Assam decides tribunal member’s term on rate of declaring foreigners: Amnesty

Assam’s government decides the tenure of a Foreigners’ Tribunal (FT) member, a designation similar to a judge in the case of this quasi-judicial body, based on how many foreigners he or she declares, Amnesty International said, basing its assertion on the performance appraisal data submitted by the State in an affidavit filed in court.

However, there appear to be aberrations in some cases to the policy of assessing the performance of a member by the percentage of disposal of cases and the rate of declaring alleged non-citizens as foreigners, as per the government data.

Assam currently has 100 FTs. The State has completed the process of setting up 200 more FTs, specifically to handle the cases of 19.06 lakh people left out of the updated National Register of Citizens (NRC) that was published on August 31, 2019.

In a report titled ‘Designed to Exclude’, the global human rights organisation had asserted that the Supreme Court and Gauhati High Court had enabled the FTs to create a statelessness crisis in Assam.

In a post on Twitter on Thursday, Aakar Patel, former honorary managing trustee of Amnesty India, asserted that the tribunals were far from fair. “For those who think NRC process is fair. Tribunals declaring people foreigner in Assam are run by employees on 2-year contracts. BJP only extends contracts of those who mark max people foreigner... World should intervene,” he tweeted.

In its report published in September, Amnesty had called for a review of the existing legislative regime governing the determination of nationality in India. “The FTs that determine the paramount right to citizenship in Assam are often dismissive, use derogatory language, control their own procedures and apply them in arbitrary ways,” the rights body had observed.

In an affidavit submitted to the Gauhati HC, the State government had provided a chart on the performance appraisal of newly-elected members as on April 30, 2017, at the end of their two-year tenure.

In the case of the 21 members of FTs based in four Muslim-dominated districts — Barpeta, Bongaigaon, Dhubri and Goalpara — eight, whose foreigner-declaring rate was less than 10% of total cases disposed of, faced a recommendation “may be terminated”. The best among the ‘under-performers’ managed 7.67%.

Retention was recommended for eight members whose performance ranged from 15.7% to 74.9%. The advise for the officials heading the remaining five FTs in these districts was “may be retained with warning”.

But there were aberrations in the case of two judges who declared 26.9% and 41.7% of the cases they handled as foreigners. They were placed in the retention ‘with warning’ category despite outdoing four judges with a “good” rating.

According to Assam’s Home Department, there were initially 11 Illegal Migrant Determination Tribunals (IMDT). These were converted in 2005 to FTs after the apex court scrapped the Illegal Migrants (Determination by Tribunals) Act, 1983. The State government established another 21 FTs that year. Four more were added in 2009 and the remaining 64 were established in 2014 for expediting the disposal of cases that were piling up in the FTs.

Each FT member is appointed under the Foreigners Tribunal Act, 1941, and Foreigners Tribunal Order, 1984, as per the guidelines issued by the government from time to time. A member can be a retired judicial officer of the Assam Judicial Service, a retired civil servant not below the rank of secretary and additional secretary with judicial experience, or a practising advocate not below the age of 35 years and with at least seven years of practice.

A member is also required to have a fair knowledge of the official languages of Assam (Assamese, Bengali, Bodo and English) as well as be conversant with the historical background to the foreigners’ issue.

The Gauhati HC had on June 10 sought applications for preparing a panel of 221 FT members, saying that the appointment of each member for a year may be extended on a “need basis” subject to their attainment of 67 years.

A retired judge or civil servant appointed as member at an FT is entitled to a pay package similar to what he or she drew at the time of superannuation besides allowances, while the current salary for an advocate who may be selected for the job is ₹85,000 per month plus allowances.

The credibility of the FTs began to be questioned after a member of an FT in central Assam’s Morigaon district observed in August 2017 that foreigners’ cases had assumed the form of “an industry as each and every person involved” with such cases “trying to mint money by any means”.

The Morigaon FT also noted that the “unfair practices involved turn Indians into foreigners and foreigners into Indians on the basis of fake or duplicate documents”. Later, the All Assam Minority Students’ Union asserted that the Assam Police Border Organisation (APBO) and FTs were “foreigner-making factories” and alleged that “officials have orders to harass the religious and linguistic minorities”.

The APBO is a wing of the State police tasked with detecting foreigners. Officials of this wing feed the cases to the FTs for deciding who is a foreigner and who is not. The government allegedly gives the border police a monthly target for detecting people of suspect citizenship and the cases of such people are referred to the FTs.