Suspicion as evidence: The Supreme Court’s Sarbananda Sonowal judgments, and the chimera of legitimacy of foreigner tribunals

A number of legislation have attempted to solve the citizenship question in Assam over the years, some more successfully than others. ATREYO BANERJEE writes about how the Foreigners (Tribunals) Orders have evolved, and explains that the current regime perpetuates a culture of mass suspicion with no legal frameworks in place to ensure accountability.

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RELIGIOUS and ethnic minorities in Assam seem to be stuck in a never ending crescendo of violence. Already labelled as "termites" by representatives of the Indian State, they have little succour in terms of civil and political rights.

Such rights are premised on a person being able to prove that they fall within a State-sanctioned understanding of citizenship. In Assam, this adjudication takes place before the Foreigners' Tribunals (FT) which trounce procedural safeguards, displace citizens, encourage disenfranchisement, exacerbate statelessness and facilitate illegal detention.

In such situations, it is the Supreme Court which, being the court of last resort, is constitutionally mandated to protect both citizens and non-citizens falling under its jurisdiction. Yet, in an abdication of its duties, the Supreme Court has been complicit in the ascendancy of FTs. Furthermore, as will be explained here, the apex court brought about the substitution of the procedurally sound Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDTA) for a threadbare regime with negligible safeguards to adjudicate upon the claims of citizenship.

Sarbananda Sonowal vs. Union Of India (2005)

Section 6A of The Citizenship Act , 1955 (CA) read with the Foreigners Act, 1946 (FA) and the Foreigners (Tribunals) Order, 1964 (FTO 1964) is the executive underpinning on which FTs were established in Assam. However, FTs were not always tasked with determining the citizenship question in Assam.

Following the Assam Accord, there were two regimes – IMDTA, applicable only to Assam, and FA and FTO 1964, applicable to the rest of India.

In the case of Sarbananda Sonowal vs. Union Of India & Anr (2005) (Sonowal-I) before the Supreme Court, submissions were made stating that the IMDTA is arbitrary and that it discriminates against different classes of Indian citizens, thereby denying Assamese citizens equality in securing the detection and deportation of illegal immigrants from Assam. Additionally, the IMDTA was not effective in comparison to the FA, which placed stringent requirements on the executive authority tasked with determining "illegal immigrants".

The primary thrust was that the IMDTA does not contain any provision similar to Section 9 of the FA regarding 'burden of proof'. Therefore, the burden of proving that a person is not a citizen of India was squarely the responsibility of the authorities under the IMDTA, which made the task of chaffing out illegal immigrants arduous.

The Supreme Court, agreed with the submissions and struck the IMDTA down.

Sarbananda Sonowal (II) vs. Union Of India (2006)

Since the determination of a person being an "illegal migrant" was not under the FA, the then union government introduced the Foreigners (Tribunals) Order, 2006 (FTO 2006).

FTO 2006 once again placed the burden of proof regarding proving citizenship on the person making a complaint challenging the citizenship status of another person. Further, the FTO 2006 provided that the FT must consider if sufficient grounds exist to proceed against a person and must be satisfied that basic facts are prima facie established.

However, for reasons similar to Sonowal–I, the FTO 2006 was struck down by the Supreme Court in its judgment in Sarbananda Sonowal (II) vs. Union Of India (2006) (Sonowal-II), which directed the immediate setting up of FTs under the FA to identify illegal immigrants.

Also read: Citizenship's Rule of Exception

Violations of elementary justice

The striking down of the IMDTA and FTO 2006 was done on nativist and xenophobic tendencies, and was based on extraneous and bizarre reasons.

This reached its nadir when the apex court referred to the ancient Indian book Arthashastra, drew parallels with Article 355 of the Constitution of India, and observed that in modern warfare, a belligerent State may proactively attempt to alter the demographic of another State by indulging in population transfer. The court held that this would amount to "aggression" and that the IMDTA was facilitating this aggression.

