Case Closed

How Assam’s Foreigners Tribunals, aided by the high court, function like kangaroo courts and persecute its minorities

In the appointment of its presiding members, the manner in which they conduct proceedings, and the criteria employed to evaluate the members’ performance, the processes of the Foreigners Tribunals are clearly unfair towards suspected illegal immigrants. Anupam Nath/AP Photo
06 November, 2019

Anil Das crouched down on the road with his seven-year-old daughter, Archana, outside a Foreigners Tribunal in Guwahati’s Ulubari locality. They had been waiting for over an hour for a hearing to finish. Anil’s wife, Kalpana, was under trial, accused of being an illegal Bangladeshi immigrant, and faced the prospect of detention if she failed to establish her citizenship before the tribunal. Anil said he had never bothered himself with concepts such as citizenship until a few months earlier, when a police official came knocking on his door and warned him: “Get your wife’s citizenship cleared from the tribunal as soon as possible, or else we will throw her in jail.”

Anil worked as a daily-wage labourer in Khetri, a village in the city’s outskirts. When I met him in late September, Anil told me that the family had already made several visits to the tribunal, but he had never been allowed inside. As a result, Anil was clueless about the status of the proceedings. According to him, the Election Commission had previously marked Kalpana a “D-voter”—or “doubtful voter,” a resident of Assam under suspicion of being an illegal immigrant—but the family did not know when it happened. The state’s election commission began marking D-voters during an intensive revision of the electoral roll in 1997. The D-voter cases are referred to a special branch within the Assam Police, known as the Border Police, which is responsible for the detection of suspected foreigners in the state.

The Border Police, in turn, is mandated to conduct an investigation into the cases and then refer them to the Foreigners Tribunals if they suspect that the concerned individuals are illegal immigrants. Kalpana, like several other D-voters in the state, did not get an opportunity from the Border Police to present her case. In fact, Anil told me that she learnt that her citizenship was in question only when they received the tribunal’s notice. The family did not know when they could expect a final determination of Kalpana’s citizenship status.

During the 1997 electoral revision, around 370,000 individuals were marked as doubtful voters, and nearly 200,000 among them were referred to Assam’s Foreigners Tribunals. These tribunals are quasi-judicial bodies that draw their power from the Foreigners Act, 1946 and the Foreigners (Tribunal) Order, 1964. On 30 May 2019, the central government amended the 1964 order to allow state governments to constitute their own Foreigners Tribunals, but at present, they continue to be a body unique to only Assam. As of April 2019, according to the home ministry, the state’s tribunals had declared 117,000 thousand individuals as foreigners.

An examination of Assam’s Foreigners Tribunals raises grave questions about their independence. Whether it’s appointment of their presiding members, or the manner in which they conduct proceedings, or the criterion employed to evaluate the members’ performance, the processes are clearly unfair towards suspected illegal immigrants. For instance, the members prevent lawyers of the suspected immigrants from cross-examining the investigating officers, and until recently, tribunals could declare individuals as foreigners even after their citizenship had been previously upheld by another tribunal.

The state and central governments, too, appear to operate with a similar predisposition against those facing tribunal proceedings. One of the main criteria to evaluate the members is the number of foreigners they have declared. Similarly, the governments appear most inclined to challenge the tribunals’ decisions only when they declared a suspected foreigner an Indian. Moreover, the Gauhati High Court has also passed judgments that have compounded the difficulties for individuals being forced to prove their citizenship. Both the executive and judiciary seem to encourage the officials’ tendency to declare people foreigners—sometimes even when there is evidence to the contrary.

The setting up of Foreigners Tribunals in 1964 was a culmination of several political events in the preceding years. In 1961, the registrar general of census had assessed that Assam had roughly 220,000 thousand infiltrators. The next year, the central government launched a scheme called “Prevention of Infiltration into India of Pakistani Nationals”—or PIP—to push back the infiltrators. To implement the scheme, a separate police wing was established, then called the Assam Police Border Organisation, which later became the Border Police. Between 1961 and 1966, a total of 178,000 thousand people were summarily pushed back without any judicial process. In 1964, Pakistan threatened to bring up the issue before the United Nations. A few months later, the central government passed an executive order that created the framework for Assam’s Foreigners Tribunals.

