You cannot shake hands with a clenched fist.
- Indira Gandhi
With Assam’s National Register of Citizens as the backdrop, the Ministry of Home Affairs (MHA) has laid out specific guidelines to detect, detain and deport foreign nationals staying illegally across the country. The MHA has amended the Foreigners (Tribunals) Order, 1964, and has empowered district magistrates in all States and Union Territories to set up tribunals to decide whether a person staying illegally in India is a foreigner or not. Earlier, the powers to constitute tribunals were vested only with the Centre. The NRC in Assam, which is a fallout of the Assam Accord of 1985, is set to be published by July 31 next. The accord states that all illegal foreigners who came to Assam after 1971 from Bangladesh, irrespective of the religion, have to be deported. Nearly 40 lakh people were excluded from this final draft list. As many as 36 lakh of those excluded have filed claims against the exclusion. The amendment substitutes “the Central government” with “the Central government or the state government or the union territory administration or the district collector or the district magistrate,” allowing all latter authorities to refer to the question: whether a person is not a foreigner within the meaning of the Foreigners Act, to FTs for its opinion and thereby creating one.
The new Foreigners (Tribunals) Amendment Order, 2019, not only lays down the roadmap for those not included in the NRC but allows states and UTs validate the authenticity of citizenship of any person in question by setting up their own foreigner tribunals. The new clause assumes significance given the propensity of the tribunals to decide cases ex parte (in the absence of the proceeded). The tribunals are now granted power to regulate its own procedure for the disposal of cases. Empowering the district magistrates to set up foreigners’ tribunals and handle the citizenship conundrum of detected illegal immigrant is a step in line to the introduction of NRC across the country, which BJP had promised in its manifestos. MHA amendment comes at a time when a 52-year-old retired army officer — Md Sanaullah — was declared an illegal immigrant by a foreigners tribunal. Though the army veteran was granted conditional interim bail by Gauhati High Court on June 7, there are many who are not as lucky and have been languishing in the detention camps for years. The High Court, one must keep in mind, has not absolved or acquitted Sanaullah, but the issue brings up inconsistency per se the tribunal’s working theory.
There is no denying that the May 30’s ‘extraordinary order’ of the MHA, issued an via a Gazette, has not only granted powers to multiple authorities to make a reference to foreigners’ tribunals (FT), but also has granted rather nebulous powers to FTs themselves. 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. The MHA order has created scope of apprehensions regarding injustice and unfair treatment.