This article is written by Yash Sharma, a law student at Vivekananda Institute of Professional Studies, Indraprastha University, New Delhi. This article gives a detailed study on all the aspects related to the Foreigners Tribunals functioning in the state of Assam.
Table of Contents
Introduction
In India, Assam is protected by the Constitution of India by giving it a special status. Assam is given certain autonomy to preserve its culture and native tribes. Assam has experienced insurgencies ever since independence from various regions. That has posed a threat to their identity which is safeguarded by the Constitution itself. For that purpose, a series of Acts were enacted by the parliament. Lastly, Assam National Register of Citizens was framed to deport non-Assamese illegal migrants from Assam. To answer the question of the nationality of those not included in the list foreigners tribunal was set up in Assam.
This article talks about all the provisions that deal with the legal status of a person as an illegal migrant in Assam. Also, all those legal resources are what empowers the foreigner’s tribunals to adjudicate upon the matter of citizenship.
Who is an illegal migrant in India?
In India, the State does not recognize a foreigner as a refugee or an illegal migrant if they have migrated to India without a visa. There is no national legislature or statute in India that would define a refugee. There are many international conventions and treaties, countries signatories to which have to comply with those enactments. India has neither signed the United Nations Refugee Convention 1951, nor the convention’s 1967 protocol.
India has always accepted refugees and been accountable for the same. After facing many refugee crises in its neighbouring countries, India has always stood up and taken the responsibility to help them. What is more important is not only accepting such foreigners but also providing them with a normal livelihood. It gets harder when there is no domestic law to criticise the mechanism responsible for their maintenance.
Foreigners Act
In India, the Foreigners Act, 1946 provides for anyone who is a foreigner. Section 2 of the Foreigners Act, 1946 defines a foreigner as anyone who is not a citizen of India. Section 3 of the Foreigners Act, 1946 gives power to the Central Government to regulate the entry, exit or stay, of any foreigner. This power of the Central Government could be exercised concerning all foreigners, anyone foreigner in particular or any class of foreigner by regulating, prohibiting or restricting their stay in India. Under Section 3 of the Act, the Central Government issued The Foreigners (Tribunals) Order, 1964. The Order provides for the constitution of tribunals with the jurisdiction to rule upon cases of any individual whether he or she is a foreigner or not.
Immigrants (Expulsion from Assam) Act, 1950
After partition and communal riots, Assam is an immediate neighbour to East Pakistan and saw a refugee influx at large scale. A State report estimated the number of refugees between 1.5 lakh to 2 lakh which was finally estimated to be around 5 lakhs. After the end of the communal violence and constitution of Bangladesh from East Pakistan, illegal migration continued through porous borders and terrains. To counter this problem the Government of India enacted the Immigrants (Expulsion from Assam) Act, 1950. The Act made it mandatory to expel illegal migrants from Assam. For identification of illegal migrants, the first National Register of Citizenship was prepared in Assam during the creation of the 1951 census. It was prepared under the directives given by the Ministry of Home Affairs by collecting the particulars and credentials of every single recorded in that census. The only problem to this was logistic and implementation issues as at that time we had vast borders unmanned and unfenced, so if deported once they could enter again from some other way. In the 1961 Census, The Registrar General of Census recorded the number of illegal migrants to be 2,20,691.
Assam Accord
In Assam, there was a refugee influx ever since independence because of porous borders with neighbouring countries and states. Assam is given a special status in the constitution in the sixth Schedule under Article 371B. This special status was given to Assam by the forefathers of our nation as they recognized the need for the protection of their ethnicity. The special status of Assam and other states is a limitation to the Fundamental Rights given to the people in India. But ever since independence Assam has been facing the problem of illegal migrant influx from neighbouring states and countries because of the porous borders.
Assam witnessed its biggest influx in millions when citizens of Bangladesh erstwhile East-Pakistan fled to India in 1971. Due to this Assam experienced a mass movement against illegal migrants in Assam. The movement was led by the All Assam Students Union (AASU) and All Assam Gana Sangram Parishad (AAGSP). The protestors demanded to identify and expel the illegal migrants from the state, to safeguard and maintain their constitutional, administrative and legislative autonomy.
The Illegal Migrants (Determination by Tribunal) (IMDT) Act
The Illegal Migrants (Determination by Tribunal) Act, 1983 (IMDT Act) was enacted by the Indra Gandhi Government. It laid down the procedure for expelling illegal migrants from Assam. Its scope was limited to Assam only and in other states, the decision of nationality and expelling an illegal migrant was done via the Foreigners Act, 1946. Its main aim was as the title says to establish tribunals regarding the question of one’s nationality reasonably. As many foreigners who entered India or remained in India without proper documents or passports should be determined for the protection of the citizens of India. For that purpose, it was enacted to determine illegal migrants in Assam and the rest of the country.