After a six-year long agitation, which started in 1979, against the influx of foreigners, the centre, the state government and the All Assam Students Union, which led the movement, entered into a tripartite agreement called the Assam Accord, in 1985. The accord fixed 25 March 1971 as the cut-off date for Indian citizenship—any individual who entered the state after the date would be deemed an illegal immigrant. Following the accord, the Citizenship Act, 1955 was amended to insert Section 6A, which introduced the cut-off date to identify Assam’s Indian citizens.

The National Register of Citizens, published on 31 August this year, is a long-awaited implementation of the accord. A list of citizens was first published in 1951, but the updated list identifies citizens based on the revised cut-off date. The updation project gained significant momentum in December 2014, when a Supreme Court bench comprising Rohinton Nariman and Ranjan Gogoi passed a detailed judgment issuing a timeframe to complete the project. The final NRC denied Indian citizenship to nearly two million people, who will have 120 days to appeal their exclusion from the register. In the days to come, Assam’s Foreigners Tribunals will determine their citizenship.

The concerns surrounding the functioning of the tribunals begin at the very first stage of the appointment of members to the body. The Foreigners (Tribunal) Order, 1964 empowers the central government to appoint the presiding members of the tribunals and determine the terms of their contract, including the members’ salaries, the duration of their contract, and the criteria for extending their services. Meanwhile, the Foreigners Act, 1946 empowers the central government to delegate its power, which the centre has accordingly ceded to the state government. As a result, unlike judges of the lower and higher judiciary, tribunal members are appointed on a contract basis by Assam’s home and political department, authorised by the ministry of home affairs. The renewal of their contracts, too, is determined by the state and central governments—in effect, granting the executive significant power and control over the judicial function carried out by the tribunals and their members.

Following the Supreme Court’s December 2014 judgment, the state government had appointed 64 new members to preside over Assam’s Foreigners Tribunals, bringing the total number in the state to hundred. In June 2019, in anticipation of the number of citizenship cases that would arise following the publication of the NRC, the Gauhati High Court issued a notification for the appointment of 221 additional members to be appointed to 200 new Foreigners Tribunals, and to fill in the existing vacancies. The notification revised the eligibility criteria: it reduced the minimum-age requirements for advocates from 45 to 35, and the minimum years of practice from ten years to seven years. It also permitted retired civil servants with judicial experience, not below the level of secretary or additional secretary, to apply.

Fears about the executive control over the tribunals abound. In September this year, during a two-day event called “People’s Tribunal on Contested Citizenship in Assam,” a jury comprising former judges of the higher judiciary, activists and academics heard submissions by senior advocates and individuals affected by the NRC process. The jury included the retired Supreme Court judges Madan Lokur and Kurian Joseph, and the retired Delhi High Court chief justice AP Shah, among others. In a concluding note prepared by the jury after two days of hearings, they wrote: “Tribunals do not function independently and are not free from executive influence. Tenure and salaries are decided by the government, keeping the members under the supervision and control of the appointing authority.”

At the event, the testimonies before the jury also raised questions about the tribunals’ selective approach towards accepting evidence. “The Foreigners Tribunal selectively applies certain sections of Indian evidence in a very stringent manner,” Sajjad Hassan, a PhD scholar in development studies who is a convener of an NGO called Citizen against Hate and was one of the speakers at the People’s Tribunal, told me. “Many citizens, mostly women, despite being children of Indian citizens, are being declared as foreigners because of the strict application of the Evidence Act.” Hassan added, “The deposition of family members wherein they categorically states that the proceedee is their daughter or sister is rarely taken into consideration. But a minor contradiction could prove fatal in proving citizenship.”

Indeed, the proceedings held by the tribunals inspire little confidence with respect to their independence. The 1964 order empowers the tribunals with the power to determine their own procedure—a provision that has made room for various absurdities in the manner that the tribunal members conduct hearings. For instance, Anil is hardly the only individual to be forced to wait outside. The tribunals seemed to operate under a rule that nobody apart from the suspected immigrants facing proceedings would be allowed inside the building. During my visits to the five Foreigners Tribunals in Guwahati, in September this year, the police officials stationed outside prevented me from entering any of them. While the Code of Civil Procedure and the Code of Criminal Procedure both mandate that a court is open to the public, it is unclear whether the tribunals can legally close its proceedings from the public.

