The Supreme Court and the Gauhati High Court have enabled the Foreigners’ Tribunals (FTs) to create a statelessness crisis in Assam, Amnesty International India said on Wednesday.
The global rights body made this observation in its briefing, ‘Designed to Exclude’, as it called for a review of the existing legislative regime governing the determination of nationality in India.
The FTs that determine the paramount right to citizenship in Assam are often dismissive, use derogatory language, control their own procedures and apply them in arbitrary ways, AI’s India head Aakar Patel said.
‘Not fair trial’
Assam currently has 300 FTs, with 200 of these set up after the Centre approved the State’s proposal to set up 1,000 new tribunals primarily for trying those excluded from the National Register of Citizens (NRC) that was published on August 31.
“Holding governments accountable for the human rights abuses they commit has always been difficult,” Mr. Patel said, adding that the judiciary has in the case of Assam aided the government institutions and the FTs in committing abuses with impunity.
People appearing before the FTs are not afforded the fair trial protections and human rights guarantees that flow from Article 21 of the Indian Constitution, applicable to both citizens and foreigners. This lack of protection has also been endorsed by the Gauhati High Court through its judgements in various cases, the rights body said.
“This includes reversal of the burden of proof on the person stands to be deprived of his/her nationality, depriving doubtful voters (D-voters) and declared foreigners of the right to a fair investigation, protection from multiple references, and a bar on the extension of deprivation of nationality from one family member to another family member,” it said.
AI cited the case of a Muslim woman who was declared a foreigner because she could not remember the constituency where her grandfather cast his vote in 1966, and that of a Muslim man whose who earned the foreigner tag because his grandfather’s name was spelt differently in two documents.
Along with the FTs, the Gauhati High Court – which most of the aggrieved approach in the absence of an appellate tribunal – has failed to consider the vulnerabilities of these people who are demanded to prove their nationality. The stringent burden of proof on the person suspected of doubtful nationality is absolutely divorced from the reality of documentation in India, the rights body said.
Alleging that the FTs have created havoc in Assam for the last decade-and-a-half, Mr. Patel said they have not been held accountable by the courts, the Centre and the State government. Thousands of such FTs could be set up across the country with Union Home Minister Amit Shah saying that there will be a nation-wide NRC, he added.
The FTs were created under the Foreigners’ Act of 1946 and the Foreigners (Tribunal) Order, 1964. The activities of these Tribunals increased after 2005 when the Supreme Court scrapped the Illegal Migrants (Determination by Tribunals) Act of 1983, which was allegedly pro-foreigners by putting the burden of proof of a person’s citizenship on an accuser.
The FTs place the burden of proving one’s Indian citizenship on the person suspected of doubtful nationality, without any procedure on how a reference can be made against a person to the tribunal while providing an “unreasonable” 10 days for people to produce their documents after receiving a notice, the rights body said.
“Moreover, the eligibility criteria of tribunal members have been gradually lowered over the years. The members do not have fixed tenures and are recruited on a contractual basis. An analysis of the affidavit filed by the Government of Assam in the Gauhati High Court shows that on an average, any member who declared foreigners in less than 10% of their disposed cases, stood the risk of being axed,” AI noted.
“If the FTs replicate their functioning across the country, then we will probably witness one of the largest process of arbitrary deprivation of nationality in the world,” Mr. Patel said.
