Foreigners Tribunals

 

In news:

• Recently, the Ministry of Home Affairs has sanctioned around 1,000 Tribunals to be set up in Assam in the wake of publication of the final NRC.

 

Important facts:

• As per directions of the Supreme Court, the Registrar General of India (RGI) published the final draft list of NRC on July 30 last year to segregate Indian citizens living in Assam from those who had illegally entered the State from Bangladesh after March 25, 1971.
• Nearly 40 lakh people were excluded from Assam’s final draft published last year. The NRC is a fallout of the Assam Accord, 1985. 

• Foreigners’ Tribunals, set up to adjudicate citizenship disputes in Assam, need strict judicial supervision, must be freed from government control.
• The Indian Constitution was amended in 1976 to insert the provision about tribunals: It talks of administrative and other specialised tribunals. However, the Constitution doesn’t mention any tribunal to pronounce on the citizenship of people.

 

What is Foreigners Tribunal?

• With Assam’s NRC as the backdrop, the Ministry of Home Affairs (MHA) has laid out specific guidelines to detect, detain and deport foreign nationals staying illegally across the country.
• The MHA has amended the Foreigners (Tribunals) Order, 1964, and has empowered district magistrates in all States and UTs to set up tribunals to decide whether a person staying illegally in India is a foreigner or not.
• Earlier, such powers to constitute tribunals vested with the Centre only.
• By 1979, there were 10 such tribunals, which rose to 64 in 2015.
• Presently, there are around 100, with another 200 being established now.
• They were given the power to devise their own procedures, and thus the inconsistency in the workings of these tribunals.
• Initially, they were supposed to have retired senior judicial officers of district judge or additional district judge rank.
•  Now, even civil servants and lawyers with just seven years’ experience are appointed as FT members.  In terms of training, they have to undergo just two days’ orientation course.
• The services of members, whose record in declaring foreigners is poor, are dispensed with.
• There is no security of tenure for them. Initially they used to be appointed for two years, this has now been reduced to one year.
• The genesis of denial of due process by these FTs really lies in the SC’s controversial decision in Sonowal (2005) that struck down as unconstitutional The Illegal Migrants (Determination by Tribunals) Act (IMDT), 1983, by invoking Article 355 that imposes a duty on the Centre to protect the states from external aggression.
• Section 9 of Foreigners’ Act has put the burden of proof on the alleged foreigner. 
• As per  judgment of the SC, the heavy burden of proving citizenship is now on the citizens — they have to prove it on the basis of pre-1971 legacy and linkage documents.
•  The law completely ignores the illiterate and destitute’s daily struggle for livelihood — they cannot possibly be meticulously keeping documents, particularly when most of them have had their homes ravaged by floods five to seven times on an average.
• Recently, The Ministry of Home Affairs (MHA) has amended the Foreigners (Tribunals) Order, 1964, and has empowered district magistrates in all States and Union Territories to set up tribunals (quasi-judicial bodies) to decide whether a person staying illegally in India is a foreigner or not.
• Earlier, the powers to constitute tribunals were vested only with the Centre.
• The amended order (Foreigners (Tribunal) Order, 2019) also empowers individuals to approach the Tribunals. Earlier, only the State administration could move the Tribunal against a suspect.
• The amendment has come in the backdrop of Assam’s final National Register of Citizens(NRC).

 

Who is a foreigner?

• Under Section 2 (a) of the Act, a foreigner is a person who is not a citizen.
• Thus it will be applicable only to persons against whom there is strong evidence of being a foreigner — in the sense that s/he was caught while entering India or was in possession of a passport of another country.
• Around three lakh people in Assam who were declared Doubtful Voters in 1997 , have been excluded from the NRC now have to face the FTs.
• Till March 2019, as many as 1.17 lakh people had been declared foreigners, of which 63,959 were declared as such ex-parte.
• Since a nationwide NRC is now on the cards, let these FTs be brought under the strict supervision of concerned high courts and freed from governmental control.

 

Why need such tribunals?

• The foreigners tribunals are quasi-judicial bodies, unique to Assam, to determine if a person staying illegally is a “foreigner” or not.
• In other parts, once a ‘foreigner’ has been apprehended by the police for staying illegally, he or she is produced before the local court under the Passport Act, 1920, or the Foreigners Act, 1946.
• The punishment ranges from imprisonment of three months to eight years.
• Once the accused have completed the sentence, the court orders their deportation, and they are moved to detention centres till the country of origin accepts them.