Nilay Dutta, the advocate general of Arunachal Pradesh and a senior advocate in the Gauhati High Court, told me that the tribunals are open to the public and the members would be acting against the law if they were preventing people from entering. Yet, on the ground, it was an accepted fact among lawyers who practised in the tribunals that they were not open to the public. At the tribunal in Ulubari, one of the police officials stopped me at the entrance and said, “We have instructions from our seniors not to allow journalists into the premises.” He added, “In fact, nobody else except the one who is facing charges is allowed inside. We can let their relatives go if their advocates accompany.”

I received similar warnings at Guwahati’s four other tribunals, all located in the city’s Hidayatpur locality. Unlike the tribunal at Ulubari, the others did not have their own buildings and the premises. All four were functioning out of the ground floors of two adjacent residential apartments in Hidayatpur. A lawyer whom I met outside one of the buildings told me that “the space inside is so small” that it was difficult to conduct cross examinations.

However, the opportunity to cross-examine a witness itself appeared to be a luxury that few lawyers enjoyed. I spoke to over two dozen lawyers practising in the tribunals, and none of them had ever gotten the opportunity to cross-examine the investigating officer of the Border Police who referred a suspected individual’s case to the tribunal. “They will say because the onus is on the suspect to prove their citizenship, there was no need to call the investigating officer,” a criminal lawyer practising in district courts told me on the condition of anonymity. “In over a dozen cases, I’ve never been able to cross-examine an investigating officer.”

The opportunity to cross-examine the investigating officers is crucial because the Border Police is expected to conduct an investigation before referring cases to the Foreigners Tribunals, but according to lawyers and activists in Assam, it is well known that this is never conducted. Yet, even this is often difficult to prove in the tribunal because the members regularly refuse to provide the suspected immigrants a copy of the inquiry report on the basis of which their citizenship is under question. “In some cases, where we’re shown the inquiry report, and we would sometimes find egregious anomalies in them, the members won’t let us cross examine the investigating officer,” the criminal lawyer said.

Indeed, arbitrary practices almost appear to be the rule rather than the exception at Assam’s Foreigners Tribunals. Abdul Rahman Sikdar, a senior advocate in the Gauhati High Court who has represented several suspected foreigners and written a book on the functioning of the tribunals, told me that the tribunal members often “conduct cases like the prosecution instead of an impartial judge.” He said the members sometimes themselves recorded statements that contradicted the submitted documents, because of which “entire evidentiary values are discarded and individuals are declared foreigners.” A Gauhati High Court bench monitoring the state’s Foreigners Tribunals has also noted that government pleaders were yet to be appointed to several tribunals, but that does not appear to have hindered their functioning.

In fact, multiple lawyers recounted that even after overcoming all the obstacles of the tribunal proceedings, the members would dismiss strong evidence in support of the individuals facing trials of their citizenship. They all believed that the arbitrary functioning of the tribunals led to a situation where the chances of proving an individual’s citizenship were extremely low.

For instance, the tribunals do not admit copies of public documents as evidence until it is certified by the issuing authority. Such a certification often requires at least two weeks, and the concerned individuals also complain of harassment at the hands of the local issuing authority. Several lawyers told me that members of the tribunals often dismissed genuine evidence on technical grounds, disregarding its value. “Isn’t one’s voter ID card a public document?” a lawyer who had worked on over twenty cases before the tribunals, said in frustration. “It’s just right there on the Election Commission website. Why, then, don’t the members accept it until it’s certified by the issuing authority, and why should the issuing authority come before the tribunal to vouch the authenticity of a public document?”

Several lawyers believed that the tribunal members were often aware that the police had botched up an investigation or that a suspected immigrant’s documents were genuine, but that they intentionally allowed the case to continue because of government pressure to declare foreigners. Their suspicions were not unfounded.

In 2017, nineteen former members of Assam’s Foreigners Tribunals appealed against the government’s decision not to extend their contracts when it expired, at the end of two years of service. The former members contended that the termination of their contracts would put a stigma on their future career. In response, the Assam government submitted an affidavit stating that the members’ contracts had not been renewed due to their “poor” and “unsatisfactory” performance. The government also attached a performance-appraisal report of the tribunals members.

