Foreigner's Tribunal

What is the Foreigner’s Tribunal?

The Foreigner’s Tribunal is a quasi-judicial body formed under the Foreigner’s (Tribunals) Order, 1964. The Central Government issued this Order in exercise of the powers conferred under Section 3 of the Foreigner’s Act, 1946, which accords the Central Government to refer questions to the Tribunal to decide with respect to all foreigners or concerning any particular foreigner or any prescribed class or description of a foreigner, to prohibit, regulate or restrict the entry and departure of foreigners into or from India or their presence or continued presence therein.

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Official Definitions

The Ministry of Home Affairs has stated that the Foreigners (Tribunals) Amendment Order, 2019 applies to the entire country and that ‘it provides that one or more Foreigners Tribunals can be established in a state as per its requirement’.

Purpose & Jurisdiction

The primary purpose of the Foreigners Tribunal is to determine whether a foreigner staying illegally in India is a ‘foreigner’ or not. The Tribunal operates in cases referred by the Border Security Force (BSF), local authorities, or through public complaints about the veracity of an individual’s citizenship. Although initially, only the Central Government could set these tribunals up to refer the question of whether a person is a foreigner or not within the meaning of its parent Act to a Tribunal constituted for this purpose, a 2019 Amendment expanded its ambit and empowered district magistrates in all states and UT’s for reference to Foreigners Tribunal’s if need be. As per Rule 1A of the Order, the registering authority appointed under Rule 16F(1) of the Citizenship Rules, 1956 may also refer the question as to whether a person of Indian Origin, complies with the requirements under Section 6A(2) of the Citizenship Act, 1955 to the tribunal.

In India, Foreigners Tribunals have only been established in Assam and no other states in this country, and therefore the order and its amendments apply to Assam only. Over 300 Tribunals are functioning in Assam, as of 2021 with an additional 200 being approved in principle to be added for the disposal of pending cases. In India, under the provisions of both the Foreigners Act 1946 and the Foreigners (Tribunals) Order 1964, only Foreigners Tribunals are empowered to declare the person as a foreigner. In Assam, the Tribunal addresses the issue of undocumented immigrants from neighboring nations, especially Bangladesh, and cases arising from the NRC process, where individuals excluded from the NRC list must prove their Indian citizenship.

Legal Framework

• Foreigners Act, 1946: Provides the legal foundation for the establishment and functioning of the Foreigners Tribunal.
• Foreigners (Tribunal) Order, 1964: Specifies the procedures for handling cases related to foreign nationals.
• Citizenship Act, 1955: Supplements the Foreigners Act by defining the conditions and procedures for acquiring or losing Indian citizenship.

History of the Foreigners Tribunal

The Foreigners Tribunal has evolved as a mechanism to determine the citizenship status of individuals and is closely tied to India's legal frameworks for citizenship determination and security concerns.

Post-Colonial Era

The legal foundation for the handling of ‘foreigners’ in India was laid by the Foreigners Act, of 1946 which was enacted during British rule and empowered the government to regulate the entry, exit, and presence of non-citizens. It did not originally include provisions for tribunals to adjudicate on citizenship disputes. Due to concerns about cross-border migration, the government passed the Immigrants (Expulsion from Assam) Act, 1950 which allowed the expulsion of immigrants from Assam who were deemed detrimental to public interest.

Formation of the Foreigners Tribunal

In response to increasing migration from Bangladesh (erstwhile East Pakistan), the government issues the Foreigners (Tribunals) Order, 1964 under the Foreigners Act to establish the tribunals. The tribunals were set up in Assam to tackle the concerns of illegal immigration.

Assam Accords

The Assam Agitation led by the All Assam Student’s Union (AASU) demanding the identification and deportation of undocumented immigrants from Bangladesh culminated in the signing of the Assam Accords of 1985 between the government and Assamese leaders, which established a cut-off date for detection and deportation of foreigners – March 24, 1971. Section 6A was added to the Citizenship Act, of 1955 which created a special provision for Assam and reinforced the role and purpose of the Foreigners Tribunals in the implementation of the mandates of the Accord.

Repeal of the IMDT Act

The Illegal Migrants (Determination by Tribunals) Act of 1983 was introduced to determine the citizenship status of suspected foreigners in Assam and unlike the present Foreigners Act, the burden of proof was placed on the state. This led to difficulties in the expulsion of suspected illegal immigrants by the government. In 2005, the Supreme Court held in the judgment of Sarbananda Sonowal vs. Union of India that the IMDT Act was inefficient and repealed the same which led to the reinstating of the Foreigners Tribunals under the 1946 Act which shifted the burden of proof onto the accused individuals.

Functioning of the Tribunal

What is the Composition & Constitution of the Tribunal?

