2020 Statelessness & Citizenship Review 2(1) Third, there must be a publicly known and pre-determined procedure and the procedure that the tribunal is required to apply must be just, fair and clear. Before turning to an assessment of the FTs against this criteria, the next section provides a brief explanation of the context in which the FTs function, followed by legal issues in the setting up, administration and functioning of the FTs. THE FT IN ASSAM A Establishment of the FT As an incident of sovereignty, the state has the power to regulate the presence of persons on its soil. 55 Such persons can either be its citizens or non-citizens; but such a process does need to adhere to the rule of law. In the Indian context, the Foreigners Act, 1946 empowers the Central Government to regulate the entry, presence and departure of foreigners in India. The Foreigners Act, 1946 defines its purposes as an Act to provide for the exercise by the Central Government of certain powers in respect of the entry of foreigners into India, their presence therein and their departure therefrom. 56 The Foreigners Act, 1946 does not contain any provision that creates or regulates the FT. In other words, the legislative will to create a FT as a system of adjudication is absent. The reason why the issue of the ‘creation of the tribunal’ is relevant from a constitutional and administrative law perspective is that the manner and purpose of creation determine the delegation, regulation and (ab)use of its power. The purpose of the Foreigners Act, 1946 is neither to verify the citizenship status of a given population nor to adjudicate whether a person is an ‘illegal immigrant’. The purpose of the Foreigners Act, 1946 is limited to the narrow determination of whether a person ‘is not a foreigner’ and it is legislation that was enacted in the backdrop of World War II. Those familiar with framing a charge in criminal cases or framing of issues in civil cases would appreciate that the issue of whether a person ‘is not a foreigner’ is distinct from whether a person ‘is a citizen of India’, and certainly distinct from the issue whether a person ‘is a citizen of Bangladesh’ as is often alleged for those accused of being a foreigner in the context of Assam. In fact, it is highly doubtful whether courts in India can adjudge a person to be a national of another country, say Bangladesh. 57 Thus, a legally untenable process 55 56 57 See Virginie Guiraudon and Gallya Lahav, ‘A Reappraisal of the State Sovereignty Debate: The Case of Migration Control’ (2000) 33(2) Comparative Political Studies 163. Foreigners Act, 1946 (n 10) preamble. In Cruz City 1 Mauritius Holdings v Unitech Limited [2017] 239 DLT 649 (Delhi High Court) [23], the Delhi High Court (in the context of arbitration) has held: 121