The report is telling of the priorities of the state government in matters of appointments—specifically, its focus on the percentage of foreigners declared. The appraisal report provided statistics about the performance by 72 tribunal members, which comprised 63 former advocates and nine former district judges. The report revealed the number and percentage of cases disposed by each member, the number and percentage of declared foreigners, the government’s opinion of the member, and whether the member should be retained or terminated. It is clear from the report that the members who had declared a greater number of foreigners were more likely to be retained of their services in contrast to those who had declared fewer foreigners.

In the column titled “General view of the Govt. upon the Member,” 18 of the 72 listed members were deemed, “Not satisfactory.” All barring one of these 18 members had declared suspected immigrants as foreigners in less than ten percent of their cases. Among the remaining members, only six had declared less than ten percent foreigners—four of them were formerly judges, and five of them received the remark that they, “Need to improve.” The sixth had declared no foreigners, but while the comment for most members with a high proportion of declared foreigners stated “good,” the member with no declared foreigners had the comment, “His performance in Dhing was good.” The Dhing town is situated in Assam’s Nagaon district. The member was posted in Kamrup district.

Perhaps a more telling aspect of the state government’s priorities was its apparent disregard for the percentage of disposed cases. Several names recommended for termination of contract had a decent or high rate of disposal—two of them had disposed over forty percent of their cases, among only eight others who had achieved the same. Yet, members with a far lower disposal rate had been retained—ostensibly because of the high percentage of individuals they had declared foreigners. For instance, Karthik Roy Choudhary, one of the members whose contract was recommended for termination, had disposed 26 percent of his cases but declared only one percent of them as foreigners. In contrast, Narayan Kumar Nath, one of the several retained members, had a disposal rate of just 15 percent, but he had declared foreigners in 34 percent of his cases.

The court had upheld the termination and accepted that the argument that government’s action was not vindictive but based on a performance assessment. According to Sikdar, “That day, a message was sent to the members, that if you want to keep the job, you must declare more people as foreigners.”

The performance-appraisal report is not the only indication of the executive’s focus on the percentage of declared foreigners. In its December 2014 judgment, the Supreme Court requested the Gauhati High Court chief justice to constitute a special bench that would sit at least once a month to oversee the functioning of the Foreigners Tribunals. Accordingly, in February 2015, the Gauhati High Court appointed the judge BK Sharma to preside over the special bench, who was succeeded by Ujjal Bhuyan in January 2016. While he presided over the special bench, Bhuyan held several meetings to monitor the functioning of the Foreigners Tribunals. These monitoring meetings included registrars of the Gauhati High Court, the director general of the Border Police, and senior bureaucrats from the state’s home and political department. I gained access to the minutes of four meetings, held between July 2016 and May 2017, which demonstrate the executive and the judiciary’s priorities in matters concerning the Foreigners Tribunals.

The minutes showed that the monitoring committee regularly updated the bench and the government on the number of cases heard by each member, the cases pending before them and infrastructural requirements at the tribunals, among other issues. At the monitoring meetings, the attendees also assessed the merit of the orders passed by the tribunals’ members. Pertinently, the minutes of a meeting held in October 2016 note that the state government had constituted district-level committees to “scrutinise the opinions of the Foreigners Tribunals answered in favour of the proceedees.” The committees would only question the wisdom of members when they had ruled in favour of suspected immigrants. The district-level committees would submit their opinions to a state-level committee, which, in turn, would make its recommendations to Assam’s home and political department. The decisions that declared suspected immigrants as foreigners do not appear to have invited any such scrutiny.

The monitoring committee did not stop there. They encouraged the district-level committees to conduct the scrutiny of the opinions even if all its members were not present. These members included the superintendents and deputy commissioners of the Border Police, among other political nominees, according to Sikdar. “Since the committee consisted of many members, non-availability of many members ought not to be a deterrent for the committee so constituted for scrutinising the opinions in favor of the proceedees,” the minutes recorded. Moreover, it noted, “The superintendents of police should scrutinise the opinions and with their comments send them to the commissioner & secretary to the government of Assam.”

