The Highs & Lows of Foreigners Tribunals that affects Justice Delivery: Assam

Foreign tribunals

A special Bench was constituted at the Guwahati High Court to monitor the functioning of the Foreigners Tribunals in Assam in pursuance to the directions given by the Supreme Court vide its order dated December 17, 2014 in three writ petitions it was hearing. These were petitions have been filed by Assam SanmilitaMahasangha(WP(C) No. 562/2012), Assam Public Works Vs. Union of India &Ors (WP(C) No. 274/2009) and the All Assam Ahom Association (WP(C) No. 876/2014).

The hearings of this special bench began on March 27, 2015 and since then subsequent hearings have taken place every month. Since the hearings are under directions of the SC, there is no petitionerbut anamicus curiae who assists the court in this matter, helping in monitoring of the functioning of Foreigners Tribunals in Assam.

Ever since the first hearing, various issues have come up before the Special Bench and it has, through its directions in every hearing kept a watch on the functioning of Foreigners Tribunals right from supervising the setting up of requisite number of Foreigners Tribunals, recruitments of FT members, appointment of Assistant government pleaders, training of members of FT as well as of Assistant Government pleaders, timely payment of salaries of employees of FTs, among other things.

Important submissions/observations
For the longest time, the FTs have been plagued with crucial issues such as lack of basic infrastructure making the day to day functioning difficult, location of FTs being far away leading to non-availability of lawyers for the respondents, non-establishment of required number of FTs on schedule, as directed by the Supreme Court in 2015.

The fate of the detained

In June 2015, this bench had raised the question that if the detainees cannot be sent to Bangladesh in absence of a treaty with Bangladesh, then “what purpose it will serve by undertaking the task of detection of foreign nationals by the Foreigners Tribunals.” This question has remained unanswered to date as the government has not furnished any response and the most pertinent and imperative question of the NRC exercise is still looming.

Location of Foreigners Tribunals

In November 2015, the court had asked the State government to ensure that the location of the FTs be made convenient for the respondents as well as the lawyers in order to avoid hardships for the respondents. Poor and marginalised sections of the Assam population have often been made to travel over 100 kilometres to defend their citizenship making the exercise a denial of natural justice.

The salary issues

For many months in 2015-16, the member of Foreigners Tribunals were reportedly not receiving their salaries on time and there was a delay of about 2-3 months which also the court asked the government to address this issue at the earliest. Clearly, this made members of FTs – which are quasi-judicial authorities– at the mercy of the State government, compromising both their independence and integrity.

The bench had also observed in December 2015 that the salaries payable to the members of FTs, who were duly appointed by the Guwahati High Court, were being referred to as “professional fees” instead of salaries, by the State Government despite of having represented to the court earlier that the error would not repeat. The bench reprimanded the government and said, “which goes to show that the State Government is not aware of the real functioning of the Tribunals and the learned Members presiding over such Tribunals”.

Issues were also framed at a subsequent stage which mostly addressed issues pertaining to smooth functioning of FTs, their infrastructure, security of FT members. The Court also observed that many of the Assistant Government Pleaders seemed untrained in handling cases of FT and required training. This also meant that there remains the issue of the denial of justice at these forums.

Making re-references

In February 2016, the government mooted an institutional mechanism to “scrutinize orders passed by the learned Members, Foreigners Tribunal particularly those where the references are answered in favour of the notices holding them to be citizens of this country so that in appropriate cases State can also question the legality and validity of such orders.”

It was submitted to the court that, “A Scrutiny Committee has been set up (since February 2019), to recommend filing of writ petitions in the High Court or for making fresh reference in respect of opinions rendered by Foreigners Tribunals which are found to be not acceptable”. This committee recommended filing petitions against 438 orders and writ petitions against 24 of such orders are already underway. The Border Police also made recommendations for making of re-reference in 551 cases while 1178 cases were being examined for making such re-references by the Border Police.

In June 2019, it was submitted to the court that, “24,339 numbers of cases have been screened and 433 numbers of cases have been recommended by State Level Screening Committee for filing writ petitions”. It was further submitted that, “675 numbers of cases have been sent back to the respective Superintendents of Police for making fresh reference.” As of September 2019, 75 re-references had already been made to the Foreigners Tribunals.

