Much has been spoken and written in mainstream media about the precariousness and unfairness of the National Register of Citizens (NRC) process in Assam – and rightly so. However, the Foreigners Tribunal (FT) regime in the state, which has been systematically depriving hundreds of people of their Indian citizenship for many decades, has mostly evaded wider public scrutiny.
The quasi-judicial FTs, which came into existence following an executive order in 1964 to provide an opinion on the question of whether a person is a foreigner within the scope of the Foreigners Act, 1946, have operated with great arbitrariness. Because they are not subject to the standard norms of the Indian judicial system and also have wide discretionary power to frame their own rules, the FTs have been able to invent “illegal foreigners” in Assam without much scrutiny or accountability.
By doing so, these half-courts – some would say Kangaroo Courts – have been able to satiate and validate majoritarian anxieties around a supposed demographic threat to the Assamese people from “illegal Bangladeshis”.
But, on 11 July, a division bench of the Supreme Court of India comprising Justices Vikram Nath and Ahsanuddin Amanullah offered a remarkable indictment of the FT regime when they overturned a verdict declaring a Muslim man as a foreigner. In doing so, the court issued what is arguably the finest and most intricate commentary on not just the FTs’ lax operational norms, but also the callousness of the police bureaucracy that sustains these tribunals.
A Judicial Maze
Rahim Ali did not know that his life would change forever when a policeman turned up at his doorstep in May 2004. Born in the lower Assam district of Barpeta, Ali had moved to the neighbouring district of Nalbari after his marriage in 1997.
Bipin Dutta, the Investigating Officer from the local police station, was told that Ali was a foreigner who had illegally migrated to Assam from Bangladesh. It is on this basis that he showed up at Ali’s residence, following which he formally referred him to the local FT.
Eight years after that fateful day, on 19 March 2012, the Nalbari FT declared that Ali – who carries an alias of Abdur Rahim – was indeed a foreigner who had illegally entered Assam. The tribunal did so in his absence through what is known as an “ex-parte order.” That day, Ali’s world, as one would expect, turned upside down. But, he wasn’t one to accept his fate lying down.
Within two months of the verdict, Ali challenged it through a writ petition at the Gauhati High Court, which is the only way to challenge an FT verdict. Hence began a convoluted judicial journey. He received a brief respite when the high court stayed the FT verdict in June 2012. But, three years later, it upheld the tribunal verdict and dismissed Ali’s petition.
Ali, once again, refused to give up. He took the matter to the Supreme Court, which, sensing judicial lapses, asked the Nalbari FT to take a fresh look at the verdict in July 2017. But, the tribunal upheld it once again four months later. It is this final verdict of the tribunal that the apex court’s division bench took up for review.
This time, instead of sending it back to the FT once again, the court took initiative to set it aside and affirmed that Rahim Ali was not an illegal foreigner from Bangladesh.
A Regime of Flimsy Evidence
Among the many aspects of the judgment that stands out, is its repeated and empathetic focus on how the Tribunal and the attendant police administration stripped Ali of his Indian citizenship based on mere ‘suspicion’. In doing so, the court struck at the heart of the matter – evidentiary negligence hardwired into Assam’s FT regime. It reaffirmed the centrality of rule of law, which according to noted British legal scholar, Albert Venn Dicey, is an absence of arbitrariness.
Since long, the police in Assam have been randomly turning up at the homes of people – usually those belonging to marginalised Bengali-speaking communities – on a mere suspicion or anonymous references of them being illegal foreigners. The court directly questions this practice using the Foreigners Act of 1946, which is what the FTs use to de-nationalise suspected illegals.
The court argues pointedly that the police had no “material basis or information” at hand to do so in Ali’s case. Noting that “nothing has come on record to indicate even an iota of evidence against him,” the bench goes on to call the police’s charge against Ali a “bald allegation.”
In short, the court says that “suspicion” cannot be the sole basis to make a judgment on an individual’s citizenship status. This might seem like an obvious observation in the scheme of liberal jurisprudence, but in Assam, “suspicion” has a socio-legal life of its own.
What’s especially important is the court’s observation that the police did not share the material evidence on which it based its allegation against Ali with the accused. By failing to do so, the court argued that the authorities, including the Tribunal, deviated from the “settled principles of natural justice.”
In fact, the bench goes on to fault the authorities for mis-construing the words of the 1964 executive order which created the FTs. It points out that in Ali’s case, the police and Tribunal overlooked the order’s direction to share the “main grounds” of the allegation with the accused, thus rendering a “fatal blow to the entire exercise.”
