In a sharp and insidious move that gives life to the BJP manifesto on the Citizenship Bill, the Ministry of Home Affairs (MHA) under Amit Shah has issued a controversial notification on May 30, 2019.  This newly amended order, that spells a clear road map for those not included in the National Register of Citizens (NRC), it also gave unspecified and unprecedented powers to the Foreigners Tribunals (FTs) – the quasi-judicial authority that assesses the question of authenticity of a person’s citizenship.

The Order may be read here,

Bur there is more.

The new Foreigners (Tribunals) Amendment Order 2019, also allows states to constitute their own FTs, earlier unique to Assam, to address the question of citizenship of a person. The amendment empowers district magistrates in all states and union territories to set up FTs to detect foreigners. This is arguably a move that Courts could strike down as violative of the basic tenets of the Indian Constitution and Citizenship Act itself.

The amendment substitutes “the central government” with “the central government or the state government or the union territory administration or the district collector or the district magistrate,” allowing all latter authorities to refer to the question: whether a person is not a foreigner within the meaning of the Foreigners Act, to FTs for its opinion and thereby creating one.
Unlike regular courts of crime, where a person is presumed innocent until proven guilty, and the onus is on the prosecution to prove the guilt of the accused, in an FT hearing, the burden of proof lies on the person whose citizenship is under question. The person under question has to prove both the authenticity of their citizenship and the authenticity of the documents used to build his/her case.

The Home ministry has also re-ordered existing paragraphs and added two additional paragraphs in the new Order, granting uncertain yet indefinite powers to the FTs.
Sub-clause 17 of the new paragraph 3A in the Order is of particular interest here. It reads: “Subject to the provision of this Order, the Tribunal shall have the power to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.”

The new clause assumes significance given the propensity of the FTs to decide cases ex parte (in the absence of the proceedee). The FTs are now granted power to regulate its own procedure for the disposal of cases. They are given a carte blanche (to operate as they please) of unlimited or unspecified powers.

The draft NRC in Assam was published on July 30, 2018 amid huge controversy over the exclusion of 40.7 lakh people from it. With the final NRC getting ready to be published on July 31 after Claims and Objections, the Centre has set the directive for those excluded to approach the FTs.

What tightens the noose on citizenship further is the inclusion of new paragraphs 1B and 3B in the Order, which restrict an appeal against detection as foreigner solely to the FTs and under the specific “terms and conditions”.

For instance, in the case of NRC, if an appeal is made then the new order allows the District and Sub-District Registrar or Local Registrar of Citizen to furnish any information pertaining to the determination of the citizenship status of a person.

If an appeal is not made, the concerned authority “may refer to the Tribunal for its opinion”. Regardless, the FTs are to deliver their verdict within four months of the missing persons submitting their records.

Furthermore, the new Order makes FTs the final decision-making body on citizenship in Assam or elsewhere by setting a condition on hearing an appeal. Sub-clause 10 of the new paragraph 3A says that the FTs may issue notice to the appellant and the district magistrate for hearing of the question of one’s citizenship only if, after producing records, it “finds merit in the appeal”.

Given the quasi-judicial nature of the FTs and the several concerns that have been raised about its functioning, opening the interpretation of the word “merit” to the wisdom of the FT members poses an alarming development.

The new order disempowers those already vulnerable under the law’s jurisdiction by creating ambiguity over what constitutes “merit”. It increases the possibility of bias or an erroneous judgment.

If this order goes unchallenged, the Centre is going to help the Assam government in setting up 1,000 FTs by July 31 to ease the rush of the many claims for inclusion in the NRC. The central government is also in the process of giving its approval to the state government’s proposal to set up e-Foreigners Tribunals.

The Supreme Court-monitored NRC exercise, aimed at identifying illegal immigrants in the state that borders Bangladesh, was an exercise carried out in pursuance of the Assam Accord of 1985, and limited to that state. With this move, however, through an executive order, the MHA under the new regime has attempted to thwart all process and law to legitimise the FT mechanism. Remember the FTs are only quasi-judicial bodies that cannot replace the courts.

Amit Shah, then BJP President, now Home Minister, had made his indications quite clear during the fraught campaign in the run up to the 2019 polls. Now he holds a powerful constitutional post, that of the Union Home Minister. It does not take much to put two and two together and understand why he has been put there in the first place.
 

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FTs are quasi-judicial authorities that decide upon the question of authenticity of a person’s citizenship in Assam. Now, in other court proceedings, including those involving crimes like murder and dacoity, a person is presumed innocent until proven guilty, and the onus is on the prosecution to prove the guilt of the accused. However, in an FT hearing, the burden of proof lies on the proceedee i.e the person whose citizenship is being questioned, has to prove not only the authenticity of their citizenship, but also the authenticity of the documents that are being used to build the case. 

