By: Samprathi Gowda
This blog post is the first in the forthcoming two-part series concerning the deficiencies in the functioning of the Foreigners Tribunals. In the first post, the author discusses the structural deficiencies in the working of the Tribunal and the evidentiary hiccups which are created as a result of shifting the burden of proof on the accused.
For years now, the acquisition of citizenship has been entangled in a web of documentation, bureaucratic hurdles, and prolonged legal procedures. Numerous political events led to the establishment of the Foreigners Tribunals (hereinafter ‘Tribunal’) in 1964. It drew powers from the Foreigners Act, 1946 and the Foreigners (Tribunal) Order, 1964. The tribunals are tasked with the duty to render opinions as to whether a person referred to it would be deemed a ‘foreigner’ as per the definition of the term under the Foreigners Act.
THE GENESIS OF THE HORNETS’ NEST
The introduction of the Illegal Migrants (Determination by Tribunal) Act in 1983 (hereinafter the ‘Act’) paved the way for a new detection mechanism to identify suspected illegal immigrants. Passed by the lawmakers when the anti-foreigner agitation in Assam approached its crescendo, the law aimed to expedite the detection and deportation of illegal immigrants. The law placed the burden of proving an accused as an illegal immigrant on the State and not the accused. In 2005, the Supreme Court in Sarbananda Sonowal v Union of India adjudicated on a petition by the current Chief Minister of Assam, Mr. Sarbananda Sonowal, and struck down the Act. Placing heavy reliance on a 1998 report by SK Sinha, the then Governor of Assam, the court reasoned that the procedures detailed in the Act provided many hurdles in detection of suspected foreigners (allegedly migrating into the country in large numbers) thereby defeating the very purpose for which it was enacted. The tribunals, now operating under the Foreigners Act, shifted the onus from the state and placed the burden of proof on the accused.
In 1997, the State’s Election Commission in the revision of electoral rolls began marking D-voters or doubtful voters. The Border Police, a special branch within the Assam police, are responsible for the detection of suspected foreigners in the state. They receive the cases of D-voters and conduct an inquiry into the said cases and make a reference to the Foreigners’ Tribunal if there exists any suspicion regarding their citizenship status.
The protection of citizenship, which is the most elemental of all rights, requires a system with efficient implementation and procedural safeguards. Any miscarriage of justice can result in immeasurable harm to the individual in the form of statelessness, disenfranchisement, loss of access to government facilities, confinement to detention camps, and the impending threat of deportation.
With such drastic consequences looming, the expectation on the judiciary, which is looked upon as the harbinger of rights, to intervene and rectify existing loopholes would be natural. Instead, the Supreme Court seems to just concern itself on speeding up the proceedings, and its constant docking of questions regarding the allegation of blatant violations of procedural laws and infringement of legal rights by the tribunal, paint a picture of a reluctant judiciary. A judiciary that is an eager abettor of the flawed process. Furthermore, rather than holding the Tribunals accountable for blatant disregard of due process, the Gauhati High Court has created multiple avenues for the Tribunal to speed up the prosecution and conviction rates of suspected foreigners.
A perusal of the tribunals brings out pressing questions about their independence. The entire process ranging from the appointment of the presiding members, the proceedings, or the evaluation of the performance of the said members is clearly crafted to favour the case of the State. The lawyers are prevented from cross-examining the testimony of the investigating officers. Cemented legal principles such as res judicata were not applicable to the functioning of these tribunals until the intervention of the Supreme court. This had led to a situation where the individuals could be declared as foreigners even after their citizenship was previously upheld by another tribunal.
Section 3(2) of The Foreigners (Tribunal) Order 1964 empowers the tribunals with the power to regulate its own procedure. This has created problems regarding the uniformity and transparency of the procedure adopted by the tribunals. Many proceedings are conducted behind closed doors and access of the same is barred to civil society groups and journalists. This goes against the provisions of procedural laws of both the Code of Civil Procedure (Part XI, Section 153B) and the Code of Criminal Procedure (Chapter XXIV, Section 327) which mandate a court to be open to the public unless exceptional circumstances demand otherwise.