References were also made to a Report on Illegal Migration into Assam dated November 8, 1998 prepared by an ex-governor of Assam. This report has been proven to be without basis, lacking empirical pedagogy, being grossly biased and containing numbers which are inflated and fudged.

Any statute which seeks to strip off the right to life and dignity of a person must comply with some notions of elementary justice. In this regard, the IMDTA established tribunals which would adjudicate upon references and required that members of the tribunals be retired district or additional district judges from an Indian state.

Further, complaints under the IMDTA could only be made if the applicant and the person alleged to be an "illegal immigrant" resided within the jurisdiction of the same police station. These applications mandatorily had to be accompanied by affidavits sworn by at least two persons corroborating the averments of the application. This procedure ensured that applications which came to the tribunal passed a vetting process, and had the added safeguard of being corroborated.

Given the nativist sentiments prevalent in Assam, this was a much-needed requirement to discourage malicious applications made against the religious and ethnic minorities in Assam.

Also read: NRC busts the myth around massive illegal migration into Assam

Most importantly, the IMDTA set out a procedure where on an application being made to the tribunal, notice has to be issued to the prescribed authority who had to furnish a report after undertaking an inquiry as to whether a person was an illegal immigrant. On the basis of this report, the tribunal could reject an application for being frivolous, or it could provide the person concerned with thirty days' time to make a representation against the averments of the application.

Coupled with the IMDTA rules, the prescribed authority, on conducting an inquiry, would submit its report to the Screening Committee. Thereafter, the Screening Committee, consisting of a sub-divisional magistrate and a police officer not below the rank of deputy superintendent of police, would make recommendations, based on the inquiry report, to the tribunal.

The tribunal could choose to accept or reject the report subject to a reasoned order. Therefore, complaints could not be made to the tribunal without proceeding through a rigorous and multi-tier complaint system.

Once a complaint had come before the tribunal, and a person was indeed found to be an "illegal immigrant", such person would have a statutory right of appeal against an order passed by the tribunal. Members of this appellate tribunal must have been a former judge at any High Court.

The Supreme Court found this procedure for adjudication under the IMDTA cumbersome and unduly strenuous.

The fact that applications made to the tribunal had to be corroborated and that a screening committee had to apply its mind before referring a report to the tribunal, did not find favour with the court. Incidentally, the court also noted that there is no right of appeal vis-à-vis a decision of the Screening Committee, and an applicant making a complaint is left without remedy should the Screening Committee not find merit in their case.

Therefore, the Supreme Court held that FTs under the FA and the FTO 1964, with their "reverse burden of proof", must adjudicate claims of citizenship. In deciding so, the court implicitly furthered a regime of suspicion as its primary concerns with the IMDTA were the rigorous evidentiary standards.

The court facilitated the creation of FTs whose legality is dubious, and whose members have wide powers to render persons stateless, while at the same time not having much judicial experience.

A culture of mass suspicion

The FA as such does not provide for the creation of an FT. In fact, the FA finds its origins in the Foreigners Ordinance, 1939 and the Foreigners Act, 1940.

Both the Ordinance and the 1940 Act stemmed out of the pressing need to regulate "foreigners" post the Second World War. Accordingly, the Ordinance, the 1940 Act and the FA were not legislated to identify and detain citizens on spurious grounds of lack of documentation during peace time in independent India.

Be that as it may, the FTO 1964 was ushered in through the use of executive powers under Section 3 of the FA. Not having seen any deliberation and dialogue in parliament, the FTO 1964 is devoid of legislative guidance while establishing tribunals.

The FA does not provide for any conditions which a member of the FT has to fulfil. Entry 2 of the FTO 1964 provides that members should have "judicial experience".

In fact, the members of the FT require minimal experience, quantified by the number of years that they have been enrolled with a state bar association. For example, an advertisement for appointment to the FTs prescribed inter alia that the advocate must not be below the age of thirty-five years, and ought to have had seven years of prior experience. This was previously forty-five years and ten years of prior experience.

