Reforming the Foreigners Tribunals

A 2021 Gauhati High Court judgment is significant because it infused a modicum of procedural fairness into the tribunals process in Assam. But much more is needed

On December 13, 2021, the Gauhati High Court passed an important judgment in a case concerning the functioning of Assam’s “Foreigners Tribunals”. The case involved an individual — Hasina Bhanu — who had been referred to the Foreigners Tribunal by the government, on the suspicion that she was not an Indian citizen. In August 2016, the tribunal found that she was, indeed, an Indian citizen, and issued an opinion in her favour.

There is detailed empirical evidence, collected over many years, which demonstrates that the functioning of the Foreigners Tribunals in Assam falls well short of the basic standards that are expected of institutions taking such far-reaching decisions about citizenship status (Subhendu Ghosh / Hindustan Times)

This, however, was not the end of Hasina Bhanu’s travails. In 2017, another proceeding was initiated against her before the same tribunal — and this time, in March 2021, the tribunal returned a contrary opinion that she was not an Indian citizen, but a foreigner.

Hasina Bhanu carried the case to the high court, where she argued that the second proceeding against her was illegal from the outset. This was because of the basic legal principle of res judicata, according to which, once a court has decided a particular issue between two parties, it cannot be reopened before the same forum. The principle of res judicata is fundamental to the rule of law, not only because of the need for finality in a legal system, but also to prevent the continued harassment of citizens at the hands of the State, or at the hands of other powerful parties.

A two-judge bench of the Gauhati High Court — relying upon recent precedent from the Supreme Court — agreed with Hasina Bhanu’s arguments, and set aside the second proceeding as illegal. While this would appear to be a common-sense outcome, it is, actually, a significant judgment, not least because on a prior occasion, different judges of the Gauhati High Court had refused to set aside such dual proceedings. Back in 2018, the court had handed down a very surprising judgment, where it had held that — formally — Foreigners’ Tribunals do not render “judgments”, but only issue “opinions”, on the basis of which the government decides what to do with the individual concerned. On the basis of this, the high court had then effectively held that even if a tribunal found that a particular person was not a foreigner, that person could still be dragged back before any of Assam’s (many) Foreigners’ Tribunals, and be forced to prove their citizenship all over again — any number of times.

The high court’s reasoning, however, was deeply flawed. First of all, it is difficult to understand why an entire legal paraphernalia around Foreigners’ Tribunals has been set up in Assam, if the purpose was just to issue “opinions” that have no other force or value in law. Second, the Foreigners Tribunals are empowered to return a finding on one of the most important issues concerning an individual: Their citizenship status.

Citizenship has often been described as the “right to have rights”: Not only because many of the Constitution’s guarantees are available only to citizens, but also because — under the Foreigners’ Act — non-citizenship exposes an individual to various forms of punitive State action, such as detention or deportation. In this context, the high court’s holding that the tribunals were issuing mere “opinions” that were not subject to res judicata was essentially a case of having your cake and eating it too: On the one hand, an adverse finding by the tribunal could lead to an individual being deported or detained, while on the other hand, a positive finding by the tribunal provided no respite at all, since at any time the whole process could be started all over again, with no guarantee of the same outcome.

The high court in its 2018 judgment substantiated this gross asymmetry by making various remarks about how India was facing “external aggression”, “demographic threats” and a danger to its “integrity” because of “illegal Bangladeshi immigration”. Regrettably, such loose language recurs frequently in the court’s judgments on these issues, despite the fact that the available data on immigration supports none of these claims. Such judicial rhetoric, however, then becomes a smokescreen to justify depriving people of even their basic rights to procedural fairness, on the mere assertion by State authorities that they are foreigners.

It is in this context, therefore, that the high court’s 2021 judgment comes as a relief, and does infuse a modicum of procedural fairness into the tribunals process in Assam.

It is important to note, however, that this is only the tip of the iceberg: By now, there is detailed empirical evidence, collected over many years, which demonstrates that the functioning of the Foreigners Tribunals in Assam falls well short of the basic standards that are expected of institutions taking such far-reaching decisions about citizenship status.

It has been shown that excessive executive control over appointments and conditions of service, as well as skewed procedures, have created a situation in which tribunals are incentivised to declare individuals as foreigners.

Thus, while the high court’s judgment is welcome, what is needed today is a thoroughgoing review — and reform — of the entire tribunals system, so as to ensure that immigration cases are conducted in a manner that can at least approach — if not accomplish — constitutional justice.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal