in due course. However, unless their nationality is determined by that country and they are held to be citizens of that country the question of deportation would not arise. A large number of persons declared as foreigners are in fact India’s own citizens who could not muster paperwork to overcome the reverse burden of proof, and for this reason, their chances of ever being deported are bleak. They are only ‘technical’ foreigners.
A more specific statute
It must be remembered that the Foreigners Act, 1946 is not a statute to verify the citizenship of India’s own citizens or residents. It is a regime to safeguard Indian borders from incursions and to summarily remove those who are found in circumstances that suggest that they are a foreigner. In fact, there is a statute called The Immigrant (Expulsion from Assam) Act, 1950, which empowers the Central Government to order expulsion from Assam “If the Central Government is of opinion that any person or class of persons, having been ordinarily resident in any place outside India, has or have, whether before or after the commencement of this Act, come into Assam and that the stay of such person or class of persons in Assam is detrimental to the interests of the general public of India”. However, this legislation, is rarely resorted to, likely because it requires the Central Government to have reasons to believe that a person is not ordinary resident in India and that their presence is detrimental to the interest of the general public. Instead, the Central Government relies on the panacea of the Foreigners Act, 1946, and its reverse burden of proof.
Recently, the Supreme Court of India in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1has held the presumption of constitutional validity does not apply to pre-Constitution statutes. The Foreigners Act, 1946, is one such statute. In fact, in Hans Muller of Nurenburg v. Superintendent, Presidency Jail ((1955) 1 SCR 1284, para. 17), the then-Attorney General admitted that the then Section 4 of the Foreigners Act, 1946, was invalid after the adoption of the Constitution of India. The judgment records “There are further limitations, but they were not invoked except that the learned Attorney-General explained that the unrestricted power given by section 4(1) of the Foreigners Act, 1946 (a pre-constitution measure) to confine and detain foreigners became invalid on the passing of the Constitution because of articles 21 and 22” Articles 21 and 22 of the Constitution are not the only matters to be concerned about, there is also the fundamental principle of the rule of law. The Supreme Court has said that, to safeguard the rule of law, tribunals should be established by statute: see R. K. Jain (1993) 4 SCC 119, para 67, Madras Bar Assn (2010) 11 SCC 1, para 90, and Roger Mathew (Civil Appeal No. 8588 of 2019). In Madras Bar Assn, the Supreme Court held:
“when we say that the legislature has the competence to make laws, providing which disputes will be decided by courts, and which disputes will be decided by tribunals, it is subject to constitutional limitations, without encroaching upon the independence of the judiciary and keeping in view the principles of the rule of law and separation of powers. If tribunals are to be vested with judicial power hitherto vested in or exercised by courts, such tribunals should possess the independence, security and capacity associated with courts. If the tribunals are intended to serve an area which requires specialised knowledge or expertise, no doubt there can be technical members in addition to judicial members. Where however jurisdiction to try certain category of cases are transferred from courts to tribunals only to expedite the hearing and disposal or relieve from the rigours of the Evidence Act and procedural laws, there is obviously no need to have any non-judicial technical member. In respect of such tribunals, only members of the judiciary should be the Presiding Officers/Members. Typical examples of such special tribunals are Rent Tribunals, Motor Accidents Claims Tribunals and Special Courts under several enactments. Therefore, when transferring the jurisdiction exercised by courts to tribunals, which does not involve any specialised knowledge or expertise in any field and expediting the disposal and relaxing the procedure is the only object, a provision for technical members in addition to or in substitution of judicial members would clearly be a case of dilution of and encroachment upon the independence of the judiciary and the rule of law and would be unconstitutional.”
There are thus very strong reasons to doubt the constitutional validity of the Foreigners Tribunals. Established by executive order rather than by statute, and with concerning (ad-hoc) procedures relating to appointment, training and adjudication, these tribunuals constitute an ‘encroachment on the indpendence of the judiciary and the rule of law’. The Foreigners Act, 1946, may have been valid in the pre-Constitution era, but is now invalid by virtue of Article 13 of the Constitution (which invalidates pre-Constitution laws that are inconsitent with the Constitution).
The Foreigners Tribunals in Assam are everything that tribunals empowered to decide judicially should not be. They are a cautionary tale of what occurs when the establishment, composition and procedure of a tribunal is left to executive order and to the tribunal itself.
Talha Abdul Rahman is an Advocate on Record, Supreme Court of India. Twitter: @talhaarahman