Concerns with Foreigners Tribunal - Abdul Kuddus Case

What is the issue?

The Supreme Court recently decided on a batch of 15 petitions, regarding the National Register of Citizens (NRC) in Assam, under the title Abdul Kuddus v Union of India.
The judgement, strengthening the Foreigners Tribunal, seems contentious on human rights grounds, and thus need a relook.

What are the concerns in citizenship registration process?

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
[Foreigner’s Tribunal is a quasi-judicial body meant to decide whether a person is a foreigner or not within the meaning of Foreigners Act, 1946.]
While nominally independent, both processes nonetheless influence one another.
This has caused significant chaos and confusion for individuals who have found themselves on the wrong side of one or both.
Evidently, citizenship proceedings were mixed with administrative (and other kinds of) errors.
However, this often came to light much later, and often by chance; but the implications were serious.

What is the petition?

The petition was to resolve a “perceived conflict” in the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
It involved the status of an “opinion” rendered by a Foreigners Tribunal, as to the citizenship (or the lack thereof) of any individual.

The petitioners argued that an opinion rendered by the Foreigners Tribunal had no greater sanctity than an executive order.
Under the existing rules, this meant that an adverse finding against an individual would not automatically result in their name being struck off the NRC.
Furthermore, the Tribunal’s opinion could be subsequently reviewed, if fresh materials come to light.
The petitioners called for challenging the decision of the Foreigners Tribunal if it is used to justify keeping an individual out of the NRC.
This would then have to be decided independently of the decision arrived at by the Tribunal.
In short, the petitioners’ case was that the processes of the Foreigners Tribunal and of the NRC should be kept entirely independent of each other.
Also, primacy should not be given to one over the other.

What is the Court’s judgement?

The Supreme Court rejected the petitioners’ arguments.
It held that the “opinion” of the Foreigners Tribunal was to be treated as a “quasi-judicial order”.
It was, therefore, final and binding on all parties including upon the preparation of the NRC.
The Supreme Court’s judgement might severely affect the rights of millions of individuals, as there are serious shortfalls with the Foreigners Tribunal’s functioning.

What are the concerns with Foreigners’ Tribunals?

Essentially, Foreigners Tribunals were established by a simple executive order.
Officials - The qualifications to serve on the Tribunals have been progressively loosened.
Notably, the vague requirement of “judicial experience” has now been expanded to include bureaucrats.
Functioning - The Foreigners’ Tribunals are far from the normal understandings of ‘courts’, both in its form and functioning.
Under the current rules, Tribunals are -
1. given sweeping powers to refuse examination of witnesses if in their opinion it is for unworthy/unjustified purposes
2. bound to accept evidence produced by the police
3. not required to provide reasons for their findings
[As it is not a judgment, a concise statement of the facts and the conclusion would suffice unlike courts that add “reasons” to “facts” and “conclusions”.]
Flaws - In effect, Tribunals are left free to regulate their own procedure for disposal of cases.
Consequently, over the last few months, glaring flaws in the working of the Foreigners Tribunals have come to light.
As many as 64,000 people have been declared non-citizens in ex-parte proceedings, i.e., without being heard.
People are often not even served notices telling them that they have been summoned to appear.

Why is the judgement contentious?

The Court says that fixing time limits and recording of an order rather than a judgment is to ensure that these cases are disposed of expeditiously and in a time bound manner.
However, rejecting a person’s citizenship could have drastic and severe result of rendering a human being stateless.
So, when adjudicating upon a person’s citizenship, only the highest standards of adjudication can ever be morally or ethically justifiable.
The Foreigners Tribunal, however, is by design and practice manifestly the exact opposite of this principle.
So, in further strengthening the Tribunal, the Supreme Court has fallen short of being the last protector of human rights under the Constitution.
It seems to be a departure from the most basic principles of the rule of law.
Given this, if Article 21 (right to life) of the Constitution is to be meaningful, this entire jurisprudence must be reconsidered.

Source: The Hindu