Insights into Editorial: Inhumane, and utterly undemocratic

insightsonindia.com/2019/06/14/insights-into-editorial-inhumane-and-utterly-undemocratic

June 14,
2019

Insights into Editorial: Inhumane, and utterly undemocratic

Context:

In Assam, Mohammad Sanaullah, who served for three decades in the Indian Army had
been detained, after a Foreigners Tribunal had declared him an illegal immigrant.

The Gauhati High Court’s bail order came after a week of sustained public pressure,
occasioned by the revelation that Mr. Sanaullah had served for three decades in the Indian
Army.

Upon the orders of the Gauhati High Court, Mohammad Sanaullah was released on bail
from a detention camp in Assam.

The investigating officer himself admitted that it might have been an “administrative mix-
up”.
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Yet, it was on the basis of such shoddy material that the Foreigners Tribunal, a quasi-
judicial body expected to follow the rule of law.

What is a Foreigners tribunal?

Foreigners’ tribunals were set up under the Illegal Migrants (Determination by Tribunals)
Act, 1983, which was struck down as unconstitutional by the Supreme Court in 2005.

These quasi-judicial bodies determine the citizenship of Indian residents under the
Foreigners’ Act, 1946. The system requires border police to investigate cases and refer
them to the tribunals.

Once a ‘foreigner’ has been apprehended by the police for staying illegally, he or she is
produced before a local court under the Passport Act, 1920, or the Foreigners Act, 1946,
with the punishment ranging three months to eight years in jail.

Once the accused have served the sentence, the court orders their deportation, and they
are moved to detention centres till the country of origin accepts them.

Powers of Foreigners Tribunal’s:

Supreme Court held that a Foreigners Tribunal’s order declaring a person as an illegal
foreigner will be binding and will prevail over Govt. decision to include or exclude name
from the National Register of Citizens in Assam.

Eligibility Criteria: Advocates not below the age of 35 years of age with at least 7 years of
practice (or) Retired Judicial Officers from the Assam Judicial Service (or) Retired IAS of ACS
Officers (not below the rank of Secretary/Addl. Secretary) having experience in quasi-
judicial works.

Tribunal’s order is quasi-judicial one and will prevail. The Registrar General of India (RGI)
published the final draft list of NRC on July 30 2018. The publication of the final NRC is on
July 31, 2019.

Amendment the Foreigners (Tribunals) Order, 1964:

The Ministry of Home Affairs (MHA) has amended the Foreigners (Tribunals) Order, 1964,
and has empowered district magistrates in all States and Union Territories to set up
tribunals (quasi-judicial bodies) to decide whether a person staying illegally in India is a
foreigner or not.

Earlier, the powers to constitute tribunals were vested only with the Centre.

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The amended order (Foreigners (Tribunal) Order, 2019) also empowers individuals to
approach the Tribunals. Earlier, only the State administration could move the Tribunal
against a suspect.

The amendment has come in the backdrop of Assam’s final National Register of Citizens
(NRC) which is set to be published by 31st July, 2019.

If a person doesn’t find his or her name in the final NRC, s/he could move the Tribunal.

The amended order also allows District Magistrates to refer individuals who haven’t filed
claims against their exclusion from NRC to Tribunals to decide if they are foreigners or
not.

As per directions of the Supreme Court, the Registrar General of India – RGI (under the
Ministry of Home Affairs) published the final draft list of NRC on 30th July, 2018 to
segregate Indian citizens living in Assam from those who had illegally entered the State from
Bangladesh after March 25, 1971.

Nearly 40 lakh people were excluded from this final draft list. As many as 36 lakhs of those
excluded have filed claims against the exclusion.

The NRC is a fallout of the Assam Accord, 1985. The accord states that all illegal foreigners
who came to Assam after 1971 from Bangladesh, irrespective of the religion, have to be
deported.

Conclusion:

Investigative journalists have revealed over the last few years that ‘administrative
errors’ of this kind are the rule rather than the exception.

As Mr. Sanaullah acknowledged after being released, there were people in the detention
camps with similar stories, who had been there for 10 years or more.

For these individuals, without the benefit of media scrutiny, there may be no bail, only an
endless detention.

But by forcing the conversation onto the national stage, Mr. Sanuallah’s case has provided
hope that we may yet recognise the unfolding citizenship tragedy in Assam for what it is,
and step back from the brink while there is still time.

Way Forward:

The SC bench asked the Centre to take all possible measures to fence the borders and
complete the exercise of setting up more foreigners tribunals to identify and order the
deportation of illegal migrants.
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It has been a battle between citizens and non-citizens and that’s how the people of Assam
expect the rest of the world to see it.

It can prompt some urgent national introspection about a situation where, in the State of
Assam, thousands of people languish in detention camps for years, victims of a process
that, to use an old adage, would not be sufficient to “hang a dog on”.

If anything can trigger an urgent and imperative call for change, surely this will and must.

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