Courts of injustice -Prashant Bhushan and Cheryl D'souza

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published Published on Sep 20, 2019   modified Modified on Sep 20, 2019
-The Indian Express

The fate of close to two million people excluded from the NRC in Assam rests with the Foreigners Tribunals. The constitutionality and conduct of these quasi-judicial bodies are questionable

Over 1.9 million people have been excluded from the final National Register of Citizens (NRC) in Assam. The herculean executive exercise, mandated and closely monitored by the Supreme Court, has incurred a staggering expenditure of over Rs 1,200 crore and immeasurable cost in terms of human suffering and death. The buck now passes to the Foreigners Tribunals. The fate of close to two million people who have been excluded from the NRC rests with these one-man tribunals. The constitutionality of these quasi-judicial bodies — from the appointment of its members, arbitrary procedure for its functioning and the nature of its orders — have always been in question. Yet, the numbers of these tribunals are being increased, from the existing 100 to more than 200, to adjudicate upon citizenship claims. The Supreme Court recently ruled that the order of the Foreigners Tribunals will prevail over the NRC order on citizenship and declined to create an appellate forum for appeal from the tribunals.

Foreigners Tribunals were set up by an executive order in 1964 in contravention of Article 323B of the Constitution, which requires the legislature, by law, to provide for adjudication of matters by tribunals. The matters that can be decided by the tribunal, listed within the Article, do not include citizenship. “Judicial experience” was an essential appointment criteria for its members, as stated in the 1964 order. However, the eligibility was relaxed in June 2019 by a notification, calling for applications from retired civil servants and advocates with just seven years of practice, to be appointed on a contractual basis, through an interview conducted by a panel of high court judges. Two hundred and twenty one members were recently appointed without any written test and no transparency in the selection process. The members of the tribunal are selected by the Gauhati High Court, but the appointment is done through the home and political department of the Assam government. The tenure of tribunal members and extension of their terms is based on a review of “performance” conducted by the Gauhati HC.

The minutes of the monitoring committee of the HC reveal that the government is also asked to send its appraisal of tribunal members to the court. The performance report of the government has a special column — “percentage of foreigners declared”. Extension is often given to those who have declared the maximum number of persons as foreigners — the low scorers are “terminated”. Pay and allowances of members is regulated by the government. “Impartiality is the soul of the judiciary, independence is the life blood of the judiciary”, held a Constitution Bench in UOI v R. Gandhi (2010). In the absence of security of tenure and dependence on the government, these tribunals cannot function freely and impartially. There is no mechanism for receiving complaints against members of a tribunal, giving a free hand to such members to adjudicate, most often without any judicial experience, on citizenship — the right to all rights.

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The Indian Express, 20 September, 2019,

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