The Border police and Foreigners Tribunal came into existence in 1962 and 1964 respectively. On 23rd day of September 1964, The Foreigners (Tribunal) Order, 1964 was enacted by the central Government in exercise of the powers conferred by Section 3 of the Foreigners Act, 1946. Para 2 of the 1964 Order provides for the constitution of Foreigners` Tribunal. On May 30, 2019, the Central Government further amended the Foreigners (Tribunals) Order 1964 to create a new Foreigners (Tribunals) Amendment Order, 2019 that will come into effect with the publication of the Gazette. As per the Foreigners (Tribunal)Order,1964 as amended up-to-date, the Central Government or the State Government or the Union territory administration or the District Collector or the District Magistrate may by order, refer the question as to whether a person is a foreigner or not to a "Tribunal" constituted under the Foreigners (Tribunal)Order,1964 for its opinion.
A parallel process has been in place in Assam for decades – the border police, who investigate cases and refer them to the Foreigners' Tribunals, set up under the Illegal Migrants (Determination by Tribunals) Act, 1983. Although the Act is long gone, struck down by the Supreme Court as unconstitutional in 2005, the tribunals remain operational as quasi-judicial bodies that determine citizenship under the Foreigners' Act of 1946. If the Border Police finds anyone`s citizenship doubtful, they can refer the matter to Tribunal for inquiry.
The inquiry is split into two phases. In preliminary inquiry, the Border Police issues a Notice to the person, who is then asked to produce documents to prove his identity and birth within twenty days or on any date fixed by the Border Police. If citizenship is not established in the preliminary investigation, the Superintendent of Police (B) signs off an official enquiry. Then a case is registered against the person and three numbers of Forms are to be filled. This include particulars of the person under investigation- viz. Name, Date of Birth, Place of Origin, how long they have been living at their current address, Educational Qualifications, Ancestry and other details. The said investigation process does not make more than one or two months time.
There are 24 columns in the reference (3 nos. of Inquiry Report). But surprisingly, in the aforesaid Forms or Columns, there is no column for incorporating the signature of the referee`. The whole reference is cryptic. As such, thousands of cases are sent to Tribunals without information about the referee`s.
There are other ways in which people can end up before the Foreigners Tribunal. The Election Commission of India introduced the "D" voters in the State of Assam only. "D" stands for "doubtful" or "dubious". In 1997, the Election Commission placed the letter next to thousands of names in Assam's electoral lists. It implied that the citizenship of those individuals was suddenly under doubt and they would lose their voting rights until it was cleared. During revision of Electoral Rolls, Election Commission-appointed Local Verification Officer (LVO) can declare a person Doubtful. This report goes to the Electoral Registration Officer (ERO) who sends it to the S.P. (B) concerned who refers the matter to Foreigners Tribunal. The procedure and norms to declare a person as Doubtful or 'D` Voter is outlined in the Election Commission of India's instructions and order of the Gauhati High Court given below :-
In Sarbananda Sonowal(II) case, the Hon`ble Apex court opined that the Tribunal is not required to arrive at a prima facie satisfaction before initiating a proceeding against an individual under the Foreigners Act. So, the State is not required to adduce evidence first to prima facie satisfy the Tribunal relating to the existence of the grounds on which the reference is made. What the Apex Court has said in paragraph 60 is that the primary onus in relation to the existence of the grounds to the satisfaction of the Tribunal would be on the State, meaning thereby that the grounds on which a proceedee is suspected to be a foreigner must be reasonable and relevant to the issue of foreigner. For instance, if the ground, taken in a reference proceeding suspecting a person to be a foreigner, is that he wears a particular dress or is having a particular feature, such grounds cannot be said to be reasonable having any nexus to the issue of foreigner and hence the Tribunal naturally would not issue any notice on the basis of such grounds and reject the reference at the threshold. Hence, once reference is made by the competent authority and after satisfaction of the Foreigners` Tribunal a case has been registered against the proceedee. Thereafter, the Tribunal issues show-cause notice to the proceedee to whom the reference pertains, with a copy of the main grounds on which he or she is alleged to be a foreigner. This notice should be served as expeditiously as possible but not later than ten days of the receipt of the reference by the competent authority.
It is seen from various cases that no uniform procedure is adopted by the Tribunals in the matter of service of notice. Unless there is proper service of notice it cannot be said that the person against whom such notice is issued is treated fairly. There are instances where the Tribunal has accepted the service of notice only on the basis of the report of the process server, which in the reference proceeding is the police, that the proceedee is not found in his place of residence and hence the notices served by a substituted manner i.e. pasting a copy of the said notice on the place where the proceedee last resided and also in a conspicuous place, however, without any witness to such service. There are also instances where the Tribunal has accepted the service of notice on the basis of the report submitted by the process server that the proceedee refused to accept the notice, without getting the signature of any witness to such refusal.
Once a Notice is issued, the proceedee is bound to appear before the Tribunal. But if the proceedee failed to appear before the Tribunal, he or she will be declared foreigner by the Foreigners Tribunal ex-parte.
