It is crucial to reform foreigners’ tribunals

There are several outstanding issues with the regime of foreigners’ tribunals: Extens-ive State control over members, dubious use of evidence, and declaring thousands of people foreigners ex parte

Imagine this: You are arrested by the border police and told that there is a well-founded belief that you are not an Indian citizen, but an illegal immigrant. You are dragged before a foreigners’ tribunal to prove your citizenship. Here, the burden is on you to satisfy the tribunal that you are Indian; the smallest discrepancies in documents could lead to you losing your case, as it is a well-known fact that adjudicating officers at the tribunals are given incentives, depending on how many individuals they can declare to be foreigners.

D (doubtful) voters waiting outside the Foreigners Tribunal Office, Goalpara, Assam, 2016 (Hindustan Times)

But, despite all the odds against you, you manage to satisfy the tribunal that you are Indian. You are released, and you set off on your way home in relief, hoping to carry on with your life. One month later, however, there is a knock on your door. The police are back. You are rearrested and, this time, taken to a different tribunal. Your prior ordeal has no bearing upon these proceedings: You now have to prove your citizenship again.

While this may sound like a scene from a dystopic novel, until recently, this was the state of affairs under the foreigners’ tribunals in Assam. In law, there is a principle known as res judicata, which (barring exceptional circumstances) prevents anyone from reopening an issue that has been decided by a court. The purpose behind res judicata is to prevent the continuous harassment of ordinary people by powerful authorities, such as the State. The principle is thus one of the most important legal principles that protects individuals against State impunity.

With respect to the foreigners’ tribunals, however, this principle was given a go-by thanks to a 2018 judgment of the Gauhati high court (HC). In this judgment, the HC noted that technically, foreigners’ tribunals did not render judgments, but opinions, about whether or not a specific individual was a foreigner or an Indian citizen. It was then for the government to decide — based on this opinion — what action to take (such as, for example, detention or deportation of a “declared foreigner”). For this reason, the HC held that foreigners’ tribunals were not bound by the principle of res judicata. One, two, many tribunals could declare you to be an Indian citizen. Still, at any given time, another tribunal — on the instance of the border police — could disagree, declare you a foreigner, and put you under immediate risk of deportation or detention.

This asymmetrical state of affairs was worsened by a Supreme Court (SC) judgment in 2019, which held that foreigners’ tribunal opinions were binding on everyone, including for the preparation of the National Register of Citizens (NRC). Thus, one judgment (of the Assam HC) devalued foreigners’ tribunals orders to give the State multiple bites of the cherry, while another judgment (of the SC) placed a very high value upon the same orders, holding that a finding of non-citizenship would automatically exclude an individual from a place in the NRC.

Fortunately, in a recent judgment delivered on April 28, the Gauhati HC has resolved this contradiction. In the new judgment — Sital Mandal vs Union of India — justice Kotiswar Singh correctly observes that this state of affairs cannot be allowed to stand. Following the SC judgment, he holds that once a foreigners’ tribunal finds that a person is an Indian citizen, that finding can no longer be reopened or altered by another foreigners’ tribunal. Thus, it is no longer open to the State to keep asking the same question until it finally gets the answer that it wants.

Of particular importance is justice Singh’s rejection of the State’s argument that India’s national security requires abandoning the principle of res judicata. As we have seen in recent times, government lawyers regularly invoke the words national security to justify the abandonment of all principles of the rule of law, and allow complete State impunity. However, justice Singh correctly notes that there is no hierarchy between fundamental principles; res judicata plays a crucial role in maintaining a rule-of-law based system, and cannot be abandoned upon the mere recitation of the words national security.

This judgment does not resolve the multiple outstanding issues with the regime of foreigners’ tribunals, which are increasingly coming to light. These include, for example, extensive government control over tribunal members, dubious use of evidence, exclusion of oral evidence, and declaring thousands of people foreigners ex parte, ie, without a hearing. A thoroughgoing reform of the foreigners’ tribunals is an urgent need; for all that, however, this judgment is significant for restoring a modicum of fairness to the existing — flawed — process.

Gautam Bhatia is a Delhi-based advocate The views expressed are personal