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Assam’s Foreigner’s Tribunals
Context:
The Assam government, keeping with the Citizenship (Amendment) Act of 2019, asked the Border wing of the State’s police not to forward cases of non-Muslims who entered India illegally before 2014 to the Foreigners Tribunals (FTs).
About Foreign tribunals(FT’s):
- The FTs are quasi-judicial bodies formed through the Foreigners (Tribunals) Order of 1964 under Section 3 of the Foreigners’ Act of 1946 to let local authorities in a State refer a person suspected to be a foreigner to tribunals.
About Foreign tribunals in Assam vs Other states
- The Foreigners (Tribunals) Order, 1964 is applicable to the whole of India, but as of right now, only Assam has a Foreigners Tribunal.
- In other states, if an illegal immigrant is found, he is brought before a local court and dealt with in accordance with the Foreigners Act, of 1946.
- Each FT is headed by a member drawn from judges, advocates, and civil servants with judicial experience.
- Assam’s Home and Political Department says that only 100 FTs are currently functioning.
- The Foreigners (Tribunals) Order, 1964 has been amended by the MHA, giving district magistrates in all States and UTs the authority to establish tribunals to determine whether a person residing in India unlawfully classifies as a foreigner or not.
- Earlier, such powers to constitute a tribunal vested with the Centre only .
Functioning:
- Powers of a civil court in certain matters such as summoning and enforcing the attendance
- A tribunal is required to serve a notice in English or the official language of the State to a person alleged to be a foreigner within 10 days of receiving the reference from the authority concerned.
- Such a person has 10 days to reply to the notice and another 10 days to produce evidence in support of his or her case.
- FT has to dispose of a case within 60 days of reference.
- If the person fails to provide any proof of citizenship, the FT can send him or her to a detention centre, now called transit camp, for deportation later.
- The appeal against FT’s verdict lies with the High Court and Supreme Court.
Role of Border Police Organisation
- The Assam Police Border Organisation was established as a part of the State police’s Special Branch in 1962 .
- The Assam Police Border Organisation is responsible for detecting illegal foreigners and referring suspicious cases to FTs.
- They patrol the India-Bangladesh border, work with the Border Security Force, and maintain a second line of defence.
- They refer cases of ‘D’ (doubtful) voters to FTs as directed by the Election Commission of India.
Issue with Foreign Tribunals:
- Burden of proof:Section 9 of The Foreigners Act, 1946, puts the burden of proof on the person who is alleged to be a foreigner which is very difficult to prove in most cases .
- Miscarriages of justice: The Supreme Court has overturned FT orders citing grave miscarriages of justice, such as the wrongful declaration of a deceased farmer, Rahim Ali, as a foreigner.
Way Forward:
- To avoid arbitrary discretion of the SC in Mukesh Singh vs State (2020), the court said that even in cases of a reverse burden of proof, the initial burden, which exists on the prosecution, must be satisfied.
- Again in Noor Aga vs State of Punjab (2008), SC emphasised that some basic facts must first be proved by the prosecution even in cases of reverse burden of proof.
