7 PM | The judicial presumption of non-citizenship | 23rd July, 2019

Context: The Controversy in Assam pertaining to citizenship. 

More in news:

• On May 17, in a very short hearing, a three-judge Bench of the Supreme Court (the Chief Justie of India Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna) decided a batch of 15 petitions under the title Abdul Kuddus v Union of India.
• As many as 64,000 people have been declared non-citizens in ex-parte proceedings, i.e., without being heard by the Foreigners Tribunals.

National Register of Citizens (NRC):

• The Citizenship Act, 1955 provides for compulsorily registration of every citizen of India and issuance of National Identity Card to him.
• The Citizenship Rules, 2003 framed under the Citizenship Act, 1955 prescribe the manner of preparation of the National Register of Citizens. 
• There is a special provision under the Rules to prepare National Register of Citizens (NRC) in Assam which is application based and distinct from the rest of India where the process is enumeration based.
• NRC updation in Assam:
  • Citizenship being a subject of the Union List, policy decisions, guidelines and funds for NRC updation are provided by the Central Government but its implementation is done through the State Government machinery under the guidance of the Registrar General of India who functions as the Registrar General of Citizen Registration under Rule 15 of Citizenship Rules, 2003 as amended in 2009 and 2010.
  • All the names appearing in the NRC, 1951, or any of the Electoral Rolls up to the midnight of 24th March 1971 together are called Legacy Data. Thus, there will be two requirements for inclusion in updated NRC – 
    • Existence of a person’s name in the pre-1971 period
    • Proving linkage with that person. 
  • The provisions governing NRC updation in Assam are The Citizenship Act, 1955, and The Citizenship (Registration of Citizens and Issue of National Identity cards) Rules, 2003.

Issues with Citizenship in Assam:

• The first National Register of Citizens was compiled in 1951, after the Census was completed that year. The Partition of the subcontinent and communal riots had just triggered vast population exchanges at the border.
• Since 2015, the state has been in the process of updating the 1951 register. One of the stated aims of the exercise is to identify so-called “illegal immigrants” in the state, many of whom are believed to have poured into Assam after the Bangladesh War of 1971.
• In 1979, about eight years after the war, the state saw an anti-foreigners’ agitation. Assamese ethnic nationalists claimed illegal immigrants had entered electoral rolls and were taking away the right of communities defined as indigenous to determine their political future.

The Present Issue:

In the State of Assam, there are two ongoing processes concerning the question of citizenship.

1. Proceedings before the Foreigners Tribunals, which have been established under an executive order of the Central government.
2. The NRC, a process overseen and driven by the Supreme Court. 

Both of them functions independently and thus have caused significant chaos and confusion for individuals.

Foreigners Tribunals:

• These are quasi-judicial bodies meant to “furnish opinion on the question as to whether a person is or is not a foreigner within the meaning of Foreigners Act, 1946”.
• The Foreigners (Tribunals) Order, 1964 was issued by the Central Government under Section 3 of The Foreigners Act, 1946.
• It is applicable to the whole country.
• Major amendments in the Foreigners (Tribunals) Order, 1964 were undertaken in 2013.
• The Foreigners Tribunals get two kinds of cases:
  • against whom a “reference” has been made by border police
  • Whose names in the electoral rolls have a D (Doubtful) against them.

The Controversy:

• While hearing the matter of Abdul Kuddus, a resident of Assam who had been declared a foreigner by the Foreigner’s Tribunal on February 18, 2019, a Supreme Court bench comprising the Chief Justice of India (CJI), Ranjan Gogoi and Justice Sanjiv Khanna, when informed that Kuddus’ name also appeared in the final draft of the NRC for Assam along with his family, directed the case to be listed before the bench hearing the main NRC issue.
• As a result of this conflict between the ongoing NRC process and the opinions of the Foreigners’ Tribunal, the court perhaps had initially thought it fit to list the matters before the bench that was already overseeing the updating of the citizenship register.
• Subsequently, 15 separate special leave petitions (SLP) came up before the Supreme Court involving the identical issue.
• The Supreme Court rejected the petitioners’ arguments, and held that the “opinion” of the Foreigners Tribunal was to be treated as a “quasi-judicial order”, and was therefore final and binding on all parties including upon the preparation of the NRC.
• Finally, now we have a situation where an individual who finds their name in the NRC, is still declared a foreigner because the Supreme Court has held that the opinion of the Foreigners’ Tribunal will be final.

Issues with the Foreigners Tribunals:

1. Foreigners Tribunals were established by a simple executive order.
2. Qualifications to serve on the Tribunals have been progressively loosened and the vague requirement of “judicial experience” has now been expanded to include bureaucrats.
3. Tribunals are given sweeping powers to refuse examination of witnesses if in their opinion it is for “vexatious” purposes.  Subject to provisions of this manner, Tribunals are left free to “regulate their own procedure for disposal of cases.”

Way Forward:

A person’s citizenship is a basic human right. Declaring people foreigners in haste without judicially verifying their credentials can leave many human beings stateless. Under such circumstances, the Tribunal must uphold their fundamental constitutional promises and function with complete independence, without any hint of arbitrariness or discrimination in the adjudication process.

Source: https://www.thehindu.com/opinion/lead/the-judicial-presumption-of-non-citizenship/article28660624.ece