The Judicial Presumption of Non-Citizenship

Abdul Kuddus, a resident of Assam had been declared a foreigner by the Foreigner’s Tribunal

But his name had appeared in the final draft of the NRC for Assam along with his family

There is a conflict in inclusion under NRC and exclusion under Foreigner Tribunals. This was a case asking the SC if the Foreigner Tribunal had powers to declare a person as foreigner.

The issue arose because, in the State of Assam, there are two ongoing processes concerning the question of citizenship.

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

View of the Appellant

  1. The petitioners’ case was that the two processes — that of the Foreigners Tribunal and of the NRC — should be kept entirely independent of each other, and without according primacy to one over the other.
  2. The appellants argued that the Tribunal is not a competent authority to declare someone a foreigner, in the context of the NRC.
  3. They viewed orders by the Foreigners Tribunal as mere executive orders that do not carry judicial weight.
  4. They cited the fact that Tribunal orders are not judgments, referring to a 2012 Amendment to the Foreigners (Tribunal) Order, 1964.

Questions before the Supreme Court?

  1. Is the Foreigners Tribunal the ‘competent authority’ to declare someone a foreigner, under paragraph 3 of the Schedule to the Citizenship Rules, 2003 (2003 Rules)?
  2. Does res judicata apply to orders by the Foreigners Tribunal? Meaning, once you have been declared a foreigner by the Tribunal, are you barred from approaching it a second time?
  3. Should the Supreme Court create an appellate forum, exercise its power under Article 142 of the Constitution, for those appealing exclusion from the NRC?

What did the Supreme Court say?

  1. The Court held that orders by the Tribunal prevail over orders by the government to include/exclude names from the NRC.
  2. The Court rejected their argument, holding that the Tribunal is the competent authority under the parent Act of the 2003 Rules.
  3. According to Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 (the “2003 Rules) stipulated that a person who had been declared an illegal immigrant or foreigner by the competent authority would not be included in the consolidated list or the final National Register of Citizens
  4. The Court invoked Section 6A of the Citizenship Act, 1955, which states that the Tribunal is competent to declare someone a foreigner.
  5. Further, the Court stated that the appellants had failed to establish who an alternate competent authority could be. Hence, it declared that orders of the Tribunal are “quasi-judicial” and not merely executive.

Outcome

  1. As a result of this judgment, those excluded from the NRC may only file an appeal before the Foreigners Tribunal.
  2. But if they have previously already been declared a foreigner by the Tribunal, their only option is to file a fresh writ petition before the High Court of Guwahati.
  3. 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.

Issues with the Judgment

Neither in their form nor in their functioning do Foreigners’ Tribunals even remotely resemble what we normally understand as “courts”. It means that these tribunals are not effective as that of the courts in efficacy.

  • First, Foreigners Tribunals were established by a simple executive order.
  • Second, qualifications to serve on the Tribunals have been progressively loosened and the vague requirement of “judicial experience” has now been expanded to include bureaucrats.

Alarmingly, an investigative media report featured testimony by a former Tribunal member who stated that his compatriots competed to be what was jokingly referred to as “the highest wicket-taker”, i.e. the one who could declare the highest number of individuals “foreigners”.

Has Supreme Court failed to perform its duties?

When adjudicating upon a person’s citizenship — a determination that can have the drastic and severe result of rendering a human being stateless — only the highest standards of adjudication can ever be morally or ethically justifiable. But in further strengthening an institution — the Foreigners Tribunal — that by design and by practice manifestly exhibits the exact opposite of this principle, the Supreme Court failed to fulfil its duty as the last protector of human rights under the Constitution.

  1. The Court attempted to justify this by observing 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”.
  2. When the stakes are so high, when the consequences entail rendering people stateless, then to allow such departures from the most basic principles of the rule of law is morally grotesque.

Similar case of insensitivity from the past

The Court’s observations in the Kuddus case, and indeed, the manner in which it has conducted the NRC process over the last few months, can be traced back to two judgments delivered in the mid-2000s, known as Sarbananda Sonowal I and II.

In those judgments, relying upon unvetted and unreviewed literature, without any detailed consideration of factual evidence, and in rhetoric more reminiscent of populist demagogues than constitutional courts, the Court declared immigration to be tantamount to “external aggression” upon the country; more specifically, it made the astonishing finding that constitutionally, the burden of proving citizenship would always lie upon the person who was accused of being a non-citizen.

A parliamentary legislation that sought to place the burden upon the state was struck down as being unconstitutional.

What the rhetoric and the holdings of the Sonowal judgments have created is a climate in which the dominant principle is the presumption of non-citizenship.

Conclusion

Apart from the absurdity of imposing such a rule in a country that already has a vast number of marginalised and disenfranchised people, it is this fundamental dehumanisation and devaluation of individuals that has enabled the manner in which the Foreigners Tribunals operate, the many tragedies in the context of the NRC It is clear that if Article 21 of the Constitution, the right to life, is to mean anything at all, this entire jurisprudence must be reconsidered, root and branch