In Moslem Mandal Case, a full Bench of the Court delivered a crucial judgment and held that in an exparte proceeding before the Tribunal when the proceedee does not appear and does not adduce any evidence to discharge his initial burden, the Tribunal has no alternative but to opine the proceedee as foreigner, having regard to the ground on which reference has been initiated and notice having been issued. In an exparte proceeding, State is not required to adduce evidence as the burden lies on the proceedee to prove to the satisfaction of the Tribunal that he is not a foreigner as per section 9 of the Foreigners Act, 1946, which is in pari material to the provision of Section 106 of the Indian Evidence Act,1872.
In Moslem Mandal Case, it has been also observed that an ex parte order cannot be set aside by a Tribunal in a regular manner and it is necessary to prove on the part of the petitioner that he was prevented by sufficient cause while appearing before the proceeding.
Para 3C refers to Procedure for setting aside ex parte order. It says:
"The proceedee may file an application to the Foreigners Tribunal within 30 days from the date of ex parte order for set aside the ex parte Order and the Foreigners Tribunal may review its decision and decide the case on merits."
Now, if after receipt of the Notice, the proceedees appear personally or with his /her engaged Lawyer (if any), the Tribunal shall give him/her a reasonable opportunity to show-cause reply by filling a written statement. Ordinarily, not more than ten days` time from the date of service of the Notice should be given to file such written statement. So, the person concerned has to appear on the given date and submit his/her written statement to the Foreigners Tribunal, attaching photocopy of documents to show he or she is a genuine citizen of India. Following that, there is submission of evidence by way of Affidavit. Ordinarily, not more than ten days time should be given to produce such evidence and of the witnesses (if any) they produce as Defence Witness. It is also to be mentioned here that Tribunal also free to ask any question to the proceedee in line with Section 165 of the Indian Evidence Act, 1872.
Tribunal's opinion is to be given within a period of sixty days after receipt of the reference from the competent authority. The opinion by the Foreigners tribunal is a quasi-judicial order and not an administrative order. The expression "quasi-judicial order" means a verdict in writing which determines and decides contesting issues and question by a forum other than court. It is out of place to mention here that Section 3A(1) of the Foreigners Act,1946 provides that the Foreigners Tribunal shall have the power to regulate its own procedure for disposal of the cases expeditiously in a time bound manner. The issue relating to the Nationality of a person is required to be disposed of at the earliest. Otherwise, the very purpose of making the reference by the Superintendent of Police (Border) to the Foreigners Tribunal gets frustrated.
The NRC now being updated in Assam is only to include the names of those residents (or their descendants) who appear in the NRC, 1951, or in any of the Electoral Rolls up to the midnight of 24 March 1971 or in any one of the other admissible documents issued up to mid-night of 24 March 1971, which would prove their presence in Assam or in any part of India on or before 24 March 1971. The updation process of NRC started in the year 2013 under the strict monitoring and supervision of the Supreme Court of India. On the midnight of 31 December 2017, Part Draft NRC was released and subsequently on 30 July 2018, the Complete Draft of NRC was released. The National Register of Citizens (NRC) is the register containing names of Indian CITIZENS. The only time that a National Register of Citizens (NRC) was prepared was in 1951 when after conduct of the Census of 1951, the NRC was prepared by recording particulars of all the persons enumerated during that Census. Exclusion from the final NRC in Assam does not mean automatic declaration of anyone as foreigner and once the final document is published, if someone is dissatisfied, he or she can always go to a Foreigners Tribunal in the State to get justice under Paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. It says –
"Any person, not satisfied with the outcome of the decisions of the claims and objections may prefer Appeal, before the Tribunal within a period of sixty days from the date of such order, and on the disposal of appeal by the Tribunals the names shall be included or deleted".
Para 3A of the Foreigners (Tribunal) Order, 1964 as amended up-to-date refers to seventeen points details Procedure for disposal of NRC appeal. The para 3B of the Foreigners (Tribunal) Order, 1964 as amended up-to-date refers to Procedure for disposal of cases in case of persons not preferring an appeal. It says:
"In case a person who does not prefer an appeal within the period of sixty days before the designated Tribunal constituted under this Order, the Central Government or the State Government or the Union territory administration or the District Collector or the District Magistrate 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. On receipt of such a reference, the Tribunal shall examine the same as per the procedure laid down in paragraph 3A of this Foreigners (Tribunal) Order, 1964 as amended up-to-date".
A person aggrieved by the opinion/order of the Foreigners Tribunal can challenge before the High Court, wherein High Court would be entitled to examine the issue with reference to the evidence and material in the exercise of its power of judicial review premised on the principle of "error in the decision-making process". The scope of interference with the Tribunal's order, in exercise of the jurisdiction under Article 226 of Indian Constitution, however, is limited. The writ of certiorari can be issued for correcting errors of jurisdiction, as and when the inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it or if such Court or Tribunal acts illegally in exercise of its undoubted jurisdiction, or when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. The certiorari jurisdiction of the writ Court being supervisory and not appellate jurisdiction, the Court cannot review the findings of facts reached by the inferior Court or Tribunal .
Views are personal only.
Author is a practicing lawyer in various Courts in Assam