On November 21, a division bench of the Gauhati Excessive Court docket stated {that a} man named Forhad Ali had been declared a foreigner by the Bongaigaon Foreigners Tribunal in October 2019 based mostly on an inconsistent studying of the proof offered earlier than it.
Because the bench responded to Ali’s plea to assessment the Bongaigaon Tribunal’s determination, it additionally delivered a scathing indictment of the Foreigners Tribunal regime – particularly its seemingly advert hoc methodology of functioning.
Foreigners tribunals are quasi-judicial our bodies established by the federal government to determine “unlawful immigrants” from Bangladesh, previously East Pakistan. An individual decided to be a foreigner by considered one of these tribunals could be detained and deported.
These tribunals perform like civil courts, with the facility to summon witnesses and demand paperwork. As a constitutional courtroom, the Gauhati Excessive Court docket’s criticism of the foreigners tribunal is critical. It vindicates the contentions of advocates, activists, journalists and students who’ve lengthy been calling consideration to the arbitrariness inherent in Assam’s foreigners tribunal regime, which has stripped not less than 1.43 lakh folks of their Indian citizenship to date.
However then, the Excessive Court docket order took a wierd flip. Taking an inexplicable leap of logic, it ended up issuing a directive with the potential to create much more fickleness in Assam’s citizenship willpower regime.
Indictment of Foreigners Tribunals
The bench meticulously scrutinised 11 items of proof that Ali had offered earlier than the tribunal in Abhayapuri to conclude that there was nothing to counsel that he’s a foreigner. The Excessive Court docket stated that the tribunal had callously dismissed the evidentiary worth of the paperwork similar to voter lists that Ali had furnished to show his citizenship.
When a “suspected unlawful” is referred to one of many tribunals, they should conclusively set up their familial antecedents in Assam by way of onerous documentary proof to show that they have been born within the state and should not interlopers from Bangladesh or East Pakistan.
On the coronary heart of the tribunal’s antagonistic opinion on Ali’s citizenship was a discrepancy within the spelling of his father’s title. The tribunal had concluded that Ali couldn’t be an Indian citizen as a result of his father’s title was spelt as “Habi Rahman” on one voter checklist and “Habibar Rahman” on one other.
The Excessive Court docket rejected this argument, noting that there was nothing to point that Habi and Habibar are completely different people. Citing a 2019 Supreme Court docket order within the case of Sirajul Hoque vs State of Assam and Others, the Excessive Court docket noticed that “minor variation within the spellings of the title is to not be made a foundation to conclude that the 2 individuals could also be completely different individuals”. Equally, the bench famous that the tribunal had used an inappropriate arithmetic calculation on the age of Ali’s father to reject the voter lists that he furnished.
It additionally criticised the tribunal for rejecting a jamabandi, or land file, that Ali had offered to ascertain a hyperlink between himself and his father. Observing that the jamabandi is a “pc generated certificates, duly sealed and signed by the individual occupying a accountable official place”, the Excessive Court docket famous that the tribunal had ignored the evidentiary worth of the doc beneath the Indian Proof Act, 1872.
The bench despatched the case again to the tribunal in Abhayapuri and urged it to move a “reasoned order”. It then made a broader systemic remark: that in “many instances”, the foreigners tribunals declare people as foreigners with out “stating the explanation”. In a robust indictment of the tribunals, Justices Achintya Malla Bujor Barua and Mitali Thakuria argued that in such instances, they “had not discharged the jurisdiction vested upon it beneath the legislation”.
The bench’s criticism of the operational observe of the Foreigners Tribunals was clear-eyed and conscientious. What adopted, although, was absurd.
Leap of logic
The bench expressed an curiosity in figuring out what guidelines the foreigners Tribunals have been following to strip folks of their citizenship. The Excessive Court docket bench proceeded pulled up a statistic furnished by the Assam authorities’s dwelling division that “in about 85% of the referred instances, the proceedees have been declared [by the tribunals] to be residents”.
Primarily based on this data and extrapolating on arbitrariness displayed by the Abhayapuri tribunal in Ali’s case, the bench concluded that “there’s a good risk” that the tribunals had “wrongly declared” many “foreigners or unlawful migrants” as Indian residents. The bench stated it arrived at this conclusion after perusing a “good variety of judgements on a random pattern foundation” that the state authorities had furnished on its request.
The Excessive Court docket directed the house secretary of the Assam authorities to conduct a departmental assessment of all instances through which the foreigners tribunals had judged folks to be Indian residents. It additionally referred to as upon the state authorities to “take applicable measures as could also be accessible beneath the legislation” if any discrepancies are discovered within the orders of the tribunals.
4 units of pressing questions emerge from this request.
One, does the Assam authorities – an government authority – have the authorized energy to assessment the orders of foreigners tribunals, which, based on the Supreme Court docket, are “quasi-judicial” our bodies and whose determinations have “civil penalties”?
What does the courtroom actually imply when it asks the federal government to “take applicable measures as could also be accessible beneath the legislation”? Does the state authorities’s dwelling division even have the authorized experience to assessment the advanced evidentiary swimming pools that type the idea for the choices of the tribunals? Shouldn’t a courtroom or a court-appointed panel of judicial specialists be doing that?
Two, if Ali was a real Indian citizen who was wrongfully declared a foreigner, why did the Excessive Court docket not name for a assessment of all such instances the place tribunals declared people as foreigners, as a substitute of instances the place they declared folks to be residents? Why assessment the 85%, if these like Ali truly fall inside the different 15%? What made the courtroom arrive at such a evident non-sequitur?
Three, would the courtroom’s directive to the state to assessment and act upon arguably fallacious foreigners tribunal orders not quantity to a violation of res judicata, a authorized precept that prohibits the events concerned in a sure case to reopen it after it has been determined by a reliable courtroom?
