New MHA order setback for citizens’ rights in Assam? Order grants multiple officials right to make FT reference, FTs get unspecified powers

08, Jun 2019 | Deborah Grey

On May 30, 2019, the Ministry of Home Affairs (MHA) issued an ‘Extraordinary Order’ via a Gazette which in effect appears not only grant powers to multiple authorities to make a reference to Foreigners’ Tribunals (FT), but also grants rather nebulous powers to FTs themselves. 

FTs are quasi-judicial authorities that decide upon the question of authenticity of a person’s citizenship in Assam. Now, in other court proceedings, including those involving crimes like murder and dacoity, a person is presumed innocent until proven guilty, and the onus is on the prosecution to prove the guilt of the accused. However, in an FT hearing, the burden of proof lies on the proceedee i.e the person whose citizenship is being questioned, has to prove not only the authenticity of their citizenship, but also the authenticity of the documents that are being used to build the case.

Giving FTs unprecedented and unspecified powers, therefore, appears to further dis-empower people who already face an uphill task and an uncertain future.

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The May 30, 2019 MHA order issued by Anil Malik, who holds the rank of the joint secretary (Foreigners) amends the Foreigners (Tribunals) Order 1964 and to create a new Foreigners (Tribunals) Amendment Order, 2019 that comes into effect with the publication of the Gazette.

The amendment is made by the Central Government by exercising the powers conferred by section 3 of the Foreigners Act, 1946 (31 of 1946), which states, “The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into 1 [India] or their departure therefrom or their presence or continued presence therein.”

Let us examine all the amendments and try to understand their implications for people in Assam.

 

Power of reference granted to multiple authorities:

The MHA order amends paragraph 2, sub para 1 of the Foreigners (Tribunals) Order, 1964, that originally reads as follows:

The Central Government may by order, refer the question as to whether a person is not a foreigner within the meaning of the Foreigners Act, 1946 (31 of 1946) to a Tribunal to be constituted for the purpose, for its opinion.

But the latest amendment says:

for the words “the Central Government may,”, the words “the Central Government or the State Government or the Union territory administration or the District Collector or the District Magistrate may,” shall be substituted.

What this means: Thus, the new amendment grants the power to refer people to multiple regional and local government, bureaucratic and judicial authorities. This widens the base of people who have the power to refer cases to FTs.

 

Additional provisions that grant FTs nebulous powers:

The MHA Order dated May 30, 2019 also provides for the inclusion of two additional paras and reordering the structure in the new Foreigners (Tribunals) Order 2019. Two of the provisions in the new paragraph 3A caught our attention:

Point 10: 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 and such date shall be within thirty days from the date of production of the records.

Point 17: 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.

What this means: This is a particularly disturbing development given how the word merit is not defined at all leaving the matter of determining merit entirely to the wisdom of the FT members. Given that FTs are quasi-judicial authorities and several concerns have been raised about their method of operation, ranging from selection of members and their qualifications, to the propensity of FTs to decide cases ex parte (in the absence of the proceedee), this ambiguity about what constitutes merit is significant.

It is noteworthy that often the proceedees (people against whom a reference has been made) fail to turn up for hearings due to several reasons including but not limited to-

• Late receipt or non-receipt of communication or summons to appear for the FT hearing
• Lack of understanding of summons due to illiteracy or limited education
• Lack of understanding of purpose of proceedings due to illiteracy or limited education
• Absence of resources to hire a lawyer
• Absence of resources to take time off work and attend hearings (in case of daily wage earners)
• Absence of resources to attend hearings in far flung locations
• Fear of being thrown into a detention camp

Furthermore, granting a quasi-judicial authority the power to regulate its own procedure for disposal of cases, gives them a virtual carte blanche to operate as they please! This is extremely dangerous as no authority should have unspecified or unlimited powers.

 

FTs reign supreme:

The inclusion of a new sub para 1B and strengthening it with provisions of new para 3B further seal the fate of proceedees, by placing their fate solely in the hands of FTs. The new sub para 1B that is to be inserted into the new Foreigners (Tribunals) Order 2019, says, “Any person referred to in paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 may prefer an appeal, on the terms and conditions specified therein, before the designated Tribunal constituted under this Order.”

The above-mentioned Paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 specifies the Power of District Registrar, Sub-district or Taluk Registrar or Local Registrar of Citizen Registration to obtain information stating,

“The District Registrar, Sub-district or Taluk Registrar or the Local Registrar of Citizen Registration may, by order, require any person to furnish any information within his knowledge in connection with the determination of Citizenship status of any person and the person required to furnish information shall be bound to comply with such requisition.”

The new para 3B refers to Procedure for disposal of cases in case of persons referred in sub-para (1B) of paragraph 2 not preferring an appeal. It says:

“In case a person referred to in paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 does not prefer an appeal within the period of sixty days before the designated Tribunal constituted under this Order, the authority mentioned in sub-para (1) of paragraph 2 of this Order may refer to the Tribunal for its opinion the question whether the said person is a foreigner or not within the meaning of the Foreigners Act, 1946 (31 of 1946) in terms of sub-para (1) of paragraph 2 of this Order. On receipt of such a reference, the Tribunal shall examine the same as per the procedure laid down in paragraph 3A of this Order.”

What this means: No matter who makes the reference or demands clarification about the citizenship status of a person, and whether the said person appears before a tribunal or not, it is the FT and FT alone that takes the final decision in the case. This is again extremely dangerous for reasons mentioned above. Additionally, it appears that provisions under the Indian Citizenship Rules serve only to further empower the FTs.

The entire MHA gazette may be viewed here:

 

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