The minutes also indicated that the police officials were initially apprehensive of scrutinising the members’ orders. Taking note of this, the committee suggested that the special director general of the Border Police should “apprise the Deputy Commissioners and Superintendents of Police about their role in assessing the opinions and forwarding their comments to the government.” On the basis of the comments it received, the minutes noted that Assam’s home and political department would consult the Border Police and “thereafter take a decision whether the opinions of the Foreigners Tribunals are to be accepted or challenged.”

According to Sikdar, the setting up of the district-level committee had “eroded fair adjudication” in the Foreigners Tribunals. He discussed the issue in his book, Quest for Justice in the Foreigners’ Cases. “How the same referral authority can be empowered to verify the correctness of the opinion of the tribunal?” Sikdar wrote. “The referral authority would obviously not like their investigation against a suspected foreigner to be turned down by the tribunals,” he told me. “So they would give an adverse recommendation to the government that will amount to a summary dismissal of a judicial opinion, and not due process.”

The government authorities involved in this determination of whether to challenge the Foreigners Tribunals orders before the Gauhati High Court are also involved in the evaluation of the members’ performance to determine whether their contracts ought to be renewed. In such a context, the mechanisms introduced by the executive and the judiciary, such as the district-level committees, put further pressure on the members to declare more individuals as foreigners.

In February 2019, the high-court monitoring bench noted that the state-level committee had recommended challenging the tribunals’ orders before the high court in 438 cases, whereas the Border Police had recommended challenges to 700 opinions. Of the 438 recommended cases, the state government had filed writ petitions challenging the tribunals’ orders in 24 cases.

The bench, presided by Bhuyan at the time, inquired why more petitions had not been filed. The state government’s lawyer submitted that the home ministry had not yet approved the challenges. Following further submissions by the arguing counsels, the court ruled that the state government did not require the centre’s approval because the former had been delegated with the necessary powers to challenge the tribunals’ orders. Once again, the judiciary seemed to be geared towards declaring the highest possible number of foreigners.

The minutes reveal another critical concern about the functioning of the Foreigners Tribunals—an apparent unwillingness to address complaints against the presiding members. Over the period covered across the four meetings, the minutes reflected an improvement in terms of the number of cases disposed and the infrastructure at the tribunals. Yet, the issue of complaints against the tribunal members, mentioned in three of the four minutes of meetings, appeared to remain unaddressed.

The minutes of the meeting held on 16 July 2016 recorded that the committee discussed the issue of “Complaints against Members of Foreigners Tribunals / Representations by the Members.” It noted, “Considering the number of complaints received against some of the members of the foreigners tribunal regarding their functioning, it is decided the government of Assam in the Home and Political Department will verify the genuineness of the complaints and take appropriate action, if considered necessary.” It further stated that the decision taken by the government on the complaints would be brought to the notice of the monitoring bench.

In a subsequent meeting, on 5 October, the minutes suggested the three preceding months, the complaints had only been forwarded to the respective deputy commissioners for inquiry. When the members met again, in December that year, they did not discuss the issue at all, according to the minutes.

Five months later, on 22 May 2017, the committee met again. The minutes noted that the home and political department had prepared a list of complaints against the members. The minutes do not state the nature of the complaints. According to the minutes, the only recorded decision after the meeting in response to these complaints was a request that the state government “duly consider the complaints at the time of relocation of the Members, Foreigners Tribunals.” The officials did not recommend any punitive or administrative actions against the concerned members.

Over two years after the recommendation, there did not appear to have been any resolution of the issue. On 24 September 2019, in the last order passed by Bhuyan as part of the monitoring bench, the judiciary and executive were yet to set up an “institutional mechanism to deal with complaints made against Members of Foreigners Tribunals.” The order noted, “There is a general consensus that Secretary to the Govt. of Assam, Home and Political Department, and Registrar (Judl), Gauhati High Court should comprise a Committee to deal with such complaints. This committee will meet within the next month and lay down procedural guidelines as to how to deal with such complaints.”

The monitoring bench next heard the case on 29 October 2019, now presided by the judge Suman Shyam. The court granted three more weeks to the state government “for finalizing the modalities” of the mechanism to deal with complaints. The court further stated: “This Court has noticed that there is no mechanism to look into the problems faced by the Members of the Foreigners Tribunal nor is there any standard procedure in place so as to apprise this Court on the day to day functioning of the Foreigners Tribunals.” It recommended the initiation of a “consultative process so as to indicate what procedure would be appropriate in this regard.” The case is listed for its next hearing on 26 November.

