Why does Assam need more Foreigners Tribunals?

Why does Assam need more Foreigners Tribunals?

Updated on 17 June, 2019

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Foreigners Tribunals, unique to Assam, are in the news as the final list of the National Register of Citizens (NRC) is to be published by July 31, on the directions of the Supreme Court.

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  • The Registrar General & Census Commissioner, India, under the Union Home Ministry, published the final draft list of the NRC on July 30, 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 the final draft.
  • In the course of the year, 36 lakh people filed claims against the exclusion; the remaining four lakhs did not apply.
  • To give a proper hearing to those excluded from the final list and to handle the influx of applications, the Ministry of Home Affairs sanctioned 1,000 additional tribunals.
    • Of these, 400 will come up in the next month before the final publication of the list.
  • There are two parallel processes to establish citizenship:
    • National Register of Citizens (NRC), which is under preparation, and
    • Foreigners Tribunals operating under the Foreigners Act,

Background

  • Cases of suspected foreigners used to be handled by the IMDTs under the IMDT Act that the Indira Gandhi government passed in 1983 during the peak of the Assam agitation seeking ejection of people staying illegally in the State.
  • The system changed after the Supreme Court struck down the IMDT Act in July 2005 after hearing a petition by the present Assam Chief Minister Sarbananda Sonowal, who was an Asom Gana Parishad leader then.
  • The IMDT Act — applicable only in Assam while the detection of foreigners was done under the Foreigners Act, 1946 elsewhere in India — was said to provide special protection against undue harassment to the ‘minorities’ affected by the Assam Agitation.
  • The burden of proving citizenship or otherwise under the IMDT Act rested on the accuser living within a 3 km radius of the accused and the police, and not on the accused as required by the Foreigners Act.
  • The Supreme Court, while scrapping the IMDT Act in 2005, echoed the indigenous organizations and the Assam government’s observation that the Act “has created the biggest hurdle and is the main impediment or barrier in the identification and deportation of illegal migrants”.
  • This led to the establishment of foreign tribunal across the state to identify the foreigners
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Foreigners Tribunals across the State
  • Assam at present has 100 Foreigners Tribunals across the State.
  • According to the State’s Home Department, there were initially 11 Illegal Migrants (Determination) Tribunals (IMDT).
  • These were converted to tribunals after the Supreme Court scrapped the Illegal Migrants (Determination by Tribunals) Act, 1983 in 2005.
  • The State government established another 21 tribunals that year. Four more were added in 2009 and the remaining 64 were established in 2014 for disposal of cases that were piling up in the tribunals.
Foreigners Tribunal
  • Tribunal is like a quasi-judicial set-up.
  • It’s headed by a member appointed under the Foreigners Tribunal Act, 1941 and Foreigners (Tribunal) Order, 1984 as in the guidelines issued by the government from time to time.
  • A member can be a retired judicial officer of the Assam Judicial Service, a retired civil servant not below the rank of Secretary and Additional Secretary with judicial experience, or a practicing advocate not below the age of 35 years and with at least seven years of practice.
  • The member is also required to have a fair knowledge of the official languages of Assam (Assamese, Bengali, Bodo and English) and the State’s historical background giving rise to the foreigners’ issue.
  • The Assam Police Border Organisation, a wing of the State police tasked with detecting foreigners, readies the cases for the tribunals to decide who is a foreigner and who is not.
Foreigners (Tribunals) Amendment Order, 2019 that has replaced the 1964 one
  • The 1964 order on Constitution of Tribunals said:
“The Central Government may by order, refer the question as to whether a person is not a foreigner within the meaning of the Foreigners Act, 1946 (31 of 1946) to a Tribunal to be constituted for the purpose, in its opinion.”
  • The amended Foreigners (Tribunal) Order, 2019 empowers individuals to approach the Tribunals, if a person doesn’t find his or her name in the final list, they could move the Tribunal
    • Earlier only the State administration could move the Tribunal against a suspect, but with the final NRC about to be published and to give adequate opportunity to those not included, this has been done.
  • The amendment also provides for reference by district magistrates to the tribunal for its opinion as to whether the appellant is a “foreigner” or not.
    • Since the Foreigners Tribunals have been established only in Assam and in no other State of the country, this amendment is going to be relevant only to Assam at present.
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