Each member is appointed under the Foreigners Tribunal Order 1984 as per the guidelines issued by the government from time to time. The Central Government or District Magistrate may by order, refer the question of the status of a person as to whether they are a foreigner or not, within the meaning of the Foreigners Act, 1946 to the Foreigners Tribunal. The Tribunal is to consist of such a number of persons having judicial experience, such as judges, advocates, or civil servants as the Central Government may deem fit. If there are two or more members, then one of the members is to be appointed as the Chairman of the Tribunal.

The following are the criteria laid down for the filling up of posts of members of the Foreigners Tribunal:

• Any willing serving or retired District/Additional District Judges (Grade I Officer). The retirement age of judicial officers will be 67 years old.
• Any practicing advocate who has completed 55 years of age with 10 years of practice. Any lawyers appointed will be on a contractual basis of 2 years or as extended accordingly and will be allowed to work till 60 years of age.
• Fair knowledge of the official language of Assam and its historical background

What is the Power of the Tribunal?

As per Rule 4 of the Order, the Tribunal shall have the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 concerning:

• Issuing summons and enforcing the attendance of any person and examination of the person on oath;
• Requirement of discovery and production of any document
• Issuing commissions for the examination of any witnesses
• Directing the proceedee to appear before it in person
• Issuing a warrant of arrest on non appearance of proceedee

What is the Procedure of Disposal for Questions referred?

Referral of Questions

The Tribunal is empowered to regulate its procedure, subject to the wide mandates laid down within the order. Foreigners Tribunals may receive cases through these channels:

• Border Police: The Assam Police Border Organisation, a wing of the State Police tasked with detecting foreigners, is empowered to refer a person it suspects to be a foreigner to a Tribunal. All police stations across Assam have the presence of the border police.
• Election Commission of India: In 1997, the Election Commission of India revised the electoral rolls in Assam which listed over 200,000 people as Doubtful or a D Voter. After the case of Sarbananda Sonowal vs. Union of India in 2005, these cases were referred to the Foreigners Tribunal.
• National Register of Citizens: In 2019, the NRC excluded more than 2 million people from its final list, the exclusion of which may be appealed to by the people at the Foreigners Tribunal for its opinion. As per Para 8 of the Schedule of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, which provides for the Special Provision as to the Manner of Preparation of National Registrar of Indian Citizens in the State of Assam, any person not satisfied with the outcome of the list may prefer an appeal before the Foreigner’s Tribunal within one hundred twenty days from the date of the order.

Issuance of Notice

Individuals suspected of being foreigners are referred based on various factors such as a lack of documentation or doubt in voter status. Generally though, as soon as a question is referred to the Tribunal, as per Rule 1 and 1A of the Order, the Tribunal is to serve a copy of the main grounds alleged against him to be a foreigner, on the person and provide him an opportunity to make a representation and adduce evidence on his part, by issuing a notice in English or the official language of the State within 10 days from receipt of referral.

Submission of Evidence & Hearing

Such a person served has 10 days thereafter to reply to the notice and another 10 days to produce evidence to support their case. The evidence submitted to prove their citizenship can include documents like birth certificates, school certificates, land records, and other similar official documents. The Tribunal examines the documents adduced and can call on witnesses or seek additional information if necessary to verify the same.

Decision

After consideration of the same and hearing such person(s), the Tribunal may submit its opinion to the authority that referred the question in the first place. If the evidence is deemed insufficient, then the individual may be declared a foreigner and if the evidence is sufficient, then such a person is recognized as a citizen of India. A Foreigners Tribunal has to dispose of a case within 60 days of reference and on failure of proof of citizenship, the Tribunal has the power to send the person to a transit camp, for deportation thereafter.

Procedure for setting aside of ex-parte orders

If the Foreigners Tribunal has passed an ex-parte order for non-appearance of the proceeded and the individual possesses a sufficient cause for non-appearance, then on an application filed within 30 days or the said order, the ex-parte order may be set aside and the case may be decided accordingly. The proceedee may apply to the tribunal within 30 days to review the decision of the tribunal claiming that he is not a foreigner and such application may be reviewed within 30 days of receipt of the application.

Procedure for disposal of appeal

An appeal is to be filed within 120 days as specified under Para 8 of the Schedule appended to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 with a certified copy of the order of rejection received from the NRC authorities. The representation may be by way of appearance through a legal practitioner or a relation authorized by the appellant. The Tribunal shall issue notice for the production of NRC records within 30 days to the District Magistrate, who is to provide the same in original. In case no appeal is preferred, then the District Magistrate may refer to the Tribunal for its opinion on the question of whether the person is a foreigner or not. In case any FT has previously given an opinion about an individual earlier as a foreigner, then such person is ineligible to file an appeal to any Tribunal. If the Tribunal finds merit in the appeal, then a hearing shall be scheduled in the same regard. During the hearing, the Tribunal shall provide the appellant and government pleader with the opportunity to present their case and produce any evidence on their respective behalf, after which the Tribunal shall dispose of the appeal. If the appeal is rejected, then a clear reasoning is to be provided as to whether the appellant is a foreigner or not in the final order. The final order shall be given within a period of 120 days from the date of production of records.

