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How New MHA Order on Foreigners Tribunals Across States Can Set a Dangerous Precedent

For representation: The Home Ministry office at North Block in New Delhi.

For representation: The Home Ministry office at North Block in New Delhi.

With the Home Ministry allowing the constitution of Foreigners Tribunals (FTs) across all states, the BJP has laid the groundwork to deliver each state its own National Register of Citizens(NRC).


Aditya Sharma

Guwahati: The release of Indian Air Force pilot Abhinandan Varthaman from a foreign territory and former army officer Mohammad Sanaullah’s release from a detention centre present two contrasting realities of India’s most valued profession – the defence forces.

Sanaullah’s release from a detention centre in Guwahati, meant to hold illegal immigrants, was a loud wake-up call to every citizen. It educated citizens about an intangible yet valuable commodity called citizenship while also displaying the possibility of being enveloped in the crimes of citizenship unknown to those beyond Assam.

With the Home Ministry allowing the constitution of Foreigners Tribunals (FTs) across all states, the BJP has set new precedence ahead of its next five years of governance. The new Foreigners (Tribunals) Amendment Order, 2019, dated May 30 lays the groundwork of BJP’s promise to deliver each state its own National Register of Citizens (NRC).

Decentralising Statelessness

Speaking to News18, human rights activist Harsh Mander condemned the May 30 order, saying that it “destroys the founding principles of India”.

“The May 30 order destroys the founding principles of India as a republic and it does so without elementary public discussion. The Citizenship Amendment Bill is next after this. Amit Shah had his promise (of the NRC) and we need to take his promise seriously,” he said.

During the Lok Sabha polls, Amit Shah — now the home minister — had repeatedly reiterated his party’s stand to implement NRC in all states.

“It is our commitment to bring in NRC across the country, to chuck out each and every infiltrator. We don't treat infiltrators as our vote bank. For us, national security is supreme. We would ensure that each and every Hindu and Buddhist refugee gets citizenship of this country,” he had said.

However, Mander said preparing the NRC with FTs ready to be constituted across all states in the country is a “hugely dangerous” process because of the multitudes who could be revoked of their citizenship.

“Decentralisation of the process of the statelessness is hugely dangerous. The NRC, along with the FT, have empowered local authority with local vigilantism. There will be other fractures that will come into play. It is hard to predict now what those will be. But, given that the MHA has a new order in place, there is no way out. It is hurting us, pushing us into a dark alley with no light,” he said.

Explaining the significance of the FT order as groundwork, the Human Rights activist said that the NRC and the Foreigner Tribunals are actually “twin processes”. “The NRC is what places the burden on you to prove citizenship on basis of documents, while the FT is the instrument through which the exclusion is going to result in,” he said.

Mander is not so optimistic about the culmination of these two projects. He said, “The NRC is one project where the Supreme Court has placed its mark. But it has also been the jugalbandi of the apex court and existing political leadership which has encouraged this communal erosion of constitutional guarantees. So there’s no U-turn”.

“It is like playing with fire now,” he added.

Prison for Progeny?

Following days of Sanaullah’s release from the detention centre, his counsel Aman Wadud is posed with another difficult question: what would the situation have been if the Home Ministry’s new order had been in place before his client’s arrest?

Wadud attempted to break this question down for News18. “Sanaullah’s case would have not seen any effect, but his children’s life will now face severe impact,” he said.

“Even if this law was not there, Sanaullah’s children will be excluded from the NRC because he was declared a foreigner by the FT. His children will have to follow the procedure stated under the new MHA order and appeal for inclusion before an FT,” he added.

The Home Ministry amended the Foreigners (Tribunals) Order, 1964 to include two new paragraphs that restrict an appeal against detection as foreigner solely to the FTs and under specific “terms and conditions”.

Harsh Mander said empowering a lower court like the FT has set a new precedence in judicial justice. “Would they do it with any other subordinate court?” he asked.

The new MHA order – in its own constitutionality – has given “unchecked power” to the FTs, said Aman Wadud. “While other judicial forums are regulated by the Code of Civil Procedure and the Code of Criminal Procedure, a quasi-judicial forum like the FT, which decides the most important constitutional right of citizenship, has been given unchecked power to regulate its own procedure”.

“The FTs often abuse this power according to its own whims and fancies. With the Centre helping the Assam government set up 1,000 FTs by July 31 this abuse of power will only increase,” he added.

With an appeal to a higher court ruled out in matters of citizenship, the right to justice for Sanaullah or his family, in erroneous cases such as this is absent in the new order. Wadud said, “In cases pertaining to the FTs, there are no informants or objectors to citizenship. These cases, where one is suspected to be a foreigner, are taken suo moto by the Border Police”.

However, with its tight noose on citizenship, the new order may try to bring the NRC to other states in the country, claimed Wadud.

“In other states, the NRC could easily be conducted if the government says it wishes to implement in full the National Identity Card Act, 2003 which allows the government to introduce a national identity. They can suo moto start the procedure. Now, when the Home Ministry is interested to implement the NRC, and it is also mentioned in the BJP’s party manifesto, in all probability they can introduce it,” he said.

“The new MHA order is the formal beginning,” he added.

A New Judicial Institution

The MHA’s order has officially set the ball rolling for the creation of a new range of lower courts, but with empowered authority. Given the quasi-judicial nature of these courts, the government is authorised to appoint members to FT to probe cases.

News18 spoke to Colin Gonsalves, Senior Advocate at the Supreme Court and co-founder of the Human Rights Law Network (HRLN) on the nature of FTs as a judicial institution.

He highlighted the two requirements that the Supreme Court has put in place for an FT: one, that it must have a judicial member, and two, that is must have the security of tenure like courts.

However, “the most shocking thing about setting up very large numbers of these Foreigners Tribunals is that the statutory requirement of a judicial member on a FT has been scrapped,” he said.

Gonsalves recalled the three Supreme Court judgements which had ruled that when you set up FTs to replace courts, you must have a judicial member on it. “Under the Act, you are required to have a judicial member and here they are appointing Advocates without any traditional experience,” he alleged.

A vacation bench comprising Chief Justice Ranjan Gogoi on May 30 had told the Assam government to include retired bureaucrats, not below the rank of secretary and additional secretary and having judicial experience, for appointment as members of the additional FTs which will be set up in the state.

However, the Supreme Court lawyer added, “When I went to Assam, lawyers told me that people who are close to the government are being appointed as FT members, and they sit to probe cases without a judicial member.”

Gonsalves also highlighted that the Supreme Court had originally guaranteed a security of tenure of court so that the judiciary is independent.

“When they began appointing members to FTs, they appointed them for two years, now they are appointing them for one year. The basis of renewal of tenure, however, is based on the number of people you have declared foreigners,” he said.

Gonsalves added that “the most shocking thing happening in Assam now is open to all states”.

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