Features
In the Foreigners Act, 1946, Section 9 states that if the nationality of a person could not be identified via the provisions and guidelines laid under Section 8 the onus to prove citizenship falls on such a person. Under the Illegal Migrants (Determination by Tribunals) Act the burden to prove one’s citizenship was shifted from the individual to the State, police and accuser of him being a non-citizen of India. This shift of burden was inconsistent with the Foreigners Act 1946. Under this Act, if a person is successfully accused of charges of being a non-citizen, he can prove his or his citizenship by simply producing a ration card. It did not apply to those entering India before 1971 and for those who entered post-1971 no strict procedure for deportation was mentioned.
Supreme Court’s View
The Act was challenged in the Supreme Court by Sarbananda Sonowal in 2005. A three-judge bench ruled that the Act itself is a barrier to identification and deportation of illegal migrants on those lines struck down the Act. Another reason is given by the Supreme Court that more than half of the IMDT Act cases are ruled in favour of the accused that gives them a not only easy way to reside in India but also official documents for citizenship.
In 2012, a PIL was filed seeking deportation of illegal migrants from Bangladesh and cancelling the vote of those 41 lakh doubtful voters from the list of 2006 election who are prima facie illegal, arbitrary and violative of the secular and democratic credentials of the State. The two-judge bench asked the Center to prepare for legal deportation of such illegal migrants.
Pilot Project 2010
This Pilot Project was the first attempt to record the credentials of people of Assam for the National Register of Citizens. The process of detecting, verifying and expelling illegal migrants suffered problems for a long time. This project was started as an attempt to systematically and legally detect the Illegal migrants to update the National Register of Citizens. The project started in two waves covering two different districts or tehsil. One in Kamrup district and another in Barpeta district in the state of Assam in the year 2010. The project was inevitably aborted due to huge law and security problems. An organised attack took place on the Office of the IAS Commissioner, the incident involved crossfire from the side of police as well that caused the death of 4 persons. After this attempt and the bitter result of this project, the possibility to record and update the National Register of Citizens List seemed to be an impossible task by the Government agencies.
Assam NRC
It is already mentioned earlier that the first National Register of Citizens (NRC) was made in 1951 containing names of Indian citizens. Current NRC will be prepared by recording credentials of all the persons who are descendants of those persons who were recorded in that census or any Electoral Rolls up to midnight of 24th March 1971 or in any one of the admissible documents issued up to midnight of 24th March 1971 as a proof of their presence in Assam before that day. The provisions that regulate and govern the maintenance and updating of the National Register of Citizens in Assam are The Citizenship Act, 1955, and The Citizenship (Registration of Citizens and Issue of National Identity cards) Rules, 2003.
Legacy data
Names that are recorded in 1951 NRC and any Electoral Rolls up to midnight of 24th March 1971 are recognised as Legacy Data. Importance of Legacy Data is that in this database there is a detail of a large number of people who are eligible to claim citizenship under Assam National Register of Citizenship. If a person can produce a proof of residence in Assam of his or her own or his or her parents or ancestor on or before 24th March 1971 they can get themselves registered in NRC. The probability of finding one’s name or some ancestor of his in this document is very high that’s why this is important and highly used.
Who will be included in NRC?
The National Register of Citizens shall be made updated 3 updates of the list. First, two requirements for inclusion in NRC will be assessed for the inclusion of a person, those are- 1) existence of a person’s name in the pre-1971 NRC or Electoral Rolls, 2) proving linkage to such person, shall be enough. Secondly, to get their name included in the list they have to apply family-wise for inclusion. Applications received by the Government shall be assessed and verified by them. Based on the results of the verified particulars the NRC shall be updated and those verified shall be added in the updated list. As a last resort to those not included, a draft National Register List shall be published after verifications of all the application forms and the non-verified applicants will be given a chance to submit claims, objections, corrections, etc before publishing the final list. Lastly, a time period will be provided to those whose applications were rejected after verification to file for an appeal. After all the claims and objections are dealt and decided upon, the final National Register of Citizens would be published.
Foreigners Tribunal
Foreigners Tribunal are set up by the Central Government while exercising their power given to them under the Foreigners Act, 1946. The Tribunals are set up by the Central Government under the Foreigners (Tribunal) Order, 1964. The Order is made under Section 3 of the Foreigners Act, 1946. The Judicial Officers at the Tribunal shall be persons having judicial experience as the Government may think eligible to appoint. The Tribunal has the power equal to that of a civil court functioning under the Code of Civil Procedure, 1908. The Tribunal shall have the power to order summoning of a person, requiring any document and examination of a witness by issuing commission.
