[dropcap]T[/dropcap]HE Supreme Court today issued notice to the Union Home Ministry and State of Assam on a petition filed by the All Assam Minorities Students Union (AAMSU) challenging the constitutional validity of certain provisions of the Foreigners (Tribunals) Amendment Order, 2019 (Amendment Order, 2019) notified by the Central Government on May 30, 2019.
The Court has asked Centre and the Assam Government to reply to the petition within four weeks.
The petition filed through Advocate on Record Fuzail Ahmad Ayyubi, has contended that the Amendment Order, 2019 contains certain provisions which are in violation of the fundamental liberties guaranteed under Articles 19 and 21 to a large number of persons who have either not been included in the draft National Register of Citizens (NRC) being updated for the State of Assam and those who will be preferring an appeal after their non-inclusion in the final NRC and the rejection of their claims.
Ambiguity regarding Clause (1) of Paragraph 3A in the Amendment Order, 2019
The petitioner submitted that the procedure set out under Clause (1) of the Paragraph 3A of the Amendment Order, 2019 was biased and would lead to grave injustice. The clause says that a person may file an appeal only upon production of a certified copy of the rejection order received from the NRC Authorities along with the grounds of appeal.
Paragraph 8 of the Schedule to the 2003 Rules, on the other hand says an appeal may be filed within a period of 60 days from the date of the order of rejection of claims/objection and that the appeal must be accompanied by a certified copy of the rejection order, thereby leaving an ambiguity between Paragraph 8 of the Schedule to the 2003 rules and the procedure prescribed under the impugned provisions of the Amendment Order, 2019.
There is no provision for condonation of delay; nor is there any safeguard that the NRC authorities must issue a certified copy of the order in a time bound manner, the petitioner has said.
Bypassing the already existing procedure under Paragraph 3 by addition of Clause (6) to Paragraph 3A and Paragraph 3B:
The petitioner further alleged that another arbitrary aspect of the Amendment Order, 2019 was that while a person may prefer an appeal for inclusion in the NRC as provided under Paragraph 8 of the Schedule to the 2003 Rules, Clause (6) of Paragraph 3A in the Amendment Order, 2019 provides that at the same time the District Magistrate may also refer to the Tribunal for its opinion the question as to whether the appellant is a foreigner or not within the meaning of the Foreigners’ Act, 1946.
It also stipulates that such reference shall be deemed to be a reference in terms of sub-para (1) of Paragraph 2 of the Foreigners (Tribunal) Order, 1964. While under Paragraph 3 of the 1964 Order an entire procedure has been laid down for disposal of questions referred to in terms of sub-para (1) of Paragraph 2, Clause (6) of Paragraph 3A of the Amendment Order, 2019 provides that if such a reference is made by the District Magistrate, the same will be dealt with by the Tribunal along with the appeal under Paragraph 3A of the Amendment Order, 2019 thus resulting in a complete jumbling up of the two distinct judicial processes.
A similar anomaly, according to the petitioner, is also evident in the newly inserted Paragraph 3B of Amendment Order, 2019 which provides that in cases where a person has not preferred an appeal within 60 days under Paragraph 8 of the Schedule to the 2003 Rules, the Authority referred to under sub-para (1) of Paragraph 2, may refer to the Tribunal the question as to whether such a person is a foreigner or not and it further provides that this reference will also be dealt with by the Tribunal as per the scheme provided under Paragraph 3A of the Amendment Order, 2019 and not under Paragraph 3, which had so far been relied upon as the procedure for disposal of such questions.
Possible Denial of Opportunity of Hearing under Clause (10) of Paragraph 3A:
The petitioner claimed that Clause (10) of Paragraph 3A of the Amendment Order, 2019 was being challenged inasmuch as it stipulates that it is only if the Tribunal, upon production of records by the District Magistrate concerned, finds merit in the appeal that it may issue a notice for hearing the appeal. This means that the appeal may also be rejected at the threshold by the Tribunal without even granting an opportunity of a hearing to the appellant as the obligation of granting such an opportunity occurs only at the stage of hearing. The Tribunal is not obligated to afford a hearing if it otherwise decides not to issue notice after the production of records as provided under Clause (10) of Paragraph 3A contained in the Amendment Order, 2019.
While the Tribunals, according to the petitioner, have been entrusted with a very crucial task of being the final adjudicatory authority with respect to appeals arising out of the rejection of claims by the NRC authorities, the purpose of setting up such Tribunals for identification of foreigners and determination of Indian citizenship would stand frustrated if unfairness, unreasonableness and arbitrariness was allowed to creep into the procedure and to thwart this gigantic exercise.
