Last week, Minister of State for Home G K Reddy told Parliament that between 1985 and February 28, 2019, Foreigners’ Tribunals in Assam have declared 63,959 persons foreigners in ex parte proceedings — or, in the absence of these persons. According to state government data presented in an affidavit to the Supreme Court and in the Assembly this year, FTs declared 1,03,764 persons foreigners between 1985 and August 2018. These would include many of the 63,959 whose cases were decided by ex parte orders until February 2019.
How do Foreigners’ Tribunals work?
These are a key player in the exercise to identify illegal immigrants in Assam, and in focus now ahead of the July 15 publication of the final National Register of Citizens (NRC). The Foreigners’ Tribunals — 100 existing and 200 more to be functional by September 1 — are quasi-judicial bodies meant to “furnish opinion on the question as to whether a person is or is not a foreigner within the meaning of Foreigners Act, 1946”. In 1964, the Centre passed the Foreigners’ (Tribunals) Order under provisions of Section 3 of the Act. The FTs get two kinds of cases: those against whom a “reference” has been made by border police, and those whose names in the electoral rolls have a D (Doubtful) against them.
Under what provision do Foreigners’ Tribunals pass ex parte orders?
Section 9 of the Foreigners Act says that “the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, not withstanding anything contained in the Indian Evidence Act, 1872, lie upon such person”.
Thus, the accused has to prove he or she is an Indian. “Since the onus is on the person, if he or she is absconding and doesn’t appear before the tribunal, the member can pass an ex parte order,”a former member of a Foreigners’ Tribunal, who did not want to be named, told The Indian Express.
Previously, under the Illegal Migrants (Determination by Tribunals) Act, 1983, the onus of proving one’s nationality or otherwise lay on the complainant. In 2005 (Sarbananda Sonowal vs Union Of India), the Supreme Court struck down the IMDT Act and held that it “has created the biggest hurdle and is the main impediment or barrier in the identification and deportation of illegal migrants”.
What are the circumstances under which ex parte orders are passed?
In an affidavit in the Supreme Court in April this year, the Assam government said, “In foreigners’ cases, it is seen that when one comes to know that an investigation is being made regarding his citizenship status or that a reference has been made against him, he shifts to other unknown places and there remains no option before the Foreigners’ Tribunals but to decide the cases ex parte.” The affidavit adds that in some cases, the suspected foreigner “appears before the Foreigners’ Tribunals on receipt of the notice and even files written statements along with few copies of documents” but eventually stops appearing on later dates.
“However, it is seen that he remains absent for quite a long period and the cases are disposed of ex parte on the basis of the copies of documents and written statements filed by him. These are the few reasons for which large number of reference cases are disposed of ex parte by the Foreigners’ Tribunals,” the Assam government told the Supreme Court.
But why do the accused stop appearing?
Families of persons who have faced Foreigners’ Tribunals and their lawyers cited various reasons, a key one being that the notice often fails to reach the accused. “A notice is served, say, at the rented house of a construction labourer where has was staying when the border wing of the Assam Police had investigated him months earlier. The person does not stay there anymore and has moved to work at another construction site in another district, and he won’t get the notice and won’t know that he has to appear at the Tribunal,” said lawyer Aman Wadud, who has represented many alleged foreigners at Gauhati High Court and Foreigners’ Tribunals.
“In a vast majority of cases, police don’t serve the notice of the Tribunal upon the accused — as a result, these persons are declared foreigners without their knowledge,” Wadud alleged. “In some cases, despite receiving the notice, many don’t appear or stop after a few appearances because of poverty, illiteracy and complexity of the procedure. There are also cases where the accused didn’t appear because of wrong advice by lawyers.”
The government affidavit mentioned the issue of the way notices are served. It said that in many cases, the “proceedees evade and refuse to accept the notices and therefore the notices are served in the substituted manner as provided”. “On receipt of the report of such service submitted by the process server, the cases are disposed of ex parte,” it said.
Rule 3A of the Foreigners’ (Tribunal) Order, 1964, says that if a Tribunal has passed an ex parte order and if the person has “sufficient cause” for non-appearance, the person has to file an application within 30 days of the order. If that happens, the FT member can set aside the ex parte order and decide the case accordingly. This allows FT members to decline to accept an application if filed after 30 days. Lawyers also argue that if an ex parte order has been passed, it is highly unlikely that the person will get to know of it within 30 days.
Can an accused contest an ex parte order?
The government affidavit said: “The said order may be reviewed by the Foreigners’ Tribunal if sufficient reasons are shown by the proceedee for his absence or for having no knowledge about the cases, within the absence or for having no knowledge about such order.”
The provision for review derives from CrPC Order 9 Rule 13, which says that if one satisfies the court that the summons was not duly served, or that one was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court can pass an order setting aside the ex parte order.
Not many lawyers, however, use this provision, according to the former Tribunal member. A Guwahati-based lawyer said many lawyers do not apply for a review because the accused has to appear before the Tribunal to file his appeal, and “if the order is not set aside that day, then he or she will be arrested”. Because of the risk of arrest, some lawyers, in fact, advise their clients to not appear on the final day of their case.
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What happens if an exparte order does not come up for review, or a review fails?
If police can track the person after the order, he or she will be arrested and put into a detention camp. If not, the person will be an ‘untraced foreigner’. Many ‘declared foreigners’ appeal in the High Court and then the Supreme Court against an order by the FT. There are many in Assam’s six detention camps — as a result of both ex parte and contested orders —whose appeals are pending in higher courts.