The provision gives the Central Government power to come up with necessary measures and policies concerning any foreigners or class and their stay in India whether to be restricted or not. Under the same Section, the Central Government has the power to constitute such tribunals to decide the question of the nationality of a foreigner or citizen. Answering the question of the validity of the decision of such tribunals, the Supreme Court said that the decision of the Tribunals regarding the nationality of a person will be binding. Also, the decision of the tribunal will be given more importance than that of the Government or credentials and the NRC verification authority.
Supreme Court Verdict
In the verdict of Supreme Court on the validity of Tribunal’s decision a bench consisting of ex-Chief Justice of India (CJI) Ranjan Gogoi and SC Justice Deepak Gupta and Justice Sanjiv Khanna was constituted. All the judges unanimously in distinguished verdicts on the National Register of Citizens and Foreigners Tribunal have upheld its decision. They held that a quasi-judicial body will prevail over the Government’s decisions. The Supreme Court also made it clear that if a person’s name is not included in the list and he can produce required credentials then he can challenge the tribunal’s decision in the Supreme Court. The Supreme Court also made it clear that an appellate tribunal constitution is not possible under Article 142 of the Constitution of India to handle all the cases arising from the decisions of the tribunal.
Outcome
It was held by the Court that if the Foreigners Tribunal decides that the name of a person included in the NRC should be deleted on the grounds that he is a foreigner, such decision shall be valid and executed. Principle of ‘res-judicata’ shall be applied to the verdicts given by the Foreigners Tribunal. The principle says that a judicially decided issue can not be re-agitated. Therefore, if a person’s name is excluded from the list due to the order made by the Tribunal, that person cannot seek re-decision or right to appeal against such order of his name expulsion from the list.
Assam Foreigners Tribunals
Foreigners Tribunal were set up under the Foreigners (Tribunals) Order, 1964 made by the Central Government under Section 3 of Foreigners Act, 1964. An amendment was made in 2019 by the Central Government in the Foreigners (Tribunals) Act, 1964. The order was named as the Foreigners (Tribunals) Amendment Order, 2019. In this order the power to constitute a Foreigners Tribunal that existed with the Central Government under Section 3 of the Foreigners Act, 1946 was extended to State Governments. After the extension of tribunal setting up power now, the State Governments can also set up Tribunals.
Currently, there are 100 Foreigners Tribunal functioning in the state of Assam. Initially, 11 Illegal Migrants Determination Tribunals were set up under Illegal Migrants (Determination by Tribunals) Act, 1984. After the repealing of the IMDT Act, those tribunals also stopped functioning and were shut down. After that 21 new Foreigners Tribunals were established in 2005. After that in 2009, 4 new Foreigners Tribunal were established. In 2009, for the purpose of disposing of the remaining cases in Foreigners Tribunals 64 new Foreigners Tribunal were established. In all the Foreigners Tribunals that were constituted, various judges and advocates were appointed as the members of Foreigners Tribunal under the Foreigners Tribunal Act, 1941 and Foreigners Tribunal Order, 1964 and other guidelines issued by the Central Government from time to time.
Conclusion
Assam has a history of prolonged mass movements and violence for their demands of protection of their right to autonomy as guaranteed in the Constitution. These demands have been there ever since the independence of the Country. After partition, Assam faced an influx of refugees in high numbers. Due to unarmed porous borders with neighbouring countries, this illegal infiltration never ended. In 1971 after the civil war in Bangladesh erstwhile East-Pakistan started a new wave of illegal migrants faced by this state. Ever since the Students Union and other Political and terrorist outfits have fought for the protection of their ethnicity that is in danger due to infiltration in their lands. In 1983, the Assam Accord was signed that particularly demanded the expulsion of such illegal migrants. Ever since the Indian Legal framework has been amended many times to fulfil these demands and protect the rights of Assamese people as guaranteed in the Constitution.
The Foreigners Tribunals in Assam were formed under the Foreigners Tribunal order, 1964. Tribunals were constituted to answer the question of the nationality of any person who might not find his name in the National Register of Citizens. Complying with the principle of natural justice, the courts have been working ever since.
References
- https://currentaffairs.gktoday.in/tags/foreigners-tribunal-order-1964
- https://www.clearias.com/fundamental-rights-available-only-to-citizens-of-india/#:~:text=Fundamental%20rights%20available%20to%20both,and%20equal%20protection%20of%20laws.&text=Article%2021A%20%E2%80%93%20Right%20to%20elementary,and%20detention%20in%20certain%20cases.
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