UPSC MAINS 2019 : The judicial presumption of non-citizenship

The judicial presumption of non-citizenship

Topic : The judicial presumption of non-citizenship

Topic in Syllabus: General Studies Paper 2: Indian Polity

 

Context:

The judicial presumption of non-citizenship

The Controversy in Assam pertaining to citizenship.

 

Background:

  • On May 17, in a very short hearing, a three-judge Bench of the Supreme Court (the Chief Justie of India Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna) decided a batch of 15 petitions under the title Abdul Kuddus v Union of India.
  • Abdul Kuddus, a resident of Assam had been declared a foreigner by the Foreigner’s Tribunal
  • But his name had appeared in the final draft of the NRC for Assam along with his family
  • There is a conflict in inclusion under NRC and exclusion under Foreigner Tribunals. This was a case asking the SC if the Foreigner Tribunal had powers to declare a person as foreigner.
  • As many as 64,000 people have been declared non-citizens in ex-parte proceedings, i.e., without being heard by the Foreigners Tribunals.

 

Issues with Citizenship in Assam:

  • The first National Register of Citizens was compiled in 1951, after the Census was completed that year. The Partition of the subcontinent and communal riots had just triggered vast population exchanges at the border.
  • Since 2015, the state has been in the process of updating the 1951 register. One of the stated aims of the exercise is to identify so-called “illegal immigrants” in the state, many of whom are believed to have poured into Assam after the Bangladesh War of 1971.
  • In 1979, about eight years after the war, the state saw an anti-foreigners’ agitation. Assamese ethnic nationalists claimed illegal immigrants had entered electoral rolls and were taking away the right of communities defined as indigenous to determine their political future.

 

Question of citizenship in Assam:

In the State of Assam, there are two ongoing processes concerning the question of citizenship.

  • The first includes proceedings before the Foreigners Tribunals, which have been established under an executive order of the Central government.
  • The second is the NRC, a process overseen and driven by the Supreme Court.

While nominally independent, both processes nonetheless bleed into each other, and have thus caused significant chaos and confusion for individuals who have found themselves on the wrong side of one or both.

 

Arguments Of appellant

  • The petitioners inAbdul Kuddus argued that an opinion rendered by the Foreigners Tribunal had no greater sanctity than an executive order.
  • Under the existing set of rules, this meant that an adverse finding against an individual would not automatically result in their name being struck off the NRC.
  • Furthermore, the Tribunal’s opinion could be subsequently reviewed, if fresh materials came to light.
  • In short, the petitioners’ case was that the two processes — that of the Foreigners Tribunal and of the NRC — should be kept entirely independent of each other, and without according primacy to one over the other.

Flawed tribunals

  • The Supreme Court rejected the petitioners’ arguments, and held that the “opinion” of the Foreigners Tribunal was to be treated as a “quasi-judicial order”, and was therefore final and binding on all parties including upon the preparation of the NRC.
  • The Court attempted to justify this by observing that “fixing time limits and recording of an order rather than a judgment is to ensure that these cases are disposed of expeditiously and in a time bound manner”.
  • Departure from rule of law –  When the stakes are so high, when the consequences entail rendering people stateless, then to allow such departures from the most basic principles of the rule of law is morally grotesque.

 

Problems with judgement and tribunals

  • Foreigners Tribunals were established by a simple executive order.
  • Qualifications to serve on the Tribunals have been progressively loosened and the vague requirement of “judicial experience” has now been expanded to include bureaucrats.
  • Tribunals are given sweeping powers to refuse examination of witnesses if in their opinion it is for “vexatious” purposes.  Subject to provisions of this manner, Tribunals are left free to “regulate their own procedure for disposal of cases.”

 

Way Forward:

  • A person’s citizenship is a basic human right.
  • Declaring people foreigners in haste without judicially verifying their credentials can leave many human beings stateless.
  • Under such circumstances, the Tribunal must uphold their fundamental constitutional promises and function with complete independence, without any hint of arbitrariness or discrimination in the adjudication process.

 

Sample Question

In further strengthening the Foreigners Tribunal, the judiciary has failed to fulfil its duty as the last protector of rights. Comment.

 


 

The judicial presumption of non-citizenship infograph