Giving FTs unprecedented and unspecified powers, therefore, appears to further dis-empower people who already face an uphill task and an uncertain future.

The May 30, 2019 MHA order issued by Anil Malik, who holds the rank of the joint secretary (Foreigners) amends the Foreigners (Tribunals) Order 1964 and to create a new Foreigners (Tribunals) Amendment Order, 2019 that comes into effect with the publication of the Gazette.

The amendment is made by the Central Government by exercising the powers conferred by section 3 of the Foreigners Act, 1946 (31 of 1946), which states, “The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into 1 [India] or their departure therefrom or their presence or continued presence therein.”  

Let us examine all the amendments and try to understand their implications for people in Assam.

Power of reference granted to multiple authorities:
The MHA order amends paragraph 2, sub para 1 of the Foreigners (Tribunals) Order, 1964, that originally reads as follows:

The Central Government may by order, refer the question as to whether a person is not a foreigner within the meaning of the Foreigners Act, 1946 (31 of 1946) to a Tribunal to be constituted for the purpose, for its opinion.

But the latest amendment says:
for the words “the Central Government may,”, the words “the Central Government or the State Government or the Union territory administration or the District Collector or the District Magistrate may,” shall be substituted.

What this means: Thus, the new amendment grants the power to refer people to multiple regional and local government, bureaucratic and judicial authorities. This widens the base of people who have the power to refer cases to FTs.

Additional provisions that grant FTs nebulous powers:
The MHA Order dated May 30, 2019 also provides for the inclusion of two additional paras and reordering the structure in the new Foreigners (Tribunals) Order 2019. Two of the provisions in the new paragraph 3A caught our attention:
Point 10: Upon production of the records, if the Tribunal finds merit in the Appeal, it shall issue notice to the Appellant and the District Magistrate for hearing specifying the date of hearing and such date shall be within thirty days from the date of production of the records.

Point 17: Subject to the provision of this Order, the Tribunal shall have the power to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.

What this means: This is a particularly disturbing development given how the word merit is not defined at all leaving the matter of determining merit entirely to the wisdom of the FT members. Given that FTs are quasi-judicial authorities and several concerns have been raised about their method of operation, ranging from selection of members and their qualifications, to the propensity of FTs to decide cases ex parte (in the absence of the proceedee), this ambiguity about what constitutes merit is significant.

It is noteworthy that often the proceedees (people against whom a reference has been made) fail to turn up for hearings due to several reasons including but not limited to-

• Late receipt or non-receipt of communication or summons to appear for the FT hearing
• Lack of understanding of summons due to illiteracy or limited education
• Lack of understanding of purpose of proceedings due to illiteracy or limited education
• Absence of resources to hire a lawyer
• Absence of resources to take time off work and attend hearings (in case of daily wage earners)
• Absence of resources to attend hearings in far flung locations
• Fear of being thrown into a detention camp

Furthermore, granting a quasi-judicial authority the power to regulate its own procedure for disposal of cases, gives them a virtual carte blanche to operate as they please! This is extremely dangerous as no authority should have unspecified or unlimited powers.

FTs reign supreme:
The inclusion of a new sub para 1B and strengthening it with provisions of new para 3B further seal the fate of proceedees, by placing their fate solely in the hands of FTs. The new sub para 1B that is to be inserted into the new Foreigners (Tribunals) Order 2019, says, “Any person referred to in paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 may prefer an appeal, on the terms and conditions specified therein, before the designated Tribunal constituted under this Order.”

The above-mentioned Paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 specifies the Power of District Registrar, Sub-district or Taluk Registrar or Local Registrar of Citizen Registration to obtain information stating,

“The District Registrar, Sub-district or Taluk Registrar or the Local Registrar of Citizen Registration may, by order, require any person to furnish any information within his knowledge in connection with the determination of Citizenship status of any person and the person required to furnish information shall be bound to comply with such requisition.”  

The new para 3B refers to Procedure for disposal of cases in case of persons referred in sub-para (1B) of paragraph 2 not preferring an appeal. It says:
“In case a person referred to in paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 does not prefer an appeal within the period of sixty days before the designated Tribunal constituted under this Order, the authority mentioned in sub-para (1) of paragraph 2 of this Order may refer to the Tribunal for its opinion the question whether the said person is a foreigner or not within the meaning of the Foreigners Act, 1946 (31 of 1946) in terms of sub-para (1) of paragraph 2 of this Order. On receipt of such a reference, the Tribunal shall examine the same as per the procedure laid down in paragraph 3A of this Order.”

What this means: No matter who makes the reference or demands clarification about the citizenship status of a person, and whether the said person appears before a tribunal or not, it is the FT and FT alone that takes the final decision in the case. This is again extremely dangerous for reasons mentioned above. Additionally, it appears that provisions under the Indian Citizenship Rules serve only to further empower the FTs.

The entire MHA gazette may be viewed here:

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