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The NRC (National Register of Citizens) exercise in Assam was concluded recently and the final register of citizenship was released, to demarcate the Indian population into citizens from illegal migrants. The final register excluded around two million residents of Assam who now have to prove their citizenship by preferring an appeal against such exclusion from the register in the pre-established Foreigners’ Tribunals of Assam.
The tribunals would then hear appeals, admit evidence and pronounce upon the citizenship of an individual before detaining anyone as an illegal migrant. There are currently one hundred Foreigners’ Tribunal functioning in Assam and the number is proposed to be increased to five hundred fifty-one tribunals by the end of the year.
During these times, Assam saw massive revolts against the arbitrariness of the NRC and abuse of due process of law after around two million residents (some even including retired members of armed forces, government servants and civil servants) were excluded from citizenship register. However, the said exclusion under no law amounts to being stateless or being an illegal migrant. People left off continue to enjoy all the rights as before till they exhaust all the remedies available under the law.
What are these tribunals?
Peculiar to Assam, the Foreigners’ Tribunals are quasi-judicial courts mandated to hear appeals of those excluded from the NRC. They function under The Foreigners Act, 1946 and were set up through an executive order [Foreigners’ (Tribunal) Order, 1964] rather than a legislative design.
The genesis of foreigners’ tribunals dates back to 1961. The registrar general of census had assessed that Assam was a hotspot for two lakh twenty thousand infiltrators, majorly from Pakistan and Bangladesh. Following the assessment, the government took measures to push these infiltrators back and for aid, set up the “Assam Police Border Organisation” police wing (now known as the “Border Police”).
In the following years, thousands of these alleged infiltrators were summarily pushed back without proper judicial proceedings. However, due to mounting national and international pressure for the requirement of a proper judicial system to asses and decide the case of these infiltrators, the government through an executive order, established the Assam’s Foreigners’ Tribunals.
The influx of illegal immigrants was still hard to check so a tripartite agreement (between the centre, state and All Assam Students Union) called the “Assam Accord of 1985” was entered into to identify the citizens of India in Assam. It set 25th March 1971 as the cut-off date after which, any individual entering the state would be deemed as an illegal immigrant. The Citizenship Act, 1955 was amended to the same effect.
Lists of citizens were released multiple times after that but the final NRC excluded nearly two million people. They are allowed one hundred twenty days to challenge the exclusion of their names from the citizenship register in the Assam’s Foreigners’ Tribunals which would then declare them as citizens or foreigners based upon the documents of proof of citizenship they put forth.
The people excluded from NRC are to first approach the Foreigners’ Tribunal to argue against the exclusion. If unsatisfied by the decision of these tribunals, one may prefer an appeal to higher courts. Further, the government of Assam has also promised free legal aid to the excluded individuals during the entire process through the District Legal Services Authorities (DLSA).
Problems with the tribunals
The tribunals are being mocked as being “kangaroo courts” stating that the hearings and trials conducted fall foul of established principles of fairness and justice.
It is a rudimentary principle of criminal and evidence law under common law systems that one who asserts a fact has to prove the same. Therefore, ideally, under The Foreigners Act, 1946 whose aim was to deal with foreigners, not citizens, it should be upon the government to prove that the names excluded from NRC are illegal migrants as it asserts so.
However, the act reverses the burden of proof. People who have a strong presumption of being Indian citizens in their favour have to now firstly, prove their citizenship through myriad of pre-1971 legacy linkage documents and materials on record and secondly, have to prove the legitimacy of these documents themselves which often involves justifying spelling mistakes, typographical errors in the voters list and other documents, prepared by the government itself.
It should be the state’s (or the prosecution’s) duty to rebut this presumption which was the basic scheme of the Illegal Migrants (Determination by Tribunals) Act (IMDT), 1983 but the act was struck down as unconstitutional by the Hon’ble Supreme Court by invoking Article 355 (entrusting the duty upon the centre to protect the states from “external aggression” – alleged migrants in this case). The heavy burden of proof now lies on the person whose name was arbitrarily omitted from NRC.
There have also been allegations of arbitrariness on the part of the border police. During the revision of electoral roll in 1997, Assam’s election commission had marked many of Assamese resident voters as “D(doubtful)-voters” under the suspicion of being illegal migrants.
The case of D-voters is referred to a special branch of Borden police which then investigates and refers suspicious people to these Foreigners’ Tribunals. These investigations are alleged to be at the behest of convenience and arbitrariness and often haul up the weak sections of the society with bare means to defend themselves.
The Foreigners’ (Tribunal) Order, 1964 affords the central government full control over appointing presiding members of tribunals and determining their service contracts and salaries. The contracts of members are renewed upon satisfactory results of an evaluation done based on the percentage of individuals a member has declared as a foreigner as opposed to the percentage of cases disposed of (which should have been the ideal disposition of the government towards the suspected illegal migrants).
This grants undue scope of executive interference in the judicial function and autonomy of the tribunals, inspiring little confidence in the due process of law. Further, the act leaves it completely upon the tribunals’ discretion to pronounce upon a person’s citizenship and prescribes no set procedure of identifying and dealing with foreigners out of citizens whatsoever. It also empowers the tribunals to determine their procedure while conducting hearings.
Many tribunals don’t allow appellant’s lawyer the opportunity to cross-examine the investigating officer of the Border Police who referred a suspected individual’s case to the tribunal. Many tribunals also do not open the hearings to be public (which they are mandated to do under the Code of Civil Procedure and the Code of Criminal Procedure).
During the setup of these tribunals, the government had instituted district level committees to scrutinise the ruling of the Foreigners’ Tribunals but most of them remain disbanded.
From exclusion from NRC to inept trials, the path for an allegedly illegal migrant is riddled with arbitrariness and disregard of canons of fairness. Thousands of Assamese people are harassed as being illegal migrants arbitrarily by the government, election commission and the border police. While independent practitioners, journalists and NGOs are rushing towards the aid, the governmental infrastructure remains largely defunct and helpless for these alleged migrants.
The legal provisions themselves require serious amendments for the tribunals to be more autonomous, free and fair. In such scenarios, revamping the foreigners’ tribunals, amending laws and closing the Assamese chapter fairly should be the priority of the government as opposed to planning a nationwide NRC.
Author: Oshin Malpani from NALSAR University of Law, Hyderabad.
Editor: Tamanna Gupta from RGNUL, Patiala.