In a report titled Designed to Exclude: How India’s courts are allowing foreigners tribunals to render people stateless in Assam, Amnesty finds that “Foreigners Tribunals are vested with extraordinary powers. They do not observe appropriate procedural safeguards that flow from Article 21 of the Constitution of India. On the contrary, each Foreigners Tribunal is allowed to devise and follow its own procedure that may not hold the scrutiny of domestic and international human rights law.”
At present there are 100 FTs in Assam and 200 more are in the pipeline. According to the report FT members might be not only inadequately trained but also under pressure to declare a large number of people as ‘foreigners’. The report says, “The members of the Foreigners Tribunal are recruited on a contractual basis and trained for only four days. The modalities of the training are unknown. The extension of their tenure is dependent on their ‘performance’. In practice, Amnesty International India has found that the Assam government evaluates their performance based on how many people the members declare to be foreigners and accordingly extends their tenure. Members who declare foreigners at a rate of less than 10% stand the risk of being axed.”
Amnesty presents case studies to highlight the arbitrary manner in which the FTs operate and pass orders. The report says, “The reasons given for declaring someone a foreigner are vague and steeped in discrimination. Samina Bibi,6 who Amnesty International India interviewed for this briefing was declared a foreigner by the Foreigners Tribunal. One of the reasons given by the quasi-judicial body was that she could not remember the constituency where her grandfather cast his vote. Abu Bakkar Siddiqui, on the other hand was declared a foreigner because his grandfather’s name was spelled Aper Ali in one document and Afer Ali in another.”
The report goes on to showcase how successive judgments by higher courts have enabled FTs to perpetuate grief and misery. The report says, “The judgments and decisions of the Supreme Court and High Court have severely weakened the separation of powers, consolidating judicial functions with the executive. In many cases, the courts have assumed the domain of the executive and passed orders. As a result, India stands at the brink of a statelessness crisis.” The report then goes on to list examples of such judgments as well as a series of case studies of affected people.
When it comes recommendations, Amnesty wants the government of India to:
– Immediately sign and ratify the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness;
– Recognize the impact of the judgment in Sarbananda Sonowal v. Union of India and acknowledge the scale of the problem of statelessness it is likely to create in Assam, as a first step towards the identification and implementation of comprehensive and effective measures for its eradication;
– Restore citizenship to people where it can be shown that the deprivation of citizenship was done through arbitrary-decision making and constituted a human rights violation;
– In consultation with the human rights organisations, review the existing regime of determining nationality of Indian citizens and make amendments in line with the international and national fair trial standards and other human rights guarantees;
– Reverse the burden of proof on the state, particularly in cases where the person suspected of being a foreigner does not hold any other nationality and stands the risk of becoming stateless;
– Establish an appellate body in processes used to deprive people of their citizenship;
– Take steps to ensure that a person is not deprived of their citizenship due to lack of documentation;
– Provide full reparation to all persons arbitrarily deprived of their citizenship by the Foreigners Tribunals;
– Provide free, efficient and quality legal aid to persons accused of doubtful nationality at the time of both interrogation by the Border Police and proceedings before the Foreigner Tribunal;
– Take active efforts to regularize migration by promoting access to safe and orderly channels.
Amnesty also has a list of recommendations for the government of Assam:
– Review the opinions of the Foreigners Tribunals in their cases to determine whether fair trial standards enshrined in national and international law were followed in determining their nationality and take immediate and concrete steps to restore the nationality of the persons who were arbitrarily deprived of their nationality;
– Carry out a comprehensive census or mapping exercise to identify all those who are stateless and at risk of statelessness, compiling disaggregated data by gender, age, status and location, in cooperation with National Human Rights Commission and other human rights organisation.
Finally, pending repeal of the existing regime, Amnesty wants FTs to:
– Review the recruitment process of Foreigners Tribunal members and ensure they are protected from undue influence of the executive bodies such as Home & Political Department of Assam.
The process must include a written examination and intensive training by the National Judicial Academy;
– Fix the tenure of the members of the Foreigners Tribunals;
– Conduct public hearings in line with human rights standards;
– Publicly make available the orders of Foreigners Tribunal under Section 4 of the Right to Information Act, 2005.