That is particularly essential because the Supreme Court docket had concluded within the case of Abdul Kuddus vs Union of India in 2019 that the precept does apply to the foreigners tribunals in Assam, besides within the case of household tree discrepancies over shut relations. What’s extra, the Gauhati Excessive Court docket had itself reaffirmed this in Could 2022, arguing that when an individual was declared an Indian citizen, they can’t be declared a foreigner once more.
4, why did the courtroom select to step out of the remit of the matter at hand – that’s, the order by the foreigners tribunal pertaining to Ali? Assuming that it observed a bigger operational malaise within the foreigners tribunal system and that the manager has some authority to assessment tribunal selections, why did it not direct the Assam authorities to assessment all foreigners tribunal orders, as a substitute of only one pool of orders?
Extra arbitrariness
The bench, as a substitute, seems to be saying that the fallacies of the foreigners tribunal system have allowed many “unlawful immigrants” to turn out to be Indian residents in Assam. In reality, it goes a step additional and asserts that this anomaly must be retroactively mounted – which means, closed instances have to be reopened.
This coheres with the idea of dominant Assamese nationalist teams who’ve been claiming that many entered the state’s Nationwide Register of Residents by subterfuge. The most recent draft of the register, first ready in 1951, was revealed in 2019 after the Supreme Court docket ordered the Assam authorities to replace it in 2013. Over 19 lakh folks have been excluded from the ultimate draft, leaving them in a clumsy limbo of contested citizenship.
Technically, the register is a listing of people who could be referred to the foreigners tribunals for a remaining willpower of their citizenship standing.
The Assam Public Works, a civil society group whose petition culminated within the 2013 Supreme Court docket order on the Nationwide Register of Residents, has been asking for an entire reverification of the register in 20 districts. It claims that some people in these locations managed to incorporate their names by way of “fraudulent means”. The Assam authorities itself has been searching for a reverification of 20% of candidates within the districts that border Bangladesh.
This mistrust emanates from a bigger perception, unsubstantiated as it could be, inside mainstream Assamese nationalist discourse that the Nationwide Register of Residents recognized far fewer “unlawful Bangladeshis” than it ideally ought to have. The Gauhati Excessive Court docket order is, in some ways, a reaffirmation of this rhetoric of mistrust across the Nationwide Register of Residents – a headcount course of that’s intrinsically linked to the foreigners tribunal system.
However, the vital paradox of the order is that after rightly getting down to determine and repair the arbitrariness within the foreigners tribunal regime, it provides an answer that would find yourself probably introducing much more arbitrariness into the system. By asking an incongruent authority – the Assam authorities – to make use of its discretion to assessment the orders of the foreigners tribunals and act upon them, the courtroom dangers opening up the entire tribunal system to the vagaries of government whim.
Additional, based on a report in The Telegraph, the Assam authorities, in response to the courtroom’s order, is planning to supply a “crash course” for members of Foreigners Tribunals on the Nationwide Legislation College and Judicial Academy, Assam. One solely wonders what such a course would entail or whether or not it is going to result in a lower within the variety of declared foreigners.
Missed alternative
The judicial method on this case exhibits that the authorized battles within the citizenship course of are a endless loop. The weak might escape, solely to be trapped in one other wrestle for recognition, dignity and rights. The legislation turns into a pendulum, swinging from one logical finish to a different, and the authorized regime a revolving door. As one individual is allowed to exit the territory of injustice, one other batch is pushed into it.
The regime to find out citizenship in Assam is a minimum of a bureaucratic and authorized maze. It’s incumbent upon the very best judicial our bodies of this nation to resolve these issues. However, by asking the state authorities to reopen closed information of those that have been already adjudged to be residents by the foreigners tribunals, the Gauhati Excessive Court docket has solely additional difficult this authorized labyrinth.
Within the course of, it has additionally created the chance for renewed anxiousness and worry throughout Assam. This has already been the hallmark of the Foreigners’ Tribunal regime and the Nationwide Register of Residents course of. The crucial to show one’s Indianness by way of printed paperwork has already generated widespread trauma, indignity and psychological displacement amongst a few of Assam’s poorest and most marginalised folks. They have been compelled to run from pillar to publish, many throwing away their lives’ financial savings, simply to show that they aren’t unlawful interlopers from Bangladesh.
The Excessive Court docket ought to have ideally intervened to mitigate this antagonistic social fallout of the entire foreigners tribunal course of. If it needed to step past the strict confines of Ali’s case, it may have used the chance to ascertain a system of state-sponsored authorized assist for people referred to the tribunals.
It may have additionally directed the state to offer ample compensation for many who had been wrongfully declared foreigners, lots of whom have spent a number of years in considered one of Assam’s six detention centres. Or it may have spared a second to have a look at the information of others who’ve been declared foreigners – simply in order that extra Forhad Alis aren’t misplaced on this maze perpetually.
As a substitute, by turning the highlight again to those that are declared as residents by way of Forhad Ali’s ordeal, the courtroom resorted to what thinker Gilles Deleuze and psychoanalyst Félix Guattari referred to as the “unfavorable legislation of lack”. In some methods, it brings to sharp reduction the psychosis of the legislation that, as a substitute of providing a constant foundation for political processes, behaves unpredictably to create disorientation. Moderately than easing the struggling of the weakest, it finally ends up creating what Deleuze and Guattari name “lawful violence”.
Angshuman Choudhury is an Affiliate Fellow on the Centre for Coverage Analysis, New Delhi, and co-founder of the Proper to Nationality and Citizenship Community.
Suraj Gogoi is a author based mostly in Bengaluru.
