As the NRC drive reaches its final stage, the Central government has sanctioned more tribunals. How will they work?

The story so far: Foreigners Tribunals, unique to Assam, are in the news as the final list of the National Register of Citizens (NRC) is to be published by July 31, on the directions of the Supreme Court. The Registrar General & Census Commissioner, India, under the Union Home Ministry, published the final draft list of the NRC on July 30, 2018 to segregate Indian citizens living in Assam from those who had illegally entered the State from Bangladesh after March 25, 1971. Nearly 40 lakh people were excluded from the final draft. In the course of the year, 36 lakh people filed claims against the exclusion; the remaining four lakh did not apply. To give a proper hearing to those excluded from the final list and to handle the influx of applications, the Ministry of Home Affairs sanctioned 1,000 additional tribunals. Of these, 400 will come up in the next one month before the final publication of the list.

How many tribunals are there?

Assam at present has 100 Foreigners Tribunals across the State. According to the State’s Home Department, there were initially 11 Illegal Migrants (Determination) Tribunals (IMDT). These were converted to tribunals after the Supreme Court scrapped the Illegal Migrants (Determination by Tribunals) Act, 1983 in 2005. The State government established another 21 tribunals that year. Four more were added in 2009 and the remaining 64 were established in 2014 for disposal of cases that were piling up in the tribunals.

Who runs the tribunals?

Each tribunal is like a quasi-judicial set-up. It’s headed by a member appointed under the Foreigners Tribunal Act, 1941 and Foreigners (Tribunal) Order, 1984 as in the guidelines issued by the government from time to time. A member can be a retired judicial officer of the Assam Judicial Service, a retired civil servant not below the rank of Secretary and Additional Secretary with judicial experience, or a practising advocate not below the age of 35 years and with at least seven years of practice. The member is also required to have a fair knowledge of the official languages of Assam (Assamese, Bengali, Bodo and English) and the State’s historical background giving rise to the foreigners’ issue.

An advertisement by the Gauhati High Court on June 10 for preparing a panel of 221 tribunal members says the appointment of each member for a year may be extended on “need basis” subject to their attainment of 67 years. A retired judge or civil servant appointed as a tribunal member is entitled to a pay package similar to what he or she drew at the time of superannuation besides allowances; the current salary for an advocate is ₹85,000 per month plus allowances.

Why was 2005 a watershed year?

Cases of suspected foreigners used to be handled by the IMDTs under the IMDT Act that the Indira Gandhi government passed in 1983 during the peak of the Assam agitation seeking ejection of people staying illegally in the State. The system changed after the Supreme Court struck down the IMDT Act in July 2005 after hearing a petition by the present Assam Chief Minister Sarbananda Sonowal, who was an Asom Gana Parishad leader then. The IMDT Act — applicable only in Assam while the detection of foreigners was done under the Foreigners Act, 1946 elsewhere in India — was said to provide special protection against undue harassment to the ‘minorities’ affected by the Assam Agitation. The burden of proving citizenship or otherwise under the IMDT Act rested on the accuser living within a 3 km radius of the accused and the police, and not on the accused as required by the Foreigners Act. The Supreme Court , while scrapping the IMDT Act in 2005, echoed the indigenous organisations and the Assam government’s observation that the Act “has created the biggest hurdle and is the main impediment or barrier in the identification and deportation of illegal migrants”.

How do the tribunals work?

The Assam Police Border Organisation, a wing of the State police tasked with detecting foreigners, readies the cases for the tribunals to decide who is a foreigner and who is not. The government allegedly gives the border police a monthly target to detect people of suspect citizenship and these cases are referred to the tribunals. Several judgments have been contested with Gautam Soren, a tribunal member in central Assam’s Morigaon district observing in August 2017 that foreigners’ cases “have assumed the form of industry as each and every person involved” have been “trying to mint money by any means”. The Morigaon tribunal also noted that the “unfair practices involved turn Indians into foreigners and foreigners into Indians on the basis of fake or duplicate documents.” A few days ago, the All Assam Minority Students’ Union said the border police and tribunals were “foreigner-making factories” and “officials have orders to harass the religious and linguistic minorities”.

What is the amended Foreigners (Tribunals) Amendment Order, 2019 that has replaced the 1964 one?

The Ministry of Home Affairs amended the Foreigners (Tribunals) Order, 1964 which empowers district magistrates in all States and Union Territories to set up tribunals. Earlier, such powers to constitute tribunals was vested with the Central government alone. The Ministry clarified that the amendment laid down the modalities for the tribunals in case of appeals made by persons not satisfied with the outcome of claims and objections filed against the NRC. The Ministry said the amendment also provides for reference by district magistrates to the tribunal for its opinion as to whether the appellant is a “foreigner” or not. “Since the Foreigners Tribunals have been established only in Assam and in no other State of the country, this amendment is going to be relevant only to Assam at present,” the Ministry has said.

The amended order also empowers individuals to approach the tribunals. Earlier, only the State administration could move the tribunal against an illegal foreigner. It also says that the final order of the tribunal shall be given within a period of “one hundred and twenty days (four months from the date of production of the records”.