Assam’s Foreigners Tribunals: Urgent Questions We Need Answers To

Former soldier Md Sanaullah’s case shows decisions of Foreigners Tribunals are flawed. A new report shows why.

The case of Mohammad Sanaullah, a former Kargil war veteran who was recently detained as a ‘foreigner’ despite years of service, has helped bring to light the plight of those at the mercy of Assam’s Foreigners Tribunals.

Sanaullah, a retired honorary Lieutenant of the Indian Army who had been awarded the President’s Medal in 2014, was declared a foreigner by a Foreigners Tribunal on the basis of a dubious investigation report from 2008 that claims he is a labourer and includes statements by witnesses who insist they never said any such thing, and a forged confession.

The Tribunal’s order also relied on absurd considerations like why Sanaullah hadn’t registered to vote when he was 20 years old – even though at the time the legal voting age was 21, not 18.

The case was curious because it wasn’t just flawed, it was blatantly, obviously flawed. So how could things have got so far?

For any neutral observer, the case probably raised concerns over the motivations and methodology of the Tribunals in Assam, quasi-judicial bodies that determine whether or not people referred to them (by the Border Police or the state government) are citizens or foreigners as per the Foreigners Act 1946.

Those concerns will have been given a boost by revelations in Scroll.in by Arunabh Saikia, that the state government has been asserting more control over Tribunal members and firing them on the basis of “performance”. According to government records accessed by Scroll.in, there were two parameters for assessment of performance:

1. total cases disposed; and
2. how many of these cases resulted in a person being declared a foreigner.

Speaking to Saikia, a former tribunal member claimed that it had become a competition now among the members to be the “highest wicket-taker”, to be the person declaring the highest number of people as foreigners.

The article shows how the 19 ex-members, who were terminated in 2017 because of low numbers on the second factor, tried to challenge the government decision, including on the basis that the government should not be evaluating them (as the Tribunal members are supposed to be appointed by the Gauhati High Court). However, despite good numbers in terms of cases disposed, their termination was eventually upheld by the high court’s monitoring committee (a special bench of one judge).

This Supreme Court-mandated monitoring committee, set up by the high court to "oversee the the functioning” of the Tribunals, has also allegedly become a rubber stamp for the state government. It has supposedly overreached its authority, recommending that cases in which people were not declared foreigners should be appealed and re-opened, in line with the government line.

It is clear at this point that we urgently need some answers about the functioning of the Foreigners Tribunals. These Tribunals have the power to take away the liberty of Indian citizens, and so they have to operate in accordance with established law and procedure – a guarantee that applies under Article 21 of the Constitution even to non-citizens (see for example the Supreme Court judgment in NHRC vs State of Arunachal Pradesh in 1996).

It is imperative therefore to understand whether cases like Sanaullah’s are anomalies, or whether the systemic issues pointed out in Saikia’s article have rendered the whole system rotten. This is particularly important in light of the Foreigners Tribunals upcoming role in assessing the status of people who will not feature in the final National Register of Citizens (NRC).

Here’s a starter pack for the Gauhati High Court and its monitoring committee, as well as the Assam Government and the Tribunals themselves.

Why is the percentage of cases in which a person referred to a Foreigners Tribunal is declared a foreigner a metric for assessing performance of Tribunal members? Would this not influence their decision-making and make them more likely to declare people as foreigners even on flimsy grounds? What is the methodology behind keeping this as a metric?

Are Foreigners Tribunals being given targets to meet in terms of the number of persons they declare foreigners? If yes, what are these targets and how have they been arrived at?

What is the position being taken by the Assam Government, the Foreigners Tribunals and the Gauhati High Court on the application of the principle of res judicata to decisions of the Tribunals? Can a person who has been declared to NOT be a foreigner be forced to appear again before a Tribunal?

NOTE: In May, a Supreme Court order finally held that the principle of res judicata – that a matter once decided by a judicial authority can’t be revisited – applies to decisions of the Foreigners Tribunals. Previous decisions of the Gauhati High Court had held that it did not, and so even someone who had been held by a Tribunal to not be a foreigner could be brought before a Tribunal again to once again go through the whole process. However, the Supreme Court order did not strike down these old high court decisions, so it is unclear what the stance of the government and the courts in Assam is on this issue.

Why has the eligibility criteria for becoming a member of the Foreigners Tribunals been relaxed in the last couple of years? What kind of training and orientation programmes are conducted to ensure that all members of the Tribunals, including those without a legal background, have sufficient training and understanding of relevant procedures?

If there is a shortage of members necessitating a relaxation of eligibility criteria, why are members being terminated?

Has the monitoring committee conducted an assessment of the significant rise in the number of people being declared foreigners since 2017? What are the reasons for more people being declared as foreigners in 2017 and 2018 than the total from the eight years before 2017?

Has the monitoring committee reviewed the case of Mohammad Sanaullah and the decision of the Foreigners Tribunal? Will it undertake a study of decisions to see if the same failings in that case have affected the other decisions of the same Tribunal members?

On what basis did the monitoring committee approve the termination of 19 Tribunal members in 2017? Did the committee approve the assessment of their performance on the basis of percentage of cases where they declared a person a foreigner? Why was this metric approved?

What are the bases on which the Assam government and its screening committees decide whether or not to challenge decisions of the Foreigners Tribunals? Are there specific guidelines for when cases in which someone has not been declared a foreigner are to be appealed? Are members of these screening committees also assessed on the basis of the number of people declared as foreigners in their jurisdiction? Do the screening committees also have targets to meet in terms of appeals filed?