In response to a right-to-information application, the Assam government’s home and political department has stated that none of the state’s Foreigners Tribunals have notified the appointment of their public-information officers. The RTI response, dated 29 October, stated that 300 Foreigners Tribunals have been constituted across the 33 districts of Assam. Of these, only 100 are functioning and others were newly constituted. On 11 September, the home and political department had notified the appointment of 221 members to preside over the 200 new Foreigners Tribunals and to fill in the existing vacancies. Yet, no effort appear to have been taken to appoint any PIOs.
The RTI application was filed by Venkatesh Nayak, a programme coordinator with the non-profit Commonwealth Human Rights Initiative. Foreigners Tribunals form a unique institution in the National Register of Citizens structure—they are quasi-judicial bodies constituted to adjudicate on the citizenship of suspected foreigners and are empowered to adopt their own procedures to do so. This does not, however, exclude them from the ambit of the Right to Information Act, 2005. Yet, by failing to appoint the PIOs, the Assam government has ensured that the tribunals escape the scrutiny and transparency envisioned under the RTI Act.
The RTI Act mandates all public authorities to designate public-information officers and maintain records to ensure that “access to such records is facilitated.” The definition of a public authority under the act includes “any authority or body” constituted “by notification issued or order made by the appropriate government.” Foreigners Tribunals, constituted by the central government in accordance with the Foreigners Tribunals Order of 1964, would clearly fall within this definition.
But Assam’s Foreigners Tribunals have long functioned under a cloud of opacity and the non-appointment of PIOs serves to reinforce this secrecy. A report published by The Caravan in November 2019, detailed how the tribunals function as kangaroo courts in order to persecute Assam’s minorities. The article noted that the presiding tribunal members regularly refuse to provide the suspected illegal immigrants a copy of the inquiry reports on the basis of which their citizenship is under challenge, and that these reports, when they are provided, have revealed significant anomalies. In such circumstances, an RTI application would remain one of the few routes available for individuals facing proceedings before the Foreigners Tribunals to procure the inquiry report and other documents concerning their case.
Nayak discussed the consequences of the Assam government’s response. “Persons declared foreigners or those whose citizenship status is under cloud—whether or not formal proceedings have been launched or completed—have the fundamental right to know matters that affect their well-being,” he said. “Whenever and wherever such persons are denied the right to access information critical to their needs, their only option is to move the Gauhati High Court. This is as good as the option of going to the moon to collect the information because of the obvious hurdles involved. Unfortunately, neither the central nor the state government of Assam have paid attention to these matters till date.”
In addition to putting a spotlight on the arbitrary practices that have marred the Foreigners Tribunals, the RTI could also have served to gain information about the presiding members themselves. The Caravan’s November report had examined the performance-appraisal report of the presiding members as well as minutes of the meetings held by a Gauhati High Court bench monitoring the tribunals. These documents revealed that the members are evaluated not on the merit of their judgments as much as on the number of individuals they declare foreigners.
Abdul Batin Khandekar, the working president of the Brahmaputra Civil Society, an Assam-based organisation involved in field work, advocacy and research related to the NRC, shed light on the perverted incentives operating behind the appointment of the members. “The tribunal members are appointed by the home and political department of Assam,” Khandekar said. “Their job evaluation is carried out on the basis of how many people they declare foreigners. If the number of people declared as foreigners is too few, they run the risk of losing their jobs.” While the Guahati High Court is officially mandated with the responsibility of supervising the work of these Foreigners Tribunals, Khandekar argued that in reality, “it is sitting on the sidelines as a mute spectator.” He added, “If you want these Foreigners Tribunals to perform independently, then they have to be freed from the executive control of the home department.”
If the Foreigners Tribunals had appointed PIOs, it may have been possible to learn additional details of this evaluation process, such as the nature of case disposals of different members and any patterns behind the Assam government’s decisions in the appointments to the tribunals. When I asked Khandekar about the efficacy of RTI in these tribunals, he said that there is no standard-operating procedure to govern the Foreigners Tribunals. “Every FT is following its own arbitrary procedure,” Khandekar said. He added that in his experience, some tribunals were amenable to information sought under RTIs, while others claimed that RTI Act is not applicable to them. Yet, the response Nayak received stated that the PIOs had not been appointed to any of the tribunals. “As I said, there is a major need of streamlining the legal procedure being followed in these FTs,” Khandekar told me. “Even in terms of accountability to RTI, the criteria keep on varying.”
Meanwhile, Nayak also expressed that the failure to appoint PIOs in the Foreigners Tribunals amounted to a violation of the fundamental right to life guaranteed under Article 21 of the Constitution. He referred to two cases that enshrined the right of the individual to be informed on all decisions that affect the quality of life as a part of Article 21. In the case Reliance Petrochemicals vs Proprietors of Indian Express Newspapers, the Supreme Court held:
We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to Know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution.
There is no law or judicial precedent that excludes the Foreigners Tribunals from the scope of this right to know.