Assam Foreigners’ Tribunals

The Foreigners’ Tribunals (FTs) in Assam are quasi-judicial bodies unique to the state, tasked with determining the citizenship status of individuals suspected of being illegal immigrants. They are the ultimate authority in Assam for deciding whether a person is an Indian citizen or a foreigner.

The following points detail their legal basis, structure, powers, and controversies.

1. Origin and Legal Framework

• Establishment: The FTs were established under the Foreigners (Tribunals) Order, 1964, issued by the Central Government under Section 3 of the Foreigners Act, 1946.
• Assam Specificity: While the 1964 Order is applicable nationwide, these tribunals function primarily in Assam due to the state’s unique history of migration and the Assam Accord (1985).
• Shift in Law (2005): Previously, illegal migrants in Assam were detected under the Illegal Migrants (Determination by Tribunal) Act, 1983 (IMDT Act), which placed the burden of proof on the accuser. The Supreme Court struck this down in 2005 (Sarbananda Sonowal v. Union of India), reverting the process to the stricter Foreigners Act, 1946.
• Recent Developments (2025 Context): In the current legal landscape (as of late 2025), there are moves to modernize the framework, with reports of a new Immigration and Foreigners Order/Act 2025 intended to replace or update the 1964 Order, empowering FTs with stricter enforcement capabilities, such as issuing arrest warrants for non-appearance.

2. Composition and Structure

• Quasi-Judicial Nature: They are not full courts but “quasi-judicial” bodies.
• Members: Each tribunal is headed by a “Member” (similar to a judge).
• Eligibility: Members are typically retired judicial officers, bureaucrats with judicial experience, or lawyers with a minimum number of years of practice (often 7-10 years).
• Appointment: They are appointed by the Assam state government, often on a contractual basis, which has led to criticism regarding their independence and pressure to deliver “performance” (i.e., declaring foreigners).

3. Powers and Jurisdiction

• Civil Court Powers: Under the 1964 Order, FTs have powers similar to a civil court, including:
  • Summoning and enforcing the attendance of any person.
  • Requiring the production of documents.
  • Examining witnesses on oath.
• Burden of Proof: Crucially, under Section 9 of the Foreigners Act, 1946, the burden of proof lies entirely on the accused. The person must prove they are an Indian citizen; the state does not need to prove they are a foreigner.
• Final Authority: The decision of the FT is binding. If an FT declares a person a foreigner, they can be detained and deported unless the order is stayed or overturned by a higher court (Gauhati High Court or Supreme Court).

4. Who Is Referred to a Tribunal?

Individuals typically end up before an FT through three main channels:

1. Border Police References: The Assam Police Border Organisation can flag an individual as a suspected illegal immigrant and refer them to an FT.
2. ‘D’ Voters (Doubtful Voters): The Election Commission of India marks certain voters as ‘D’ voters during electoral roll revision if their citizenship is in doubt. Their cases are sent to FTs.
3. NRC Exclusions: People excluded from the final National Register of Citizens (NRC) (published in August 2019) can appeal their exclusion before an FT.

5. The Trial Process

• Notice: Once a reference is received, the FT serves a notice to the individual.
• Written Statement: The accused must appear and file a written statement along with evidence (documents like land records, voter lists, refugee registration certificates) proving their or their ancestors’ residency in Assam before the cutoff date (March 24, 1971).
• Ex-Parte Orders: If the accused fails to appear (often due to not receiving the notice, poverty, or ignorance), the FT can pass an ex-parte order, declaring them a foreigner in their absence.
• Timeline: The law stipulates cases should generally be disposed of within 60 to 120 days, though delays are common.

6. Criticisms and Controversies

• Arbitrariness: FTs have been criticized for declaring people foreigners due to minor clerical errors in documents (e.g., spelling mistakes in names or age mismatches).
• Bias and Pressure: Reports suggest that Members are sometimes evaluated based on their “disposal rate” or the number of people they declare foreigners, creating a bias against the accused.
• Lack of Legal Aid: Many accused are poor, illiterate villagers who cannot afford competent legal counsel to navigate complex documentation requirements.
• Gender Bias: Women are disproportionately affected as they often lack historical land documents or have name changes after marriage that create discrepancies in records.

7. Why in News

• Pending Cases: There is a massive backlog of cases (often cited in the lakhs) pending before the FTs, including those arising from the 2019 NRC exclusions.
• Detention: Those declared foreigners can be sent to “Transit Camps” (formerly detention centres). However, actual deportation to Bangladesh is rare due to the lack of a formal repatriation treaty for these specific cases.
• Electoral Impact: In late 2025, the Election Commission’s “special revision” of electoral rolls continues to exclude ‘D’ voters and those declared foreigners by FTs until their names are cleared.