Lack of established mechanisms

In June 2018, it was submitted to the court that there was no mechanism to ensure that the orders of the FTs are delivered to the concerned Superintendent of Police for compliance. It was also submitted that “many references made by the Border police authorities in the State have not been registered by the Foreigners’ Tribunals, which have led to manifold complications”. Another important issue raised was of non-service of notice upon the proceedees by the police personnel attached with each of the Tribunals which may have led to ex-parte proceedings against the proceedees, thus seriously hampering fair dispensation of justice.

Seeking irrelevant information

In September 2018, a few members of FTs also brought to the notice of the court that the states’ Home and Political Department had sought certain information about them which was completely unconnected with their functioning as a member of the FT. Hence, the bench issued an order, “other than statements relating to working of the Tribunals, such as, registration and pendency of references, disposal of references, their break up etc., no other statements or personal information should be called for from the members. If any information is required to be called for from the members then prior approval of the Monitoring Bench shall be taken.”This sort of unhealthy scrutiny by the executive also raises serious questioning about the autonomy of these tribunals.

Provisions of trainings

The Court had also mentioned about a refresher course for members of FTs and said that “Superintendents of Police (Border) may also be involved since they play an important role in the detection and deportation of foreigners”. However, including the staff of Border Police in Assam for training courses was never considered by the government.

In February 2019, a counsel representing Foreigners Tribunals submitted that most of the FTs did not have Assistant Government Pleaders because Deputy Commissioners have not forwarded the names and the ones who are functioning as Assistant Government Pleaders are not discharging their duties properly.

No grievance redressal

In July 2019, it was brought to the notice of the court that there were several complaints received against members of FTs but there existed no mechanism for redressal of such grievances. The absence of a redressal mechanism still remains a lacuna in the functioning of FTs.
Among the many things that can be inferred from the abovementioned submissions made before the court and the observations made by the court monitoring the functioning of the FTs, the following are some alarming inferences:

Foreigners Tribunals were functioning without proper physical infrastructure for a very long time since 2017
Many FTs even lacked the man power in terms of supporting staff which were important for smooth functioning of the FTs, one of the most important cogs in the process of NRC.
One of the most important questions of this entire NRC process still remains unanswered – in the absence of a treaty with Bangladesh, what is the fate of the persons who are ultimately declared foreigners after having exhausted all their legal remedies?”
The FTs function without having a proper mechanism to address complaints against the functioning of such FTs, thus leaving an aggrieved personwith no door to knock and suffer at the faults of the FT silently.
The members as well as the staff of FTs remained unpaid and FTs remained understaffed for quite some time raising serious questions on the functioning of FTs and the credibility of the orders passed by these FTs during that time.
The State government was trying to seek irrelevant information from the members of the FT thus raising questions about the motives of the government and their interference in the functioning of FTs.
There also lacked proper mechanism to ensure that orders of the FTs are delivered to or communicated to the Border Police of Assam to ensure compliance.
There were reported instances of non-delivery of notices to the proceedees (persons against whom the FTs issued notice to further proceedings against them), which may have led to several ex-parte proceedings, leading to unfair detention of several persons.
The government’s move to file writ petitions against orders of FTs declaring some persons as non-foreigners and the liberty given to the Border Police to make re-references in already decided cases appears as a sinister move on the part of the government which will only increase the hardships already suffered by many people in Assam.

Additionally, the Guwahati High Court had taken suomoto cognizance based on an email sent by a FT member that at a Foreigners Tribunal in Morigaon, Assam, 288 cases were disposed of by the former tribunal member but detailed and signed opinions were not available in the records.The court also expressed dismay on such conduct of the former Tribunal member and said that, “In the ordinary course this would have called for some action, disciplinary or otherwise. We leave it at that.” Clearly, there is no provision to deal with such glaring errors on the face of the record committed by members of FT and hence it is possible that many such orders are flawed since the FT members are not held accountable. This order may be read here.

Ever since the NRC process has gained traction in Assam, many discrepancies in the system have come to light which not only raises questions on the efficiency of Foreigners Tribunals but also the effect it has had on the lives of the people adversely affected by this process and whether their fate is truly justified.

The latest order of the monitoring Bench dated can be read here: