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Lawyers alarmed by Supreme Court move to allow expansion of Assam’s foreigners’ tribunals

The SC move is seen as troublesome as the foreigners’ tribunals have been accused of being arbitrary, opaque and bypassing the rule of law.

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New Delhi: Lawyers and legal experts have expressed serious concern over the Supreme Court’s move to approve the appointment of retired bureaucrats as members of 200 new foreigners’ tribunals in Assam.

They have also voiced their apprehension over the court’s decision to allow a reduction in the experience required by lawyers to be eligible to apply for appointment as members (presiding officers) of these tribunals. The 200 new tribunals are expected to be functional by September.

The development, they said, is troublesome in the light of the allegations of arbitrariness and opacity levelled against members of the existing tribunals. There have also been several reports that these foreigners’ tribunals have been bypassing the rule of law.

The apex court decision came just two days after the Gauhati High Court set aside on 28 May 12 orders by a tribunal, taking note of several lapses.

What is a foreigners tribunal?

Foreigners’ tribunals were set up under the Illegal Migrants (Determination by Tribunals) Act, 1983, which was  struck down as unconstitutional by the Supreme Court in 2005. These quasi-judicial bodies determine the citizenship of Indian residents under the Foreigners’ Act, 1946.

The system requires border police to investigate cases and refer them to the tribunals.

The process runs parallel to the National Register of Citizens (NRC) in Assam, a draft of which left out over 40 lakh people in July last year. The NRC is meant to be a definitive list of genuine Indian citizens in Assam, and is being updated for the first time since 1951 to identify “illegal immigrants”.

In case of a conflict between the two processes regarding an individual’s citizenship, the Supreme Court had clarified last month that a tribunal’s order declaring a person as an illegal foreigner would be binding and prevail over the government’s decision to include her/his name in the NRC.

Unreasoned orders

Despite the stakes involved for lakhs of people, the Gauhati High Court, in its 28 May order, came across tribunal orders recorded without detailed reasoning.

The 12 quashed orders were all passed in 2016 and 2017 by Surajit Chakraborty, then-member (presiding officer) of the foreigners’ tribunal number 2 in Assam’s Nalbari district.

The lapses were brought to the high court’s attention only after the current member-in-charge of the tribunal noticed the deficiencies, and sent a report to the court as well as the state government.

Of the 12 cases, 10 were disposed of after declaring the litigants as Indians, while in two, they were declared foreigners. Detailed orders were not available in five of these cases, while they were not signed in a few other cases, rendering them unimplementable. Two other cases were fixed for arguments, but no subsequent proceedings were recorded.

The high court bench, comprising Justice Manojit Bhuyan and Justice Prasanta Kumar Deka, said that these orders, passed without a reasoned opinion, amounted to “no order in the eye of law”. All the 12 references were then directed to be heard afresh from the respective stages.

In doing so, the court recorded its disappointment “over the way the member conducted himself”, but stopped short of taking action against him, observing: “This was not expected. In the ordinary course, this would have called for some action, disciplinary or otherwise. We leave it at that.”

The high court order, legal experts said, deepens the doubts that have long been raised on the functioning of these tribunals.

Also read‘Fake’ complaints against genuine Indian citizens registered in NRC raises concern

Ignoring principles of natural justice

According to Supreme Court lawyer Mehmood Pracha, the proceedings before these tribunals do not follow the principles of natural justice.

Pracha said neither the investigating officer who refers cases to the DSP, nor the DSP who further refers the case to the tribunal, is cross-examined. To make things tougher, suspected people have no access to government records such as the 1951 National Register of Citizens list and voters’ list up until 1971.

“That’s how most of these cases are resulting in convictions,” Pracha said.

He alleged that even though the procedure for functioning of tribunals has been set out in State of Assam v Moslem Mondal by the Gauhati High Court, it is not being followed by the tribunal members.

“This is troubling, especially considering that you cannot file an appeal against the tribunal order. You can only file a writ before the high court and then approach the Supreme Court. So, they should be at least given a fair trial, but that is not happening,” he said.

Before 2015, foreigners’ tribunals were manned by retired district court judges or additional district judges. But when 64 new tribunals were set up, new members had to be appointed from the ranks of advocates with more than 10 years’ experience, because there was a lack of judicial officers for the task.

The minimum eligibility requirement for lawyers has further been lowered now, to include those who are at least 35 years of age and have seven years of experience. Further, the apex court has also suggested that the posts be open to retired civil servants, not below the rank of secretary and additional secretary, with judicial experience.

Pracha said the appointment of inexperienced lawyers was one of the biggest problems afflicting the functioning of these tribunals. He also highlighted the lack of a procedure for choosing these members.

“The judgments passed by them are absolutely without following the principles of natural justice. No procedure is followed,” he alleged.

ThePrint emailed Kumar Sanjay Krishna, Assam’s additional chief secretary and Ashutosh Agnihotri, commissioner & secretary, with queries about the measures being taken to ensure propriety of proceedings before these tribunals. There was no response from them until the time of publishing this report.

Also read‘Foreigners’ in Assam tribunals are just unlucky Indians fighting cruel paperwork demands

Not one ‘Indian’ in a year

Several lawyers well-versed with the proceedings discussed details of what they said was the “injustice” being meted out by the tribunals.

Barpeta-based lawyer Abhijeet Choudhury alleged that 32 tribunal members who refused to bow to the mounting political pressure to declare people as foreigners were in the past suspended before their term ended, with a note that their performance was not satisfactory.

Besides, he said, lawyers appointed as tribunal members would not earn more than an average of Rs 5,000 per month in the past, but are now being paid over Rs 1 lakh per month. He claimed several members have not declared even one person as an Indian over the past year for the fear of losing their jobs.

This has led to people being declared foreigners for minor spelling mistakes or age deviations, Choudhury alleged. A few illiterate ones are also asked to accurately calculate the age when their daughters got married or their son’s age when their father passed away. A day’s mistake in calculation is leading to them being declared foreigners, he claimed.

A Guwahati-based lawyer who has represented several people before these tribunals echoed these allegations, saying there seems to be a “competition” between members as to who declares more people as foreigners.

The injustice, he said, is an “open secret”.

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