15, Apr 2021 | CJP Team
Recently Citizens for Justice and Peace (CJP)’s Assam team discovered that a number of Foreigners’ Tribunal (FT) notices had been pasted on electricity poles in Bongaigaon in Assam. This is a clear violation of set law and procedure. In order to spot violations, one must first understand exactly how FTs are supposed to operate. Here, we have tried to answer some frequently asked questions, to empower you with all relevant and correct information.
How and when did Foreigners’ Tribunals come into existence?
The FTs came into existence through the Foreigners (Tribunals) Order, 1964 in order to let state administration (District collector/District Magistrate) to make reference about a person suspected to be a foreigner to the Tribunals. The Foreigners (Tribunals) Order, 1964 was enacted by the Central government through the use of powers granted under Section 3 of the Foreigners Act, 1946
Why do we need FTs?
The need for Foreigners Tribunals arises for two reasons:
- The superintendents of police (SPs) and district commissioners were empowered to detect suspected foreigners. There references for these “suspected persons” were required to be made before an authority which came into existence through the Foreigners (Tribunals) Order, 1964
- Election Commission of India (ECI) can also refer cases of D or Doubtful voters to the local SP, who then refers them to a tribunal to verify their citizenship
- The persons excluded from the final draft of National Register of Citizens (NRC) as released in August 2019 can appeal before the FTs to prove their citizenship
Are FTs meant only for Assam?
The Foreigners (Tribunals) Order, 1964 applies to the whole of India, yet, FTs exist only in Assam as of now. In other states if any illegal immigrant is found, he is produced before a local court and dealt with as per the Foreigners Act, 1946. Prior to the 2019 amendment to the Foreigners (Tribunals) Order, 1964 only the Centre was empowered to establish FTs in states but after this amendment the power has been granted to states as well.
What is FT supposed to do after receiving a reference against a person?
The Tribunal is supposed to serve upon such person a copy of the main grounds on which he is alleged to be a foreigner as also a show cause notice, within 10 days of receipt of reference from concerned authority. The notice should clearly indicate that the burden is on the proceedee to prove that he or she is not a foreigner.
In what language is the notice received?
The notice is to be served in English and also in the official language of the state.
What is the procedure to be followed while serving the notice?
The notice is required to be served at the address where the proceedee last resided or reportedly resides or works.
What if the address has changed?
If the change in address is intimated to the investigating agency in advance, then the notice shall be served on the new address. However, if such change of address is not known to the agency, the process/notice server will affix a copy of the notice on the door of the house the proceedee last resided and return the original to the FT.
Is the notice required to be served only upon the proceedee?
In case the proceedee (receiver of the notice) is not available when the server arrives, the server may serve the notice upon any adult member of the family and obtain their signature/thumb impression
What if the proceedee/family member refuses to accept notice?
In such a case, the server will ask any witness living in the locality, to attest to the fact that attempts were made to serve the notice and submit such a report before the FT. If nobody is willing to be a witness, the server will file a signed verification to the effect before the FT and that becomes sufficient proof of such non-availability, unwillingness and refusal.
What action does the FT take in case of non-availability of the proceedee?
When the FT receives such a report of non-availability, unwillingness and refusal of acceptance of notice, it will direct the competent authority to trace out the proceedee and produce him before it. Once such proceedee is brought before the FT he may be released on bail considering he produces documents supporting his claim.
How many days does the proceedee have to respond to a duly served notice?
The proceedee has 10 days to reply to the show cause notice and further 10 days to produce evidence in support of his or her case
What happens during the hearing?
The FT is to give the person a reasonable opportunity of making a representation (in person or through a lawyer) and producing evidence in support of his case. If it is a case of appeal for exclusion of one’s name from the NRC, the applicant is required to provide a certified copy of the rejection order received from the NRC officer (examining claims and objections), along with the grounds for appeal.
What are the specific provisions on evidence and witnesses?
The FT may refuse a prayer for examination of witnesses if it appears that the same is being done to delay the proceedings. However, any evidence produced by the SP has to be admitted by the FT
Can FT order a person to be detained in detention camps?
Yes, if the proceedee fails to produce any proof in support of his claim of citizenship, and also not able to arrange for bail, the FT shall detain him and send him to a detention centre.
How many FTs are there in Assam?
The Ministry of Home Affairs informed the Parliament in the Budget session of 2021 that there are currently 300 FTs in Assam.
How many days does the FT have to dispose of the case after reference?
The time stipulated under the Foreigners (Tribunals) Order, 1964 is 60 days after the receipt of the reference from the authority.
What procedure is to be followed after receiving a rejection order from NRC?
The proceedee (receiver of such rejection order) is required to approach a FT in his district, within 120 days of receipt of such rejection order
What if such a person fails to appeal before FT within stipulated time?
If no such appeal is filed by the proceedee, the District Magistrate is empowered to refer the case to the FT to decide whether the person is a foreigner or not
What is the procedure for an NRC appeal before the FT?
The Tribunal is required to issue a notice to the District Magistrate to produce NRC Records within 30 days of receipt of such notice. A copy of this notice is also to be provided to the appellant. After requisite documents (records) are submitted to the Tribunal, it will decide whether or not it finds merit in the appeal. If the FT deems there is merit in the appeal, it will issue notice to the Appellant and the District Magistrate. The date of hearing has to be within 30 days from the date of production of the records. While disposing the appeal, the FT has to give a clear finding as to whether the Appellant is a foreigner or not within the meaning of the Foreigners Act, 1946.
What documents is the Magistrate required to bring before the court?
The District magistrate is required to provide:
- NRC records in original
- Application Form and documents submitted by the Appellant
- orders passed by the NRC authorities against the claims or objections filed by the Appellant.
What should the FT order spell out?
The FT order, while disposing the appeal has to give a clear finding as to whether the Appellant is a foreigner or not within the meaning of the Foreigners Act, 1946. It should also contain its opinion on whether the Appellant is eligible for inclusion in the NRC or not. it should be a concise statement of facts and conclusion based on which the Tribunal has arrived at its decision.
Is there a time limit for disposal of appeal by the FT?
Paragraph 3A sub-para 16 of the Foreigners (Tribunals) Order, 1964 states that the final order shall be delivered by the FT within 120 days from the date of production of records by the District Magistrate.
Is there a procedure set out FT to follow while dealing with appeals?
The FTs have been bestowed with the power to regulate its own procedure for disposal of the cases expeditiously in a time bound manner. At the same time, it has the powers of a civil court as provided under Code of Civil Procedure in terms of:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) issuing commissions for the examination of any witness.
Are ex-parte orders passed by FTs?
Yes, ex-parte orders i.e orders passed in the absence of the proceedee/appellant, may be passed by the FT. In such a case, the proceedee may file an application within 30 days of passing of the order and present sufficient cause for non-appearance which will then be decided by the FT.
If the FT passes an order declaring someone a foreigner, can it be reviewed?
Yes, the Foreigners (Tribunals) Order, 1964 provides for a review application to be filed within 30 days of the date of the order and the FT will decide the case on merits.
Can an adverse order passed by the FT be appealed?
Yes, such an order can be appealed before the High Court.