The Supreme Court in Madras Bar Association v Union Of India held that “Tribunals should have as members, persons of rank, capacity and status as nearly as possible, equal to the rank, status and capacity of a court and should have the independence and security of tenure associated with Judicial Tribunals”.
The Tribunals function in a manner that leans towards being an extension of the executive machinery rather than an independent judicial structure. The control the government wields over these tribunals is a matter of dire concern. The district-level committees set up to scrutinise the functioning of the Tribunals consist of authorities who are empowered to look into both the requirement of whether decisions of the Tribunal need to be challenged before the Gauhati High Court and to determine if the contracts of the members of the Tribunal need to be renewed. This frustrates the independence of the tribunal members who are under extreme pressure to declare more individuals as illegal migrants.
The bar for selection criteria for members of the Foreigners Tribunal is lowered at every instance. Advocates and civil servants with no prior judicial experience are permitted to determine complicated legal issues pertaining to sacrosanct rights such as citizenship. The appointment having done under the supervision of the government narrows the gap between the executive and the judiciary. The said appointments having been made under a contractual basis, where the member declaring more persons to be a foreigner is rewarded with renewal and the work potential of others are deemed ‘unsatisfactory’ and their contracts terminated.
As stated earlier, the burden of proof under the Foreigners Act vests on the person accused. Failure on his/her part to appear before the Tribunal, will result in him being declared a foreigner without the state having to prove its case. The High Court has adjudicated in favour of the Tribunal in a majority of the appeals arising from ex-parte orders where the accused was held to be a foreigner. Claims of the accused not being served a notice by the authorities to appear before the Tribunal, have gone unheard. The furnishing of some form of documentation by the accused during the appeal had a limited effect on what was otherwise a foregone conclusion.
The standard of proof demanded by the Tribunal requires that documents produced must be certified by the issuing authority who should further testify the contents of the same in person. Women bear the brunt of such a rigorous implementation of the evidence act. Firstly, they lack requisite documentation such as birth certificates or a family tree linking them to their parents. Secondly, if the woman is able to produce such a document, the gram panchayat secretary needs to testify the same in person. This proves to be a major hurdle as gram panchayat secretaries change over time or are unable to appear in front of Tribunal due to logistical concerns such as cost and distance. This process renders the verdict of the Supreme Court in Rupajan Begum v Union of India (where the court accepted a certificate from the gram panchayat secretary proving descent from a person who entered India before March 24, 1971, as sufficient proof) ineffective. Owing to the failure of the certifying authority to testify the authenticity of the documents before the Tribunals, one in two people are declared foreigners. What is even more alarming is the insouciant attitude of the Tribunal when it comes to commanding the presence of the witness required for the fair adjudication of citizenship claims.
Delayed and Denied
It takes roughly 6-7 years for a case to reach the final stage of adjudication under the High Court. This renders the future of the accused, who might end up spending most of this time incarcerated, uncertain. Lack of infrastructure, low manpower place severe constraints on the day to day functioning of the Tribunals. There also exists an exorbitant delay in the timely payment of salaries to the presiding members of the Tribunals. Further, many tribunals are yet to appoint a government pleader to represent the case of the state. The concept of legal-aid is yet to percolate to the proceedings of the Tribunal. Many individuals, lacking the sufficient capital to hire an advocate to argue their case, end up representing themselves with the help of what little documentation they have. The Tribunal has failed, in many instances, to appoint a legal representative for the accused.
(Samprathi is a graduate from Dr. Ram Manohar Lohiya National Law University, Lucknow. He may be contacted at firstname.lastname@example.org.)
Cite as: Samprathi Gowda, In Pursuit of Exclusion: Foreigners Tribunals: Part I (Structural Deficiencies) (The RMLNLU Law Review Blog, 02 July 2020) <https://rmlnlulawreview.wordpress.com/2020/07/02/in-pursuit-of-exclusion-foreigners-tribunals-part-i-structural-deficiencies> date of access.