Also read: It is a long way to citizenship in Assam – Part 1

Now, the provisions of the IMDTA ensured that judges were appointed to the tribunal. At the bare minimum, this would ensure that the tribunals are manned by persons familiar with basic civil and criminal procedure. This is also in tandem with the requirement of having senior and competent judges presiding over these tribunals, ensuring judicial experience.

Further, the FA provides no prescribed qualifications for presiding officers/members of the FTs. All the qualifications are provided ex post facto by executive authorities; as is clear from the above, the same is changed at will.

Under the FTO 1964, the registering authority under the Citizenship Rules makes references to the tribunal. Usually, the Election Commission (EC) or the Assam Border Police make these references. Both the EC and the Border Police are mandated to investigate prior to sending a reference to the FTs.

However, such investigations rarely happen, and references are made without applying one's mind. In fact, a person being referred is usually present with no opportunity to present their case before the Border Police and is usually made aware of such reference only after a notice from the FT has been issued. In contrast, the IMDTA had a dual requirement of applications being corroborated and thereafter, the averments being subjected to an inquiry.

Further, the Rules mandated that the screening committee apply its mind to the inquiry before the same came up before the tribunal. Such checks and balances are of paramount importance, given that the subjects of these references are usually persons belonging to incredibly impoverished backgrounds having no real recourse to any legal aid.

Moreover, it is telling that the Supreme Court overlooked the fact that there exists no statutory right of appeal within the FA or the FTO 1964. Further, the person being investigated cannot appeal the reference made by the EC or the Border Police. In fact, the only remedy available to the person once the FT has given an adverse opinion is to prefer a writ before the Guwahati High Court.

Further, a remedy in writ cannot by itself replace the right of statutory appeal. A right in writ, is in addition to a right of statutory appeal, and not its substitute.

Even the FTO 2006 provided for a two-pronged approach before proceeding against a person. Firstly, the FT would have to apply its mind on the available records and assess if sufficient grounds exist in the matter. Thereafter, the FT must establish that a prima facie case exists. Although guidance on what would constitute a prima facie case is not provided, such establishment of a prima facia case would operate prior to a person being called upon and the the reverse burden of proof being triggered.

Such a process is missing in the extant regime under the FTO1964, where persons are proceeded against arbitrarily and are called upon to discharge a heavy burden of proof without any prima facie finding being given.

Also read: Parliament Watch: Over 60,000 people declared foreigners in Assam without being heard between 1985 to 2019: minister informs Lok Sabha

In effect, the apex court, through the Sonowal judgements, perpetuated a culture of mass suspicion, where one's ethnic and religious status became salient to gauge citizenship. This regime made it legitimate to forego procedural justice, and is the reason why persons are arbitrarily stripped of their citizenship rights without any recourse or legal aid.

Diluted regimes

The situation which has been unfolding in Assam for decades is a fore glimpse into an India which is majoritarian.

The IMDTA was a humane approach to years of conflict in Assam. The Supreme Court's approach in striking it down in 2005 using the notes of national security, external aggression and the urgent need to restore state sovereignty is in sync with the violent eviction drive in Assam.

Although, the persons being evicted are not being tried to prove their citizenship yet, the message is clear – ethnic and religious minorities are not equal citizens, and will continue to be subjected to unrealistically cruel evidentiary standards, both inside and outside the court room. In a diluted regime, as the one existing today, the presumption of non-citizenship will continue to be the modus operandi of the state, transgressing the constitutional right to life and liberty.

As FTs are now going to come up in every Indian state, it remains to be seen how many more persons in other states, belonging to impoverished backgrounds, are stripped of their citizenship rights and rendered stateless.

(Atreyo Banerjee is a B.A., LL.B. (Hons.) graduate from the West Bengal National University of Juridical Sciences, and currently an advocate at Argus Partners, Solicitors and Advocates. The views expressed are personal.)