These observations and arguments are critical as they expose the systemic opacity of Assam’s foreigner detection framework, which often comes in the way of its victims seeking legal recourse. It is also this in-built opacity that renders the whole regime thoroughly arbitrary.
Literacy of Victims
Remarkably, the court shines light and puts judicial imprimatur on something that activists, journalists, lawyers and scholars had been highlighting for many years now – the dismal literacy levels in Assam that hinder the common people, especially those from marginalised socioeconomic backgrounds, from understanding and acquiring proper documentation.
Many end up falling through the crevasses of Assam’s complex and heavily paperwork-based citizenship determination regime not because they are actual illegals from Bangladesh, but because they do not possess formal property documents tying them to the state. “It is neither difficult nor inconceivable to fathom such [a] scenario amongst the rural populace, including within Assam,” the court observes astutely.
In a related context, the court also directly addressed a very specific pathology of the FT regime that is also refracted in the NRC process – dismissal of evidence based on minor discrepancies in spellings and dates. It argues that the Nalbari FT was “totally oblivious” to the bitter reality of Indian bureaucratic practices wherein enumerators often make minute errors in noting down names and dates of birth of people. By doing so, the court delivers a simple yet truly exceptional reminder – the onus of maintaining proper civil documentation is as much on the state as on the people of this country.
To assert its arguments, further, the court cites two things: one, the dismal literacy figures for the state of Assam in the 1960s and 1970s; and the variations between English and vernacular languages across India. Both of them together would automatically result in grave inconsistencies in spellings of names in formal documents. The bench even notes that differences in pronunciation of certain names could translate into spelling variances.
This reflects the bench’s nuanced understanding of how formal documentation interacts with the distinct social context of India. As ludicrous as it may sound, FTs in Assam have stripped many of Indian citizenship on the sole basis of minor spelling and date discrepancies. A 2022 study by DAKSH India of 818 orders passed by one FT in Hajo between 16 June 2017 and 30 December 2019 showed that in 38 percent of the cases, documentation was rejected because of spelling errors.
In that sense, the apex court’s sharp observations could serve as critical judicial precedent for future writ appeals against adverse FT orders. It is especially noteworthy that the court took the broad view, arguing that Ali’s documents had “minor discrepancy(ies)” but their authenticity cannot be doubted. One expects the FTs to take this context-sensitive approach while making judgments about people’s citizenship status. The reality, of course, is vastly different.
A People-centric View
Beyond the fine legalese of it, the judgment’s victory lies in its human-centric view of the whole citizenship issue in Assam. By repeatedly reminding the state that FT orders have very real and serious consequences on the lives of people, it exposes the human costs of the whole regime in the form of mass detentions and deportations.
It is precisely because of this reason, the court argues, that the strength of the material evidence on which accusations are made is important.
Extraordinarily, the bench also talks about something that higher courts in India doggedly avoid deliberately or out of a genuine lack of knowledge while dealing with citizenship cases: statelessness. It says that if the supposed home country – such as Bangladesh – refuses to accept a deported person as its citizen, then they “would be rendered stateless, and languish for the remainder of his life in confinement.”
It is heartening to see the deployment of a human rights-oriented and protection-centric vocabulary by the Supreme Court in a citizenship case. This judgment could, in that sense, pave the way for further judicial interventions to humanise citizenship-related jurisprudence in India. This judgment, therefore, carries strong precedential value for not just Assam, but all of India.
In Assam, specifically, it could aid victims of the FT-centric foreigner detection regime to seek fair trial as legal recourse. One also hopes that it will encourage the FTs and police bureaucracy to become more transparent, just and unbiased in their functioning.
This isn’t the first time a constitutional court has called out the many lapses within Assam’s FT regime. In November last year, the Gauhati High Court too had criticised a Tribunal in Bongaigaon for declaring one Forhad Ali as foreigner without any basis. In 2022, the high court, while hearing an appeal against an adverse FT verdict on one Shefali Rani Das, held that “citizenship being a very important right of a person which should not be decided one sided.”
But, this is the first time that the highest judicial institution of the country has done so – that too in a manner that looks far beyond the deep-seated anxieties of the state and instead, foregrounds the endearing vulnerabilities of hapless individuals, such as Rahim Ali, who are caught in a quagmire of law and paperwork for no fault of theirs.
(Angshuman Choudhury is a New Delhi-based researcher and writer from Assam. Anjuman Ara Begum is an Associate Professor in the Department of Law at the Royal Global University, Guwahati. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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