Yet another serious limitation in the structure of the Foreigners Tribunals is that neither the 1946 act nor the 1964 order provides any right to appeal. As a result, any challenge to the tribunals orders must lie in the form of a writ petition, which leads to further problems of its own. The writ jurisdiction, unlike an appeal jurisdiction, does not allow the high court to consider all the evidence to examine the case on its merits. Instead, the court is restricted to determining the legality of the tribunal’s order without considering the evidence and arguments afresh. This absence of a statutory right to appeal has been raised in the form of a petition before the Supreme Court. But the court dismissed the petition ruling that this was a legislative issue, beyond the scope of its powers.

Even under its writ jurisdiction, however, the Gauhati High Court has not always held the Foreigners Tribunals accountable—rather, it has created additional avenues for further persecution and prosecution of suspected foreigners. Several lawyers told me that many high court judges overlooked the arbitrariness in the functioning of the tribunals. They said that the judges were even complicit in the process, because they often upheld the tribunals’ orders, which had grave consequences for the thousands of individuals whose citizenship was under question.

Key among these has been a high court ruling that the principle of res judicata—a legal maxim that translates to “judged matter”—does not apply to the Foreigners Tribunals. The principle of res judicata arises from Section 11 of the Code of Civil Procedure, and simply put, it states that once a court has already passed an order on a particular matter, another court cannot making a ruling on the same issue. In April 2018, in an order written by Bhuyan, a two-judge bench of the Gauhati High Court ruled that a Foreigners Tribunal can preside over a case of a suspected immigrant even after another tribunal has declared him or her to be an Indian citizen.

The high court was ruling on cases by at least twenty one petitioners who contended that the Border Police were referring cases to the tribunals even after other tribunals had held in their favour. Bhuyan, writing on behalf of himself and Ajit Borthakur, first noted that the Supreme Court has held that res judicata would apply to tribunals adjudicating industrial disputes. He wrote, “… the principle underlying Section 11 has been extended to other judicial and quasi judicial proceedings on the ground of public policy that there should be conclusiveness in adjudication though the rule by itself does not createany right or interest of the parties.” Bhuyan then relied on the laws governing Assam’s tribunals to hold that a member cannot be identified as a judge who passes an order.

He noted that a tribunal’s findings, unlike that of a court, are in the nature of an opinion, while “the ultimate decision rests with the Central Government.” Therefore, the court held, “A negative opinion rendered by a Foreigners Tribunal opining that the procedee is not a foreigner is not a judgment and cannot bind the Central Government or the delegated authority, i.e., the jurisdictional Superintendent of Police (Border) for all times to come and certainly cannot debar them from seeking a fresh opinion, if circumstances so warrant.”

Bhuyan further noted that “Assam is facing external aggression and security and integrity of the nation has been threatened on account of large scale illegal migration of foreigners from Bangladesh into Assam.” In this light, he held, applying the principle of res judicata to the Foreigners Tribunals proceedings would be self-defeating and against the overarching public policy, i.e., to ensure national security and to protect the integrity of the nation.”

Since then, the tribunals have heard hundreds of cases that had already been decided, AK Ahmad, who was representing one of the petitioners in the high court, told me. “It just didn’t make sense,” he said. Ahmad briefly recounted his client’s case. “The lady was declared an Indian only few months ago and then the Border Police of another district had referred a foreigner case against her in the same tribunal,” he said. “And she has now been declared a foreigner. I kept telling the member she was already declared an Indian but I had to produce the same evidence and make the same argument. However, this time the same tribunal declared her a foreigner.”

In May 2019, the Supreme Court held that the principle of res judicata applied to tribunals, but the order was passed in a different context. The apex court was deciding whether a person whose name appeared in the National Register of Citizens, but subsequently declared a foreigner by a tribunal, would be considered an Indian or not. The court held that the tribunal’s order will be final and accordingly, the individual’s name would be removed from the NRC. The order, however, did not deal with the question of whether tribunals can hear the same individual’s case more than once.

