As NRC Not Off the Table, What About Flawed Foreigners Tribunals?

How chaotic will it become for those who will be forced to appeal exclusion from NRC in Foreigners Tribunals?

(Image: Erum Gour/The Quint)

Video Editor: Sandeep Suman

For now, Prime Minister Narendra Modi has put the brakes on his government’s plans for a pan-India National Register of Citizens or NRC. But, it is not a complete rollback.

In May 2019, PM Modi took a key step towards a nationwide NRC by amending the Foreigners (Tribunals) Order of 1964 – making it applicable throughout India, effectively allowing the government to set up foreigners tribunals in every Indian state.

But why does the government want to set up foreigners tribunals in all the states?

More importantly, what does a foreigners tribunal do?

Anybody who fails to prove Indian citizenship during the NRC process has to then appeal to the Foreigners Tribunal in order to reclaim their citizenship. For this purpose, several such tribunals were set up in Assam when the NRC exercise was conducted there.

But there were major problems in how these tribunals were functioning in Assam, which have been underlined by Human Rights Activist Harsh Mander, in his application filed against the Foreigners Tribunals in the Supreme Court.

Problems With the Foreigners Tribunals

1. No Proper Investigation By Authorities

Mander says despite the procedure being laid down, the Election Commission and Assam Border Police officials have routinely accused genuine citizens of being illegal immigrants without any investigation.

Verification forms, meant to be filed by investigation officers, were often left empty and yet, people were referred to foreigners tribunals. Despite known cases of harassment, no action has been taken against a single investigating officer.

In its defence, the state government told the Supreme Court that no genuine citizen is being accused or harassed in the name of investigation.

2. Large Number of Ex-Parte Orders By Tribunals

A large number of ex-parte orders were passed by Assam’s Foreigners Tribunals. This means that an individual, who was declared as a foreigner, did not get a chance to defend his or her case before the tribunal. The tribunal passed the order regarding the person’s citizenship simply by looking at the documents presented by the state.

An Assam Tribune article, according to Mander’s application, says that till December 2016, ex-parte orders had been passed in over 26,000 cases.

Mander says individuals are not even being provided legal aid by the government. This is crucial because many of those fighting their cases in the tribunals cannot afford legal services.

In response to the application, the state government submitted to the Supreme Court that individuals, suspected of being foreigners, often evade and refuse to accept the notices, and therefore in such cases, the matter is disposed off ex-parte.

The state government also said that any person in need of legal aid can approach the District Level Legal Services Authority (DLSA) to avail legal services. Additionally, the Foreigners Tribunals’ may also recommend the DLSA to provide services.

3. Many Declared Foreigners Without Reason

In many cases, the tribunals have not mentioned the reason for declaring an individual a foreigner. Even though this is mandated by law.

4. Tribunal Members at the Mercy of State Govt

The members of these foreigners tribunals are appointed by the state government, and work on a contractual basis. Since the government has the discretion over appointment and extension of contracts, it undermines the ability of the tribunal members to be free and fair. Many tribunal members may toe the line of the political party, which is in power in the state.

Around 1,000 foreigners tribunals were set up for Assam’s NRC exercise, which proved to be a a logistical nightmare. There are many questions on the human cost of this exercise as well. Several such flaws have been flagged by human rights activists. Can we then rely on the obscure system of foreigners tribunals to decide the fate of crores of Indian citizens?

5. Tribunals Act Arbitrary

As per the Foreigners (Tribunal) Amendment Order 2012, every case has to be disposed of within 120 days, and so, the tribunals are allowed to regulate their procedures to ensure the quick disposal of cases. But Mander argues that this allows the tribunals to act in an arbitrary manner, giving them far too many discretionary powers.

6. Scope of Appeal Narrow

A state’s high court cannot review the final ruling made by a Foreigners Tribunal. It can interfere only if there is a problem with the evidence on which the tribunal’s decision is based. Activists like Harsh Mander say a proper appellate body is crucial when the question of one’s citizenship is at stake.

If the Modi government is serious about putting the brakes on NRC, it needs to clarify its position on the foreigners tribunals. For now – despite NRC’s many flaws and its dangerous implications in Assam – the legislation that allows the setting up of foreigners tribunals across India still stands. And that, should worry us all.