Judiciary must reexamine how it has viewed citizenship questions in Assam

Synopsis: NRC was designed to filter out the foreigners in India. However, this seems to be impacting the very right of citizenship of Indians residing in Assam.

Introduction

Recently, Gauhati High Court, while hearing the case of Asor Uddin, gave its view on citizenship. Ason was declared to be a “foreigner” by a Foreigners Tribunal through an ex parte order.

The HC said citizenship, being an important right of a person, should be decided based on merit. It should consider the material evidence that is produced by the person concerned. It should not be cancelled ex-parte or by default.

Why Foreigners Tribunal is in news?

In Assam, any person, including decorated army officers, can be accused of being a “non-citizen”. The Ministry of Home Affairs revealed in Parliament, that from 1985 to February 28, 2019, 63,959 people have been declared “foreigners” through ex parte orders by the Foreigners Tribunal in Assam.

So, effectively 62% of the total people, who have been challenged as foreigners, have been declared as “foreigners” in the state.

What is the Foreigner Act (FA)?

Its roots lie in the Foreigners Ordinance, which was promulgated in 1939 to meet the emergency created by the Second World War. The ordinance was never meant to deal with persons who are considered citizens. Section 2(a) of the 1946 Act defines “foreigner” as a person who is not a citizen of India.

Foreigners Act, 1940: It replaced the said ordinance. Section 7 of the 1940 Act vested the burden of proof upon the foreigner.

Foreigners Act, 1946: It repealed the 1940 Act. But, the burden of proof remained the same. Under it, a person can be stripped of his citizenship if he/she failed to appear before FT when called. He will then be declared a “foreigner’ through an ex parte order.

What was the Supreme Court’s judgement?

The “burden of proof” has been validated by the Supreme Court in the Sarbananda Sonowal case. Sonowal challenged the Illegal Migration (Determination by Tribunals) Act, 1983, (henceforth IMDT), before the SC. IMDT emphasized procedural fairness and the burden of proof was on the state. But IMDT was declared unconstitutional as the apex court found these procedures “extremely difficult, cumbersome and time-consuming”.

Moreover, Supreme Court, based on a 1998 report by former Assam Governor S K Sinha has stated that there are “millions of illegal Bangladeshi nationals in Assam”. But the report was not based on any scientific and empirical data. To add to the complexity, Assam started detaining “declared foreigners” since 2010 to deport to the “country of origin”. But the failure to deport created a situation of indefinite detention.

What should be the way forward?

Given the fact that Citizenship is an important right, it should be given due importance.

Source: This post is based on the article “Judiciary must re-examine how it has viewed citizenship question in Assam “published in Indian Express on 23^rd September 2021.