Sauradeep Dey, who works with the Human Rights Law Network—a legal non-profit that has been taking up the cases of suspected immigrants pro bono—told me that after the apex court’s judgment, he had not come across any high court case in which individuals had twice faced proceedings before the Foreigners Tribunals. Dey believed that the high court would no longer entertain such cases, but was not sure whether the tribunals were complying with the Supreme Court order. According to Ahmad, the tribunals were not enforcing the apex court’s order. Sikdar told me that there was a contradiction in the high court and the Supreme Court’s interpretation of the principle of res judicata, and that the tribunals were still hearing cases where the individuals had already been declared Indians.

In February 2017, the Gauhati High Court pronounced a judgment—once again, written by Bhuyan as part of a two-judge bench—that put the citizenship of nearly forty-two lakh individuals at risk. The ruling concerned the validity of a certificate issued by secretaries of village panchayats as a supporting document to establish an individual’s linkage to their ancestors who were present in Assam before the March 1971 cut-off date. During the hearing, Prateek Hajela, who was then the NRC state coordinator in Assam, submitted to the court that the certificate is permitted as a supporting document and that it is intended to support the residential status of married women, who normally shift to a different location post marriage. He stated that a total of 41,94,733 certificates had been issued by village panchayat secretaries.

Bhuyan interpreted the number of certificates issued in a different light. He first noted that the Supreme Court has observed in its judgments that the state of Assam is facing “external aggression” and “internal disturbance” on account of the influx of Bangladeshi immigrants. Bhuyan then referred to the permissibility of village-panchayat certificates, and asked, “Is it really in the public interest or is it in the national interest?” Commenting on Hajela’s submission that over four million residents had relied on such certificates in their NRC applications, Bhuyan added, “The figure is not only alarming but also has an uncanny resemblance to the estimated number of foreigners as per statement of Union Minister of State for Home Affairs made before the Parliament and referred to by the Supreme Court.”

The court held that the issuance of such certificates was contrary to the rules governing citizenship in Assam, and that it “cannot be said to be in the national interest.” Bhuyan then went one step further to examine the power of a village-panchayat secretary to issue such a certificate. The judgment noted that the certificate amounted to a “private document” under the Indian Evidence Act, and had “no statutory sanctity.” Bhuyan further wrote that any village-panchayat secretary “would run the risk of issuing such certificate to a person who has been declared to be a foreigner.” He added, “Such an act may be construed to be an act of harbouring an illegal migrant, which may amount to a gross misconduct exposing himself to departmental action besides attracting penal consequences.”

In December 2017, the Supreme Court set aside the high court’s order and held that the certificates could be used as a linkage document. The apex court noted that the high court’s ruling that such a certificate is a private document was “legally fragile.” The court emphasised, however, that the panchayat certificate could not be used as a proof of citizenship, but only as a linkage document that would be verified at two stages—on the authenticity of the certificate and that of its contents.

A subsequent Gauhati High Court judgment, pronounced by another two-judge bench led by Bhuyan, appeared to have imposed additional requirements for the validity of the panchayat certificate. In May 2018, among other grounds cited to dismiss an individual’s challenge against an adverse order by a Foreigners Tribunal, Bhuyan wrote that “this certificate does not even concern a married woman.” He also noted that “the author of the certificate did not prove the said certificate as well as the contents thereof by deposing before the Tribunal.” However, the Supreme Court’s order had imposed no such restrictions. In fact, the apex court only referred to a “thorough search and probe” that included “giving an opportunity to the holder of the certificate.” Similarly, the court did not restrict the permissibility of such certificate for women.

To understand these questionable practices of Assam’s Foreigners Tribunals and the Gauhati High Court, it is necessary to place their functioning within a political context. Sikdar believed that the entire process of determining citizenship had become biased against the state’s religious minorities. Abdul Mannan, a former professor of statistics at the Guwahati University, wrote an authoritative book on the state’s immigration crisis titled, Infiltration: Genesis of Assam Movement, in 2017. He wrote, “The very definition of who is an illegal foreigner, has undergone several changes, the reason being the ever changing socio political domain of the state; wherein the dominant political ideology of the time has influenced how the issues is looked upon.”

