Supreme Court Issues Notice On Plea Challenging Assam Govt Decision To Discharge Members Of 200 Foreigners Tribunals

Senior Advocate Gopal Sankaranarayanan, on behalf of the petitioners, submitted before a Bench of Chief Justice D.Y. Chandrachud and Justice Hima Kohli, "After the appointment, at a point, there were 180 left to be deputed because the government took its own sweet time in setting up the tribunals – infrastructure, staffing, and everything else that is required. They were not able to finish that in time. So, suddenly by way of this impugned order passed last month, the government has, for some reason, without having ever adverted to the NRC before, decided to link their service with the NRC. How could their services be forfeited, when this court had instructed the government to populate the ranks of the Foreigners Tribunal and they took up this job under the protection of this court?"

The petitioners, discharged members of the additional Foreigners Tribunals, have assailed this government order as arbitrary and discriminatory and violative of the fundamental rights enshrined in Articles 14 and 16. Although the new members were to "deal with cases of foreigners, who have illegally come from Bangladesh or are illegally residing in Assam", the state government allegedly misclassified their service by "linking it with the NRC", Sankaranarayanan argued before the apex court. The petitioners have claimed that the government purposefully "misinterpreted" the objective of their appointment as limited to "deciding NRC-related issues", in order to direct the discontinuation of their services on the ground that the final citizenship register has not yet been drawn up. This move ran counter to the top court's instructions to make the additional tribunals functional, Sankaranarayanan contended.

"I want to draw this distinction. If the NRC cases are taken up and they pass rejection orders, they will come to the Tribunal. But the tribunals which exist are dealing with everything under the Foreigner's Act, 1946," the senior counsel explained. He added, "The petitioners were already on duty deciding the foreigners reference cases. When the petitioners were discharged, there were more than one lakh such cases pending in Assam."

"As such, there were no special tasks or different assignments, given by this Court for the newly appointed members and they were to perform the same work as that of the existing members, i.e., to decide the issue relating to foreigners in Assam," the Court has been informed. It has also been claimed that there was "not even a single whisper" to suggest that "the appointments would be made only to decide NRC-related issues and the appointees would be treated as a separate class". The petitioners have pointed out that other members of the existing tribunals were not touched by the order. "Further out of the 221 Members, 23 Members were kept in service, and they are allowed to take other reference cases which is absolutely discriminatory in nature and is in complete violation to the principle of equality," the petitioners have alleged.

After the senior counsel took the court through the impugned notification, Justice Kohli clarified, "So, the petitioners were temporarily attached to the Foreigners Tribunal, and your appointment was for a period of one year." The Chief Justice supplemented, "So, in that sense, they were temporary, contractual appointments. You have no real vested right."

Sankaranarayanan responded, "Temporary attachment in this case means being attached to that Foreigners Tribunal in which they were assigned temporarily. Plus, it is not like the government does not have enough cases. They have upward of one lakh cases pending right now."

The petition has been filed through Kaushik Choudhury AOR.

Case Title

Pranab Borah & Ors. v. Union of India & Ors. [WP (C) No. 978/2022]