INDIA’S COURTS ARE ALLOWING FOREIGNERS TRIBUNALS TO WREAK HAVOC IN ASSAM

Amnesty International India
GUWAHATI/BENGALURU/NEW DELHI: 27 November 2019 10:33 am

The Foreigners Tribunals have been enabled by the Supreme Court of India and the Gauhati High Court to create a statelessness crisis in Assam, Amnesty International India said in its new briefing ‘Designed to Exclude’ as it called for a review of the existing legislative regime governing nationality determination in India.

“Foreigners Tribunals, that determine the paramount right to citizenship in Assam are often dismissive, use derogatory language, control their own procedures and apply them in arbitrary ways”, said Aakar Patel, Head of Amnesty International India. “Holding governments accountable for the human rights abuses they commit has always been difficult. However, in this case, it is the judiciary that has aided the government institutions and Foreigners Tribunals in committing abuses with impunity,” said Aakar Patel.

Steeped in Discrimination

People appearing before the Foreigners Tribunals are not afforded the fair trial protections and human rights guarantees that flow from Article 21 of the Indian Constitution, applicable to both citizens and foreigners. This lack of protection has also been endorsed by the Gauhati High Court through its judgments in various cases. This includes reversal of the burden of proof on the person stands to be deprived of his/her nationality, depriving Doubtful Voters and Declared Foreigners of a right to a fair investigation, protection from multiple references, and a bar on extension of deprivation of nationality from one family member to another family member.

Samina Bibi*, who Amnesty International India interviewed for this briefing was declared a foreigner by the Foreigners Tribunal. One of the reasons given by the Tribunal was that she could not remember the constituency where her grandfather cast his vote in 1966. Abu Bakkar Siddiqui was declared a foreigner because his grandfather’s name was spelled Aper Ali in one document and Afer Ali in another.

In the absence of an appellate tribunal, most of those aggrieved by the opinion of the Foreigners Tribunal file a writ petition to the Gauhati High court. However, the Gauhati High Court has highly restricted its scope for hearing petitions against Foreigners Tribunals’ opinions. Besides, along with the Foreigners Tribunals, it has also failed to consider the vulnerabilities of the people who are demanded to prove their nationality, particularly women married at a young age, inter-state migrants, daily-wage labourers and mentally ill persons. The stringent burden of proof on the person suspected of doubtful nationality is absolutely divorced from the reality of documentation in India.

“For the last decade and a half, the Foreigners Tribunals have created havoc in Assam. They have not been held accountable by the courts, the Government of India and the Government of Assam. Now with the Union Home Minister of India, Amit Shah saying that there will be a nation-wide NRC, there is a possibility that there will be thousands of Foreigners Tribunals set up across the country. They will decide whether those who are left out of the NRC are Indian citizens or not”, said Aakar Patel.

Complicity of Courts

Created through the pre-constitutional and colonial Foreigners Act 1946 and under the Foreigners (Tribunal) Order 1964, Foreigners Tribunals were empowered by the Supreme Court of India to determine the citizenship of people in Assam. In 2005, hearing a petition filed by the current Chief Minister of Assam, Sarbananda Sonowal, the Supreme Court equated migration into Assam with ‘external aggression’ and held that the Illegal Migrants (Determination by Tribunals) Act, which determined whether a person is an irregular migrant or not failed the people of Assam in protecting them from such aggression, thus violating Article 355 of the Indian Constitution. This paved way for determination of citizenship by Foreigners Tribunals in Assam.

The Court’s observations were based on a report filed by the Governor of Assam in 1998 despite the report’s acknowledgment that in the absence of any credible or comprehensive data, it is relying on ‘theatrical extrapolations’ to establish the high incidence of irregular migration from Bangladesh into India.

This judgment led to a cascading effect in not only the lower courts but also other judgments of the Supreme Court such as Assam Sanhmilita Mahasangha v. Union of India (2014) and Assam Public Works v. Union of India (2019). These judgements operationalised the updating of National Register of Citizens in Assam and decided that the children of those declared foreigners by the Foreigners Tribunals or marked as Doubtful Voters or whose cases are pending before the Foreigners Tribunals will be excluded from the NRC.

“While states have a right to establish principles about how nationality is acquired, renounced or lost, they must do so within the framework of international human rights law. The decisions of the Supreme Court are inconsistent with international law including India’s obligations under the International Covenant on Civil and Political Rights, Convention on the Rights of the Child and Convention on Elimination of All Form of Discrimination against Women, besides being removed from the reality on ground”, said Aakar Patel.

“The Courts are complicit in peddling a narrative which is clearly not based on any facts. By labelling migration as a security threat and continuing to do so, the courts have created a system which is designed to exclude and wreck the lives of many in Assam”, said Aakar Patel.

The IMDT Act laid down the procedure to determine whether a person is an irregular migrant in a fair manner. It placed the burden of proving that a person is an irregular migrant on the State. Only a serving or retired District Judge or Additional District Judge could become a member of the Tribunal. Further, the procedure for referring a case to the Tribunal included vetting at multiple levels. In an event of an unfavourable opinion or difference of opinion between two members, an appellate tribunal reviewed the opinion.

“The Supreme Court preferred the quickness of Foreigner Tribunals to the fairness of the Tribunals set up under the IMDT Act. Holding the fair trial guarantees to be a barrier to ‘detect’ irregular migrants under the IMDT Act, the Supreme Court had argued that it was far easier to secure conviction of person in a criminal trial with capital punishment or life imprisonment as a sentence than establish that a person is an irregular migrant”, said Aakar Patel.

The Foreigners Tribunals places the burden of proving one’s Indian citizenship on the person suspected of doubtful nationality. It does not have an appellate body. None of its procedures lay down any guidance on how a reference can be made against a person to the Tribunal. It provides a time of 10 days, an unreasonably short window for people to produce their documents before the Tribunal after receiving a notice. Moreover, the eligibility criteria of Tribunal members has been gradually lowered over the years. The members do not have fixed tenures and are recruited on a contractual basis. An analysis of the affidavit filed by the Government of Assam in the Gauhati High Court shows that on an average, any member who declared foreigners in less than 10% of their disposed cases, stood the risk of being axed.

“If the Foreigners Tribunals replicate their functioning across the country, then we will probably witness one of the largest process of arbitrarily deprivation of nationality in the world”, said Aakar Patel.

*Names changed due to reasons of privacy.

Download the full briefing here.

Download the press release in Assamese here.

For more information please contact:

Nazia Erum
Email: [email protected]
Phone: 9606187741