(This is a guest post by Padmini Baruah)
The latter half of 2019 witnessed an uproar in India over a packet of legislation / executive policy consisting of the National Population Register [“NPR”], National Register of Citizens [“NRC”] and the Citizenship Amendment Act [“CAA”]. This NPR-NRC-CAA triumvirate sparked off a wave of protests against the violation of the foundational principles of secularism and equality as protected in the Indian Constitution. This was preceded by the release of the National Register of Citizens in Assam in August, 2019; an exercise designed to oust “illegal immigrants” which led to 1.9 million Indian citizens being excluded from its roster.
The fate of these people merits careful consideration; their status will be determined by Foreigners Tribunals [“FT”] in Assam. In this context, I examine the genesis of this notorious body, and how it has been operating as a quasi-criminal court over the past 5 decades.
The FT find their roots in the Foreigners Act, 1946. This Act defines a foreigner as a person who is not a citizen of India, and places the burden of proving that one is not a foreigner on the person themselves. Established through an executive order – the Foreigners Tribunal (Order) 1964 — the FT performs the task of filtering out whether or not one is a foreigner. Between 1985 till date, FTs have declared over 1,00,000 people as foreigners through processes that are arbitrary, and overstep the bounds of procedural fairness in multiple ways.
The FT Process
An FT process is initiated in two ways – through reference by the Assam Border Police and through the Election Commission of India’s identification of a person as a Doubtful Voter in the voting list.There are no guidelines determining how this reference is made — in my scrutiny of multiple Border Police references, I have seldom come across any grounds for suspicion. Procedural aberrations begin at this stage – to initiate proceedings, notice must be provided to the suspected foreigner, but, as an examination of High Court challenges to FT cases shows, in multiple instances, there is a failure to serve notices in a proper manner, meaning that many people are unaware that their citizenship is under scrutiny. Despite this clear breach of procedure, FTs forge ahead with ex parte proceedings, where people are declared foreigners without being provided the opportunity to present their case. Thus far, over 63,000 people have been declared foreigners in this manner.
It is pertinent to note that FTs are styled in the manner of civil court governed by the provisions of the CPC in terms of summoning and enforcing the attendance of any person, examining them under oath, discovery and production of documents, and the examination of witnesses. FTs have been given the flexibility of determining their own procedure; the Supreme Court has held that “…Tribunals generally regulate their own procedure applying the provisions of the Code of Civil Procedure only where it is required, and without being restricted by the strict rules of the Evidence Act”
However, it is seen that FTs apply provisions of the Indian Evidence Act, 1872 in an extraordinarily stringent and selective manner, effectively applying the same standard as a criminal trial. Public documents proving citizenship, such as voter lists, are to be certified before submission. Sections 61—65 of the Evidence Act are applied to private documents; thus, critical identifiers such as residence certificate issued by the village headman, nikahnama, Panchayat certificate proving lineage with the father are rendered inadmissible in the absence of testimony from the issuing authority.
Women face the brunt of this disproportionately, as the system bases itself on the notion of patrilineal descent. Despite there being proof of women’s names appearing in voter lists, in the absence of proven linkage with the father’s side of the family, they are declared as foreigners. Moreover, deposition by family members (who are citizens) attesting to their relationship with the person accused is often disregarded, in clear contradiction to the principles of Section 50 of the Evidence Act. FTs also rule against persons on the basis of minor discrepancies in documentation, such as spelling errors and contradictory dates, disregarding all other evidence. They are strongly incentivised to declare people as foreigners, which contributes to their disregard of documents and testimonies.
Finally, the repercussions of FT adjudications amount to criminal penalties. A person declared foreigner is stripped of citizenship, and rendered face to face with the prospect of detention as a prelude to deportation. Detainees fare worse than those convicted of crimes; in the absence of parole, access to work, healthcare or recreation, their existence is a testament to the “immcarceration” regime propagated by FTs. In the event that the person is not detained, they exist in limbo, with no citizenship, and therefore no access to any rights whatsoever.
The fact that a person is subject to such strict standards of evidence and procedure for a civil proceeding, failing which the consequences are so extraordinarily harsh is tantamount to a failure of the rule of law. Most people hauled up before the Foreigners Tribunals are from backgrounds where they can ill-afford proper legal representation. The FT regime leans towards making criminals out of those who are unable to prove their citizenship. This system reinforces the adoption of a crimmigration regime – the boundary lines between citizenship laws, procedures and practices and crime control strategies are increasingly blurring. The use of the law enforcement system in the form of the Assam Border Police to identify migrants, and the penalisation highlight the use of criminal law practices to regulate citizenship related offences. Procedural aspects have come to overlap for citizenship and criminal matters.
Through a combination of flawed procedure and arbitrary use of evidence law, they impose extraordinary consequences on those who are unable to navigate the complex tangle of bureaucracy and legal procedure. Given that most people who are brought before the FTs are from vulnerable socio-economic communities, the hurdles they face in the process are often insurmountable. FTs have made stateless criminals out of India’s own citizens without tangible proof of guilt. The system effectively ‘otherises’ and removes the offender from society, either through detention or deportation. This kind of societal removal is analogous to a criminal conviction, but without the presumption of innocence that the criminal justice system recognises and puts in place.