 

The amendment

• The 1964 order on Constitution of Tribunals said: “The Central Government may by order, refer the question as to whether a person is not a foreigner within meaning of the Foreigners Act, 1946 to a Tribunal to be constituted for the purpose.
• The amended order issued says – “for words Central Government may,’ the words ‘the Central Government or the State Government or the UT administration or the District Collector or the District Magistrate may’ shall be substituted.”

 

Impact of the Amendment

• The amended Foreigners (Tribunal) Order, 2019 also empowers individuals to approach the Tribunals.
• Earlier only the State administration could move the Tribunal against a suspect, but with the final NRC about to be published and to give adequate opportunity to those not included, this has been done.
• If a person doesn’t find his or her name in the final list, they could move the Tribunal.
• The amended order also allows District Magistrates to refer individuals who haven’t filed claims against their exclusion from NRC to the Tribunals to decide if they are foreigners or not.
• Opportunity will also be given to those who haven’t filed claims by referring their cases to the Tribunals.
• Fresh summons will be issued to them to prove their citizenship.

 

About National Register of Citizens (NRC)

• The NRC was last updated in Assam in 1951.
•  Existence of name in the legacy data: The NRC will be now updated to include the names of those persons (or their descendants) who appear in the NRC, 1951, or in any of the Electoral Rolls up to the midnight of 24th March, 1971 or in any one of the other admissible documents issued up to midnight of 24th March, 1971, which would prove their presence in Assam or in any part of India on or before 24th March, 1971. 
• All the names appearing in the NRC, 1951, or any of the Electoral Rolls up to the midnight of 24th March 1971 together are called Legacy Data. Thus, there will be two requirements for inclusion in updated NRC – 

1. Existence of a person’s name in the pre-1971 period &
2. Proving linkage with that person. 

 

• A PIL was filed in the Supreme Court seeking the removal of "illegal voters" from the electoral rolls of Assam and the preparation of the NRC as required under the Citizenship Act, 1955.
• Identification and deportation of illegal immigrants was launched by the All Assam Students “Union (AASU) in 1979.
• It culminated with the signing of the Assam Accord on Aug 15, 1985.

• The register, first published in Assam in 1951, is being updated as per the directions of the Supreme Court.
• It is a list to segregate Indian citizens living in Assam from those who had illegally entered the State from Bangladesh after March 25, 1971.

Assam Accord: Under this accord, those who entered the state between 1966 and 1971 would be deleted from the electoral rolls and lose their voting rights for 10 years, after which their names would be restored to the rolls. Those who entered on or after March 25, 1971, the eve of the Bangladesh War, would be declared foreigners and deported. The National Register of Citizens now takes its definition of illegal immigrants from the Assam Accord – anyone who cannot prove that they or their ancestors entered the country before the midnight of March 24, 1971, would be declared a foreigner and face deportation.

 

 

How did NRC verification begin in Assam?

• The process of NRC update was taken up in Assam as per a Supreme Court order in 2013.
• In order to wean out cases of illegal migration from Bangladesh and other adjoining areas, NRC updation was carried out under The Citizenship Act, 1955, and according to rules framed in the Assam Accord.

 

Why is the NRC being updated now?

• The mechanism for detecting so-called foreigners had previously been delineated by the Illegal Migrants (Determination by Tribunals) Act of 1983
• This was struck down by the Supreme Court in 2005, on a petition which argued that the provisions of the law were so stringent; they made the “detection and deportation of illegal migrants almost impossible”. 
• In 2013, the Supreme Court asked the Centre to finalise the modalities to update the new National Register of Citizens. The project was launched in earnest from 2015, monitored directly by the Supreme Court.

 

Who is a D-voter or a Declared Foreigner?

• D-Voter is a category introduced in Assam in 1997 to mark people unable to prove their citizenship during verification.
• A Declared Foreigner is one identified as such by one of the 100 Foreigners Tribunals (FTs), which are quasi-judicial bodies that opine whether or not a person is a foreigner within the meaning of the Foreigners Act, 1946.
• Under Section 6A of the Citizenship Act, 1955, people who entered Assam between January 1, 1966 and March 25, 1971 need to register with an FRRO.
•  They would have all rights of a citizen except the right to vote, which would be granted after 10 years.
• In the NRC note, those who entered Assam within this 1966-71 window but did not register themselves, too, are liable to be excluded.

