Assam: 100 FT members continue in office even after expiry of terms!

expiry of terms Image Courtesy:way2barak.com

As many as 100 members of Foreigners’ Tribunals in Assam are working despite their terms having come to an end in May this year. What’s worse, is that though a request was made to the Ministry of Home Affairs (MHA) to evaluate whether their terms could be extended, the ministry did not respond.

The matter came to light during a hearing of the Civil Writ Petition – 1754/2015 before the Gauhati High Court. Respondents in the case include the Secretary of the Home and Political Department of the Government of Assam, Union of India represented by the MHA as well as the Ministry of External Affairs (MEA), and finally the Accountant General of Assam. HK Das and A Das are serving as amicus curiae in the matter.

The matter was listed out of turn on August 19, 2021 at the insistence of HK Das. The court recorded, “… the matter has been listed out of turn, on a request made by Mr. H. Das, learned amicus curiae, urging that there is a serious issue pertaining to the validity of the opinions rendered by as many as 100 Members of the Foreigners Tribunal, whose term had expired on 23-05-2021 and although they are still functioning as the Members of the Foreigners Tribunal, their appointment orders have not been extended till today.”

It further recorded, “Mr. D. Saikia, learned Advocate General, Assam appearing for the State submits that the Home Ministry of the Govt. of Assam has already sought necessary clearance from the Ministry of Home Affairs, Govt. of India, but no response has still been received, as a result of which, proper notification could not be issued by the State Govt. till today.” Also, “Mr. R.K.D. Choudhury, learned ASGI submits that he has already sought instruction from the Home Ministry on the aforesaid issue and shall place the stand of the Ministry on record in the form of an affidavit, on or before 26-08-2021.”

The matter was adjourned till August 26, but the bigger questions still remain:

How can FT members be allowed to operate after expiry of term?
If they pass orders in FT cases even after the end of their terms, are these orders to be deemed invalid, especially if they do not receive a term extension at a later date?
What does this mean for the people against whom FT proceedings were conducted by these FT members?
Given how the burden of proof is on the proceedee, and that a large chunk of proceedees belong to economically weak sections and often find it difficult to appear for hearings, will they have to undergo the entire process of defending their citizenship before the FT again?

Citizenship is already a contentious issue in the state of Assam that already went through a bloody revolution that ended with the signing of the Assam Accord in 1985. Add to that, the mammoth and hugely expensive process of updating the National Register of Citizens (NRC). The final NRC published on August 31, 2019 left out over 19 lakh people, who will now be required to defend their citizenship before Foreigners’ Tribunals. But if the very tribunals that are to determine their fate, operate in such an unprofessional and possibly even illegal manner, do the tribunals themselves have any credibility?

The Gauhati HC order dated August 19, 2021, may be read here:

Setting up of new FTs and recruitment of additional FT members

SabrangIndia had previously reported that the Home and Political Department had issued an order on September 11, 2019, appointing as many as 221 additional FT members for a period of one year. On September 23, 2019, the same department issued an order to set up 200 new FTs. This was also confirmed in a submission before the Rajya Sabha by Minister of State (Home) G Krishna Reddy in March 2020.

The 221 people were to be appointed to 200 new FTs and fill 21 existing vacancies in the 100 existing FTs. They also underwent a two-day training session at the Assam Administrative Staff College, Khanapara, Guwahati on September 28 and 29, 2019 before taking charge of their posting at various FTs.

The Ministry of Home Affairs (MHA) had in principle agreed to set up as many as 1,000 FTs to dispose of citizenship related cases. However, at present only 100 FTs are functional.

SabrangIndia had also reported on how the new FT members appointed will work exclusively on NRC exclusion cases. Justice Suman Shyam of the Guwahati High Court had recorded the AGs submission on the newly recruited FT members, in an order dated February 12, 2021 as follows:

“Also heard Mr. R.C. Borpatragohain, learned Advocate General, Assam who has appeared in this case today for the first time, on being instructed by the Government and submits that a policy decision has been taken by the State not to assign regular work to the 200 newly appointed Members of the Foreigners Tribunal since the possibility of NRC rejection slip being issued in near future is very bright. The learned A.G. submits that as soon as rejection slips are issued the newly appointed Members of the Foreigners Tribunals would be required to decide appeals arising there-from and hence, the Government is of the view that they should not be assigned any other duty for now. Mr. Borpatragohain submits that the stand of the Govt. has been brought on record by filing an affidavit on 12-02-2021. However, the said affidavit is not on record.”

The AG further submitted “that the decision making process on the above issue is still under progress and therefore, some more time will be required to take a concrete view in the matter.”