The Supreme Court’s taking of strong exception to BJP leader and UP cooperative minister Mukut Bihari Verma’s purported statement — that the “Supreme Court is ours” and the judgment in the Babri case will be in favour of Hindus — is reassuring. Unfortunately, Foreigners’ Tribunals (FT) in Assam have been working in the most partisan manner. Gauhati High Court, in the latest order of its suo motu proceedings — in response to an email dated April 23, 2018, by the member-in-charge of Morigaon FT to Assam Government — has quashed FT’s proceedings of Morigaon in 57 cases, and, ordered these cases to be heard afresh. The court was shocked at some of the details of the 282 cases dealt with by the FT: 17 persons on a note sheet were declared Indian citizens, but the order declared them foreigner; in 11 cases, judgment was not found on record; in 32 cases, people were earlier ex-parte declared foreigners but were eventually found to be Indians, though the earlier court orders were not vacated; in five cases, dual judgments were discovered and, in two cases, proceedings were to be initiated against Rabindra Chandra and Pachar Ali, but a different pair — Rahima Khatun and Anwara Khatun, who were not in any way related to the proceedings — was declared as foreigners.
Similarly, Mujibur Rahman, a serving assistant sub-inspector of BSF and his wife were ex-party and, without any notice, declared foreigners by the Jorhat FT though the couple belong to a family of freedom fighters. They even had property documents of 1926. The Gauhati High Court subsequently quashed this order. A Kargil war hero and honorary lieutenant, Sanaullah, was declared a foreigner and sent to a detention centre. The high court had to grant him bail to save him from detention.
Though technically quasi-judicial bodies, these tribunals, lately, have divorced all the canons of fair trial, almost becoming another arm of the BJP government in Assam. Strangely, the working of these tribunals has been approved by the Supreme Court. The Indian Constitution was amended in 1976 to insert the provision about tribunals: It talks of administrative and other specialised tribunals. However, the Constitution doesn’t mention any tribunal to pronounce on the citizenship of people.
Foreigners’ Tribunals were established under The Foreigners’ Act,1946, that is, a pre-Constitution and colonial legislation that was meant to deal with foreigners rather than citizens. By 1979, we had 10 such tribunals, which rose to 64 in 2015. Today, we have some 100, with another 200 being established now. They were given the power to devise their own procedures, and thus the inconsistency in the workings of these tribunals.
Initially, they were supposed to have retired senior judicial officers of district judge or additional district judge rank. Now, even civil servants and lawyers with just seven years’ experience are appointed as FT members. In terms of training, they have to undergo just two days’ orientation course. Shockingly, the services of members whose record in declaring foreigners is poor, are dispensed with. There is no security of tenure for them. Initially they used to be appointed for two years, this has now been reduced to one year.
Under Section 2 (a) of the Act, a foreigner is a person who is not a citizen. Thus it will be applicable only to persons against whom there is strong evidence of being a foreigner — in the sense that s/he was caught while entering India or was in possession of a passport of another country. It is a shame that the cases of three lakh people, who were declared Doubtful Voters in 1997, without any enquiry or notice, have been excluded from the NRC and now have to face the FTs.
In many cases, almost all the residents of villages are being summoned at short notice (24 to 48 hours) to appear before the FTs, situated at distant places, in many cases they are 200 to 300 miles away. Though Para 3 (1) of Foreigners’ Tribunal Order of 1964 clearly mandates that notices shall mention the “main grounds”, notices issued by FTs do not mention any ground. People have to defend themselves without knowing the charges.
The genesis of denial of due process by these FTs really lies in the SC’s controversial decision in Sonowal (2005) that struck down as unconstitutional The Illegal Migrants (Determination by Tribunals) Act (IMDT), 1983, by invoking Article 355 that imposes a duty on the Centre to protect the states from external aggression. It seems the court got carried away by the exaggerated figures of infiltration provided by governor S K Sinha in his highly prejudiced 1998 report. Whenever the constitutionality of a parliamentary law is challenged, as per R M Dalmia judgment (1957), the court has to start with the presumption in favour of constitutionality. Moreover, the court has to examine whether the subject of legislation falls in the state list. If it doesn’t, the law is to be upheld as constitutional except where it violates any fundamental right. The apex court did not undertake this exercise as IMDT Act was certainly constitutional by these parameters. Strangely, the court first defined “state” in broader terms to include Assam residents and then, on the basis of unverified figures of illegal infiltration from Bangladesh, concluded that there is a threat to the security of the state. That the state does not mean mere territory but also the people living there, will have huge implications when the unilateral abrogation of Article 370 is examined by the apex court on November 14.
The burden of proof under our legal system is on the person who makes an assertion. Since criminal law is a state instrument, it is always on the prosecution: It is the prosecution’s duty to prove its allegations beyond any doubt. If there is the slightest doubt in the prosecution story, the benefit is always given to the accused. Section 9 of Foreigners’ Act has put the burden of proof on the alleged foreigner. But then, this section is talking of foreigners not citizens. It should have no application in cases of citizenship by birth. There is a strong presumption in favour of citizenship and the burden of proving that a person is not a citizen, has to be on the person who makes an allegation against one’s citizenship.
To ensure that genuine Indian citizens are not deprived of their citizenship, the IMDT Act had provided that the prosecution shall prove that the accused is not an Indian citizen. Abandoning all known principles of determining constitutionality of the law, the apex court, just on the basis of the burden of proof being on the prosecution, struck down IMDT Act. Because of this controversial judgment, genuine citizens are today excluded from NRC and many are forced to live in miserable conditions in detention centres. More than 50 have reportedly died in these centres. But the court overlooked the fact of their poverty and has put the condition of two sureties of one lakh each.
Due to the erroneous judgment of the SC, the heavy burden of proving citizenship is now on the citizens — they have to prove it on the basis of pre-1971 legacy and linkage documents. The law completely ignores the illiterate and destitute’s daily struggle for livelihood — they cannot possibly be meticulously keeping documents, particularly when most of them have had their homes ravaged by floods five to seven times on an average.
Till March 2019, as many as 1.17 lakh people had been declared foreigners, of which 63,959 were declared as such ex-parte. Since a nationwide NRC is now on the cards, let these FTs be brought under the strict supervision of concerned high courts and freed from governmental control. Let there be only persons with judicial experience on board, and let the FTs follow the due process. Otherwise, these kangaroo tribunals will damage India’s standing as a nation committed to fair trial and justice.
This article first appeared in the print edition on October 8, 2019 under the title ‘Kangaroo tribunals’. The writer is vice-chancellor, NALSAR University of Law, Hyderabad. Views are personal.
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