Landmark Cases on the Foreigners Tribunal

Md. Rahim Ali @Abdur Rahim vs. The State of Assam & Ors., 2024

In July 2024, the Supreme Court of India overturned a decision by a Foreigners Tribunal that had declared Md Rahim Ali a foreigner. The tribunal's ruling was primarily due to minor discrepancies in the spellings and dates within Ali's documents and the Court opined that in view of detailed analysis the discrepancies in the material produced by the appellant can be termed minor and not be deemed sufficient to lead the Tribunal to doubt and disbelieve the appellant and the version put forth by him. The Supreme Court's intervention underscored the need for tribunals to consider the socio-economic realities of individuals and not rely solely on minor inconsistencies when determining citizenship. The Court held that authorities cannot randomly accuse people of being foreigners and initiate investigation into a person’s nationality without there being some material basis or information to sustain the suspicion.

Mohammad Sanaullah’s Case, 2019

Mohammed Sanaullah, a retired Indian Army officer who had served for three decades, was declared a foreigner by a Foreigners Tribunal in May 2019. The tribunal's decision was based on a 2008 report by the Border Police, which alleged that Sanaullah was an "illiterate labourer" from Bangladesh. Following the tribunal's ruling, he was detained in a detention centre and was later released on bail by the Gauhati High Court. This case garnered widespread attention and raised concerns about the procedures and evidentiary standards employed by the tribunals since a number of irregularities surfaced. In the inquiry report, the border police had written that Mr. Sanaullah was a labourer. The investigating officers claimed their signatures had been fabricated and that it may have been an administrative mix-up but it was on the basis of these material that the Tribunal had concluded on the status of Mr. Sanaullah as a foreigner.

Rahima Khatun vs. Union of India

The Gauhati High Court set aside an ex=parte order passed by the Foreigners Tribunal which declared the petitioner to be an illegal migrant, on the basis that the same had been passed without providing the petitioner the opportunity to be heard and remanded the same back to the Tribunal for reconsideration. The Court set aside the same by opining that, “citizenship is one of the most important rights of a person. By virtue of citizenship, one becomes a member of a sovereign country and becomes entitled to various rights and privileges granted by law in the country and, as such, if any question arises about citizenship of a person, in our opinion, the same should be adjudicated as far as possible on the basis of merit and on hearing the person concerned”. This judgement is in alignment with a number of judgements which set aside ex-parte orders by the Foreigners Tribunal in cases including Asor Uddin vs. Union of India[6], Md. Misher Ali @ Meser Ali v. Union of India[7] and Mamtaz Begum vs Union of India, WP(C) No. 7305/2021 by both the Supreme Court as well as the Gauhati High Court.

Golapi Begum vs. Union of India, 2020

The Gauhati High Court held that the Tribunal overstepped its jurisdiction in declaring the petitioner as a foreigner on the basis of a ground that was not referred to it and opined that the Tribunal cannot assume suo motu jurisdiction to render an opinion beyond what is sought. The matter was sent back to the Tribunal for reconsideration. The High Court held that essentially the Tribunal went beyond the reference as no opinion was sought as to the date of entry of the petitioner into India and stated that the Tribunal was only required to answer the reference and not beyond the terms it dictates.

Research engaging with the Foreigners Tribunal

"Designed to Exclude: How India's Courts Are Allowing Foreigners Tribunals to Render People Stateless in Assam", Amnesty International (2019)

Amnesty International published a report titled “Designed to Exclude: How India's Courts Are Allowing Foreigners Tribunals to Render People Stateless in Assam" which conducts an in-depth analysis of the systemic issues associated with the Foreigners Tribunals (FTs) in Assam, highlighting their procedural flaws, human rights violations, and the complicity of the Indian judiciary in perpetuating the exclusionary practice. The report argues that India's judiciary, including the Supreme Court and Gauhati High Court, has legitimized the exclusion of people, especially those of Bengali origin, by endorsing national security narratives over human rights concerns. Courts have upheld discriminatory legal provisions and denied individuals fair trial standards. Key rulings, such as Sarbananda Sonowal v. Union of India (2005), equated migration with "external aggression," leading to the dilution of constitutional protections. The report highlights how the Foreigners Tribunal contravenes international legal obligations under treaties such as the Universal Declaration of Human Rights and the Convention on the Rights of the Child. Arbitrary deprivation of nationality has resulted in prolonged detention, forced separation of families, and socio-economic hardships.

