2020 Statelessness & Citizenship Review 2(1) Foreigners Act, 1946 was invalid after the adoption of the Constitution, in view of a specific non-derogable guarantee of protection from arbitrary and whimsical treatment provided in art 14 of the Constitution. 64 This protection has been interpreted by the Supreme Court of India to extend even to foreigners. 65 It is also significant that the FT is not mentioned in Article 323-B of the Constitution, which means that the setting up of a tribunal for the determination of ‘foreigner’ status is not expressly contemplated in the Constitution. Arguably, it may still fall within the residual legislative power of the Union Government and as an incident of the inherent right of a sovereign nation. 66 In exercise of its powers under s 3 of the Foreigners Act, 1946, the Central Government issued an executive order called the Foreigners (Tribunals) Order, 1964 (‘FTO’). 67 Paragraph [2](2) of the FTO empowers the Central Government to appoint FTs consisting of such number of persons having judicial experience as it may think fit to appoint. Paragraph [2](1) of the FTO empowers the Central Government to refer the question as to whether a person is not a foreigner within the meaning of the Foreigners Act, 1946 … to a Tribunal to be constituted for the purpose, for its opinion. The FTO was amended in May 2019 to empower the FT to also entertain ‘appeals’ against exclusions preferred by those excluded from the final list of the NRC in Assam. 68 It is relevant that the FT is required to answer the reference sent to it, and to render an ‘opinion’ (as distinct from a judgment, decree or order). In practice, this allows an officer (a litigant) on whose reference the opinion is rendered to adversely comment upon the same and recommend that the opinion be challenged before the High Court. Thus, it is apparent that FTs have not been created by ‘law enacted by parliament’. This is crucial because recently in Roger Mathew v South Indian Bank (‘Roger Mathew’), the Supreme Court of India has re-confirmed that as long as broad legislative guidance or policy is provided for in the legislation creating a tribunal, it is constitutional that the workings of a tribunal are left to be provided by resorting to the rule-making power. 69 In the case of FTs in Assam, as they have not been created by a law passed by parliament, this legislative guidance is absent. The Foreigners Act, 1946, a pre-constitutional statute, is completely silent even on setting up of FTs, let alone providing any guidance. Thus, whether one looks at FTs from the yardstick given by Gogoi CJ (majority) or that given by Deepak Gupta J (dissenting) in Roger Mathew, FTs are not lawful. It is also significant that orders issued by the Central Government under [3] (such as the FTO) are not required to be tabled before parliament, whereas those 64 65 66 67 68 69 Constitution (n 43) art 14: ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’. Railway Board v Chandrima Das [2000] 2 SCC 465 (Supreme Court of India). The Supreme Court of India held that a Bangladeshi national who was sexually assaulted in India could approach the Indian constitutional courts for enforcement of fundamental rights of equality and of due process. See Union of India v Delhi High Court Bar Association [2002] 4 SCC 275 (Supreme Court of India) 285 [12]. Foreigners (Tribunals) Order, 1964 (India) GSR 1401 of 1964. See Foreigners Tribunals (Press Release, Press Information Bureau 11 June 2019) <https://pib.gov.in/PressReleseDetailm.aspx?PRID=1573947>; Foreigners (Tribunal) Amendment Order, 2019 (n 40). Civil Appeal No 8588 of 2019 (Supreme Court of India). 123