SC on citizenship law

Disclaimer: Copyright infringement is not intended.

Context:

• The Supreme Court last week declared Assam resident Md Rahim Ali a citizen of India, throwing out the decision of a Foreigners’ Tribunal in Assam.

Facts of the case

• Ali was born in Dolur village in Barpeta district, and his parents’ names appeared in the voters’ list of 1965.
• In 2004, the government inquired into Ali’s nationality.
• Because of minor discrepancies in spellings and dates in the documents produced by Ali, the Foreigners’ Tribunal (FT) declared him a foreigner holding that he had entered India illegally on or after the cut-off date of March 25, 1971.

●Clause 5 of the Assam Accord sets January 1, 1966, as the base cut-off date for the detection and deletion of "foreigners." ●Section 6A of the Citizenship Act was inserted to accommodate provisions for the regularisation of those who arrived in Assam between January 1, 1966, and March 24, 1971. Read about Assam accord: https://www.iasgyan.in/daily-current-affairs/defining-assamese

On the burden of proof

• Section 9 of The Foreigners Act, 1946, puts the burden of proof on the person who is alleged to be a foreigner.

Supreme Court rulings on burden of proof:

• While the burden of proof may be on the accused under the Foreigners Act, this burden is to be discharged only after the state has shared the material on which the allegation is founded.
• The supply of this material is an integral part of the classic rule of natural justice, audi alteram partem, i.e., no one shall be condemned unheard.
• In the absence of the basic/ primary material, authorities can not arbitrarily initiate proceedings, which have life-altering and very serious consequences for the person.
• Initial burden of proof must lie with prosecution.

Reverse burden of proof ●It is a legal principle that shifts the burden of proof from the prosecution or the plaintiff to the defendant in a criminal or civil case. ●This means that the accused or the defendant must prove their innocence or defend themselves against the allegations brought against them. Notable cases related to reverse burden of proof Mukesh Singh vs State (2020): ●Even in cases of a reverse burden of proof, the initial burden, which exists on the prosecution, must be satisfied. Noor Aga vs State of Punjab (2008) ●Some basic facts must first be proved by the prosecution even in cases of reverse burden of proof. ●It is a settled principle of criminal jurisprudence that the more serious the offence, the stricter is the degree of proof.

What are Foreigners’ Tribunals?

• Foreigners’ Tribunals were established under The Foreigners Act and were meant to deal with foreigners rather than citizens.
• They were established in 1964 by an executive order of the Home Ministry, even though under Article 323B of the Constitution, tribunals may be established by “the appropriate legislature” by “law”.
• Every individual, whose name does not figure in the final National Register of Citizens (NRC), can represent his/her case in front of the appellate authority i.e. Foreigners Tribunals (FT).
• Under Section 2(a) of the 1946 Act, “a foreigner means a person who is not a citizen of India”.

Constitution of Tribunals

• The Tribunal shall consist of a such number of persons as the Central Government may deem fit to appoint.
• Where the Tribunal consists of two or more members, one of them shall be appointed as the Chairman thereof.

Power of Tribunals

The Tribunals has the powers of a civil court while following a suit under the Code of Civil Procedure, 1908 in respect of the matters, which are: –

1. Summoning and enforcing the attendance of any person and examining him.
2. Requiring the discovery and production of any document.
3. Issuing commissions for the examination of any witness.

The Foreigners (Tribunals) Order, of 1964

• It was enacted by the Central government through the use of powers granted under Section 3 of the Foreigners Act, of 1946.
• The Foreigners (Tribunals) Order, 1964 gives district magistrates the authority to establish tribunals to determine whether a person residing in India classifies as a foreigner or not.

Amendment to Foreigners (Tribunals) Order

Empowers individuals to approach tribunals

• Individuals can now approach tribunals, whereas previously only the state administration could do so.

Allows district magistrates to refer individuals to tribunals

• District magistrates can refer people who haven't filed claims against their exclusion from the National Register of Citizens (NRC) to tribunals to determine if they are foreigners.

Allows district magistrates to ask tribunals for opinions

• District magistrates can ask tribunals for their opinion on whether an appellant is a foreigner under the Foreigners Act, 1946.

Empowers states to set up tribunals

• States can now establish tribunals, whereas previously only the center had this power.

Data and facts about misuse of Foriegner’s Tribunals ●About 3 lakh people in Assam were declared Doubtful Voters in 1997 and in subsequent years by low-ranked government officials without any inquiry or notice. They were excluded from the Assam NRC, and they now face the FTs. ●Paragraph 3(1) of Foreigners’ Tribunal Order of 1964 mandates that notices shall mention the “main grounds”, but notices issued by FTs generally do not mention any ground, and people have to defend themselves without knowing the charges. ●Until March 2019, as many as 1.17 lakh people had been declared foreigners.

Conclusion:

• The judgement will reduce the anxieties of many people who, following the enactment of The Citizenship (Amendment) Act, 2019, and the proposal to have a nationwide National Register of Citizens (NRC), are worried about minor spelling mistakes in their and their parents’ names, or similar discrepancies in dates.

Important articles for reference:

NRC

CAA

Sources:

• https://indianexpress.com/article/explained/explained-law/expert-explains-in-supreme-court-verdict-on-assam-man-humanising-of-citizenship-law-9455314/
• https://www.legalserviceindia.com/legal/article-11588-reverse-onus-a-jurisprudential-analysis-and-charting-its-relevance-in-the-indian-diaspora.html#:~:text=It%20is%20a%20legal%20principle,the%20allegations%20brought%20against%20them.

PRACTICE QUESTION Q.With reference to Foerigner’s Tribunals consider the following statements: 1. The Constitution explicitly mentions that tribunals are to be established by law. 2. Only the Union government can establish them across India. 3. Burden of proof to prove their citizenship, declared illegal by Foreigner’s Tribunals, lies on the accused person . Which of the statements given above are correct? (a) 1 and 2 only (b) 2 and 3 only (c) 1 and 3 only (d) 1, 2 and 3 Answer: c Explanation ●Foreigners’ Tribunals were established under The Foreigners Act, which was meant to deal with foreigners rather than citizens. ●They were established in 1964 by an executive order of the Home Ministry, even though under Article 323B of the Constitution, tribunals are to be established by law. ●Under Section 2(a) of the 1946 Act, “a foreigner means a person who is not a citizen of India”. ●It will be applicable to persons against whom there is strong evidence of being a foreigner and they were caught while entering India, or they were in possession of a passport of another country. ●Section 9 of The Foreigners Act, 1946, puts the burden of proof to prove their nationality on the person who is alleged to be a foreigner. ● A 2019 amendment to the Foreigners (Tribunals) Order empowers states to set up FTs. ●While the Order of FTs applies nationwide, tribunals are currently operational only in Assam. This creates a disparity in how suspected illegal immigrants are handled across different states.