 

About Foreigners (Tribunal) Order, 1964:

• The order was passed by Government of India (GoI) under section 3 of foreigners Act, 1946.
• The GoI can constitute foreigners tribunals whenever required to look into question of whether a person is or not a foreigner within the meaning of Foreigners Tribunals act, 1946.
•  The Foreigners tribunal shall consist of persons having judicial experience as government may think fit to appoint.
• It has powers of a civil court while trying a suit under code of civil procedure, 1908.
•  It includes summoning any person, requiring any document and issuing commissions for examination of any witness.

 

IMDT Act

• The Illegal Migrants (Determination by Tribunal) Act was an Act of the Parliament of India enacted in 1983 by the Indira Gandhi government.
•  It was struck down by the Supreme Court of India in 2005 in Sarbananda Sonowal v. Union of India known as the IMDT Act.
• Assam also had Illegal Migrants Determination Tribunal which was established in 1985 under the Illegal Migrants (Determination by Tribunal) (IMDT) Act, 1983. This tribunal only considered the cases of those who had allegedly entered India after March 25, 1971.
• IMDT Act was enacted to put forward the procedures to detect illegal immigrants (from Bangladesh) and expel them from Assam.

 

 

Tribunal in India   What are Tribunals? ‘Tribunal’ is an administrative body established for the purpose of discharging quasi-judicial duties.  An Administrative Tribunal is neither a Court nor an executive body rather a midway between the two.   Tribunals function as an effective mechanism to ameliorate the burden of the judiciary.  The Tribunal has to observe the principles of natural  justice or act in accordance with the statutory provisions under which the Tribunal is established. On recommendation of Swaran Singh Committee, the 42nd Amendment Act of 1976 provided for the insertion of Articles 323-A and 323-B in the Constitution.  Article 323A deals with administrative tribunals. Article 323B deals with tribunals for other matters. The Administrative Tribunals Act, 1985- An Act to provide for the adjudication by Administrative Tribunals of disputes with respect to recruitment and conditions of service of persons appointed to public services.   Administrative Tribunals: An administrative Tribunal is a multimember body to hear on cases filed by the staff members alleging non-observation of their terms of service or any other related matters and to pass judgments on those cases.   Advantages of Tribunals: Administrative adjudication has brought about flexibility and adaptability in the judicial as they are not restrained by rigid rules of procedure and can remain in tune with the varying phases of social and economic life. They are set up to be less formal, less expensive, and a faster way to resolve disputes than by using the traditional court system. The system also gives the much-needed relief to ordinary courts of law, which are already overburdened with numerous suits.   Disadvantages with Tribunals: Tribunals have largely replaced high courts for disputes under the various Acts. An aggrieved, by an order of an appellate tribunal, can directly appeal to the SC, side-stepping the HC. This has raised certain institutional concerns.  Though the disposal rate of the Tribunals in comparison to the filing of cases per year had been remarkable i.e., at the rate of 94%, the pendency remains high.  Tribunals many a times have proved inefficient in delivering quick justice which was one of the reasons for their establishment.  Increasing number of tribunals has affected the whole structure of separation of power because it is seen as an encroachment of judicial branch by the government. Tribunal is not a court of law and is controlled and manned partly by the Executive which is against the principle of separation of powers and allows the Executive to perform adjudication functions. Tribunals have largely replaced high courts for disputes under the various Acts. An aggrieved, by an order of an appellate tribunal, can directly appeal to the SC, sidestepping the HC. Average pendency across tribunals is 3.8 years with 25% increase in the size of unresolved cases while pendency in high courts is 4.3 years. Tribunals have proved inefficient in delivering quick justice which was one of the reasons for their establishment. Various tribunals are functioning under various ministries and departments creating a sort of confusion with respect to the management of the tribunals. Huge vacancies in dozens of tribunals have defeated the very purpose for which these specialized quasijudicial forums were created.

 

Source)

https://indianexpress.com/article/opinion/columns/supreme-court-foreigners-tribunals-assam-nrc-6058158/

https://www.thehindu.com/news/national/all-states-can-now-constitute-foreigners-tribunals/article27706366.ece