A peculiar amendment
The Ministry of Home Affairs has taken a prime step in combatting the illegal stay of foreign nationals in the country. The new Foreigners (Tribunals) Amendment Order, 2019, not only lays down the roadmap for those not included in the National Register of Citizens (NRC) but allows states and UTs to set up their own foreigner tribunals and validate the authenticity of citizenship of any person in question. And, the amendment also provides these foreigners tribunals, which were earlier specific to Assam, the power to regulate their own procedure. Though the MHA amendment will act as a guide for those not included in the NRC to approach foreigners tribunals with their case, for which the government will aid Assam in setting up 1,000 foreigners tribunals as well as e-foreigners tribunals, it seems to have empowered these quasi-judicial bodies beyond expectations. Empowering the district magistrates to set up foreigners tribunals and handle the citizenship conundrum of detected illegal immigrants is a step in line to the introduction of NRC across the country, which BJP had promised in its manifesto. MHA amendment comes at a time when Assam is reeling under the intense chaos of NRC final draft preparations wherein recently a 52-year-old retired army officer was declared an illegal immigrant by a foreigners tribunal. Though Sanaullah was granted conditional interim bail by Gauhati High Court on June 7, there are many who were not as lucky and have been surviving in the detention centres for as high as ten years now. Sanaullah is a classic example of a welfare government machinery acting otherwise. In the interest of its citizens, India's NRC exercise in Assam has been everything but citizen-sensitive. The tribunal's working theory brings up inconsistency per se. Usually, India's judicial system presumes a person innocent until proven guilty, and the onus is on the prosecution to prove the guilt of the accused. However, in a hearing of foreigners tribunal, the burden of proof lies on the person whose citizenship is under question and it is the person who has to prove the authenticity of their citizenship along with the authenticity of the documents corroborating the person's case. A clause under a new paragraph 3A added in the amendment of the Order states that the "subject to the provision of this Order, the Tribunal shall have the power to regulate its own procedure for disposal of the cases expeditiously in a time bound manner." The clause accounts for an alarming development raising caution since foreigners tribunals in Assam have recorded ex-parte proceedings – announcing verdict in the absence of the person in question – in order to expedite judgements. The same paragraph 3A has another contentious clause which states that "upon production of the records, if the Tribunal finds 'merit' in the Appeal, it shall issue notice to the Appellant and the District Magistrate for hearing specifying the date of hearing". The fact that a tribunal gets to decide if an individual's case is meritious, with no counter-validity mechanism in place, remains an ambiguous power standing entirely on the wisdom of the members of the tribunal. So not only do tribunals get unchecked powers to carry proceedings of potentially illegal immigrants at will, they have been conferred the status of final authority in this regard with the power to decide an appeal's validity. No authority should have such nebulous and supreme powers which bring appellants at the mercy of the appellate regarding the admissibility of their case. This only makes matters worse for appellants who will soon find themselves in large numbers following the publication of the final draft of NRC in Assam.
Curiosity pokes whether the amendment by MHA is a strict attempt to tackle the issue of illegal immigrants that has plagued the state of Assam owing to the porous border it shares with Bangladesh. And, if that is the case then why the empowerment to all DMs across India? Maybe, MHA anticipates that this illegal diaspora has mixed with citizens and spread across the country. But if that is so, why provide foreigners tribunals with overwhelming powers that may wreak havoc on the entire exercise that MHA envisages in their earnest ambition to liberate India from illegal immigrants? Questions pertain to aspects which are contentious and only discussions around those will make the water clearer for currently, it appears that major confusion amidst gross injustice of human rights may occur should the empowered tribunals resort to erroneous verdicts. As it is the NRC exercise has resulted in major upheaval in Assam. Ramifications due to the implementation of the amendment evoke apprehensions regarding injustice and unfair treatment which the state must cater to before the entire situation takes an uglier turn.