Mannan’s explanation strikes at the heart of the foreigners issue in Assam. The NRC updation process, the setting up Foreigners Tribunals, and the movement against illegal migrants has all been ongoing in Assam for decades. The legal framework for the prevailing quasi-judicial and executive mechanisms were laid by the Congress party, during the tenure of Tarun Gogoi, who served as Assam’s chief minister from 2001 to 2016. In fact, the setting up of tribunals to identify foreigners had gained significant steam much earlier during the Assam agitation, which led to the enactment of the Illegal Migrants (Determination by Tribunals) Act in 1983.

In 2005, the Supreme Court struck down the act on a petition by the BJP leader Sarbananda Sonowal. The court ruled that the procedures laid down in the act made it too difficult to identify any foreigners and defeated the purpose of the legislation. A significant change from the tribunals operating under the IMDT Act to those under the Foreigners Act has been with regard to the burden of proof in the proceedings. In the former, the state had the onus to prove that an individual was a foreigner, but under the latter, the suspected immigrants must establish themselves to be Indian citizens.

In the 2005 Sonowal judgment, the court heavily relied on a 1998 report by SK Sinha, who was the governor of Assam at the time. The report emphasised that there was large-scale Muslim migration into the state from Bangladesh. “As a result of population movement from Bangladesh, the spectre looms large of the indigenous people of Assam being reduced to a minority in their home State,” Sinha’s report noted. Relying on Sinha’s report, the Supreme Court held, “There can be no manner of doubt that the State of Assam is facing ‘external aggression and internal disturbance’ on account of large scale illegal migration of Bangladeshi nationals.” It is this judgment that Bhuyan quoted time and again in his judgments.

However, there is no official figure about the number of foreigners in Assam. In his book, Mannan debunked the alarmist numbers stated by Sinha, who had claimed that 6,000 Bangladeshis entered the state every day. As Mannan pointed out, the report’s estimates would mean that the state held four crore Bangladeshis—a number significantly higher than the entire population of Assam. In fact, a white paper on illegal immigrants, released by the Tarun Gogoi government in 2012, stated, “It is difficult to give a precise estimate of illegal immigrants/foreigners in Assam.”

Two political developments contributed to the detection of suspected foreigners with renewed determination—the BJP government coming to power at the centre and the state, in 2014 and 2016, respectively. In 2016, the BJP fought the election on a campaign that it will deport all the Bangladeshis from the state and seal the Indo-Bangla border. After the party came to power, Sonowal, as the newly-appointed chief minister of Assam, met the superintendents, district collectors and deputy commissioners and asked them to expedite the process of detection of foreigners and preparation of the NRC.

The Sonowal government has spent around Rs 1,600 crore in the NRC updation process. Ahead of the publication of the final register, it began setting up 200 new Foreigners Tribunals, taking the total number in the state to 300, and sanctioned the construction of another 200 in the future. The first-ever detention centre in the country is currently under construction in Assam’s Goalpara district. The state government has proposed constructing ten more centres.

Amid all of this, Assam’s suspected immigrants suffer the indignity of its executive and judicial determination to declare foreigners. In May 2016, one Romila Khatun was declared a foreigner by a tribunal in Kamrup district for failing to establish the link to her father, in order to demonstrate her Indian citizenship. She petitioned the high court to quash the tribunal’s order. In June 2018, the court upheld the tribunal’s order. Bhuyan presided over the two-judge bench and authored the judgment.

The high court dismissed the panchayat certificate submitted by Khatun because it carried the state emblem of India. This, according to the court, was a misuse of the emblem under the prevailing law. “Under the State Emblem of India (Regulation of Use) Rules, 2007, Gaonbura is not authorized to use the state emblem of india in any manner,” the court held, referring to the panchayat official who had issued the certificate. Moreover, the court ruled out the certificate even though the official, Ramesh Ali, had personally deposed before the tribunal to vouch for the authenticity of the document.

Among other documents that were rejected by the court, Khatun had provided an affidavit from an elderly man from her village, one Abdus Sattar. The court discredited Sattar’s evidence in favor of Khatun too. Bhuyan wrote that Sattar “did not mention as to how he was related to the petitioner.” He added, “Only thing he mentioned was that he was an aged person and a senior citizen of Kukarpar village and that he knew the father and mother of the petitioner. But in the introductory paragraph, he disclosed his age as 56 years. At the age of 56 years, a person is not considered to be a senior citizen in India.”