Report on NHRC Mission to Assam’s Detention Centre's from 22 to 24 January, 2018

The NHRC published a report on its Mission to Assam’s Detention Centres in 2018 on the detention centers established for suspected illegal immigrants in Assam. It investigates the legality, due process, human rights concerns, and long-term implications of detaining suspected illegal immigrants. It criticizes the lack of a clear legal framework concerning a legal regime governing the detention centers (presently managed under the Assam Jail Manual). It criticizes the flaws in procedure and the denial of due process, by way of arbitrary declaration of foreigners ex-parte and the functioning of the Border Police who allegedly operate under a quota system with monthly targets to register a certain number of cases. The report also sets out certain recommendations for the Central Government, including the establishment of a legal framework for detention centers and ensuring due process along with requisite legal representation. The report also recommends expediting repatriation agreements as well as establishing a fast-track mechanism for those who admit to being foreigners. The report raises serious human rights concerns emphasising that detention should not be indefinite and should not be punitive. It highlights systemic flaws in the tribunal's process, particularly the lack of legal aid and ex-parte judgments.

“Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in Assam”, Talha Abdul Rahman (2020)

Talha Abdul Rahman in the article, “Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in Assam” critically examines the functioning of Foreigners Tribunals (FT) in Assam, particularly in the context of the NRC. It argues that Assam has a long history of migration and identity-based conflicts, often politicized to serve nationalist interests. The NRC process which excluded 1.9 million residents in 2019, has placed an immense legal and social burden on those deemed ‘foreigners’, particularly affecting Bengali-speaking Muslims. It raises concerns about the lack of independence and transparency in FTs, including criticizing the lack of clear judicial criteria and allowing lawyers with minimal experience to serve as adjudicators, which in turn raises questions about due process, bias, and fairness, given the tribunal's power to render individuals stateless. The article ultimately argues that the FTs are designed to exclude rather than fairly adjudicate regarding claims of citizenship and underscores the need for legal reforms including independent judicial oversight and an assessment of the tribunals functioning in line with constitutional and international human rights.

“Beyond Papers: Understanding the Making of Citizenship in the Foreigners Tribunals of Assam”, Fariya Yesmin (2024)

In the article titled, “Beyond Papers: Understanding the Making of Citizenship in the Foreigners Tribunals of Assam” by Fariya Yesmin, the belief that citizenship in Assam’s FTs is determined through documentary evidence is challenged and it argues that there is an interplay between legal, social and bureaucratic processes that construct the notion of ‘citizenship’, which is further shaped by factors such as class, religion, language, etc. The paper undertakes ethnographic research with lawyers, border police, tribunal members and individuals affected which brings out that the possession of documents does not necessarily become a guarantee of recognition as a citizen. It highlights structural flaws within the tribunal system by pointing out the procedural inconsistencies and influences that shape the outcomes of the tribunal’s decisions. It points out that the reversal of the burden of proof places undue hardships on individuals, who may lack the legal literacy or financial means to navigate through the process effectively. It critiques the religious and class-based profiling that disproportionately targets Bengali-speaking Muslims as being foreigners. It stresses that the production of citizenship therefore becomes performative, requiring individuals to align their narratives with the expectations doled out by tribunal members, with those who fail to meet the same being rendered stateless.

Some other equally engaging literature that delves into the Foreigner’s Tribunals are as follows:

• Nargis Choudhury, "Access to Justice for Women under  Foreigner’s Tribunal Act, 1946 in Assam" 2023 Mahanirban Calcutta Research Group, http://www.mcrg.ac.in/PP148.pdf
• Sarfaraz Nawaz & Surajit Das, “A Panacea Bad in Law (A Study into the Origin, Nature and Constitutional Validity of Foreigners Tribunals)”, SCC Times, November 2021. https://www.scconline.com/blog/post/2021/11/02/a-panacea-bad-in-law/
• Kalantry, Sital and Tarafder, Agnidipto, Death by Paperwork: Determination of Citizenship and Detention of Alleged Foreigners in Assam (June 25, 2021). Cornell Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3873978 or http://dx.doi.org/10.2139/ssrn.3873978
• Padmini Baruah, '"The Right to Have Rights": Assam and the Legal Politics of Citizenship' (2020) 16 Socio-Legal Rev 17, https://heinonline.org/HOL/Page?handle=hein.journals/soclerev16&id=183&collection=journals&index=
• Sitlhou, Makepeace. “Strangers in Their Own Land: Assam’s Bengali-Origin Muslims Face Disenfranchisement and Indignity.” The Baffler, no. 65, 2022, pp. 26–35. JSTOR, https://www.jstor.org/stable/27169056