Identifying the ‘Outsider’ However, as previously discussed, there is no specific provision under the Foreigners Act, 1946 enabling the creation of a tribunal much less providing for any criteria for appointment, and the FTO is issued with reference to omnibus power of the Central Government to issue orders. Under the FTO, the requirement is only that of holding ‘judicial experience’, which has the power to decide on citizenship status resulting also in statelessness or even perpetual detention. 77 This may be contrasted with eligibility conditions that have been provided for some other tax tribunals as well where minimum judicial experience are also spelt out. 78 Interestingly, for the establishment of an Advisory Board for Preventive Detention, the Constitution art 22(4) requires that an advisory board must consist of persons who are, or have been, or are qualified to be appointed as, ‘Judges of a High Court’. In other statutes where tribunals are contemplated, collegiate decision making is expected and a distinction is made between a judicial member and a technical member, where judicial members must have judicial experience and must bring reasonableness, fairness and impartiality to the table. Thus, it seems ex facie incongruous that tribunals dealing with issues of status determination — where the question is whether a person is a foreigner and is permitted to regulate custody and detain or intern a person — does not even have a statutorily fixed eligibility condition. The power to appoint members of the FT, or even their conditions of service, is not statutorily regulated. Having regard to the provision of art 22(4) of the Constitution, 79 it also appears that in so far as qualifications of the presiding judge are concerned, a foreigner who is ‘preventively’ detained is on a better footing than ‘Indians’, or even ‘foreigners’, who are detained indefinitely under the Foreigners Act, 1946 because they have not been able to disprove the allegation that they are foreigners. C Applying the Criteria of ‘Judicial Experience’ to the Selection Process The sole restriction on the power to appoint members of FT arises from the use of the phrase ‘judicial experience’, which is extremely vague. The reason it is ‘vague’ is because, in practice, it appears that the Central Government, as well as the Gauhati High Court, have made (an untenable) distinction between ‘judicial 77 78 79 (d) he has held any judicial office in India for not less than seven years; or (e) he has been the presiding officer of a Labour Court constituted under any Provincial Act or State Act for not less than five years. (f) he is or has been a Deputy Chief Labour Commissioner (Central) or Joint Commissioner of the State Labour Department, having a degree in law and at least seven years' experience in the labour department including three years of experience as Conciliation Officer… Foreigners (Tribunals) Order, 1964 (n 67) [2](2). Regarding the Customs Excise and Service Tax Appellate Tribunal, see Customs Act, 1962 (India) Act No 52 of 1962, s 129(2): ‘A judicial member shall be a person who has for at least ten years held a judicial office’. Regarding the Income Tax Appellate Tribunal, see Income Tax Act, 1961 (India) Act No 43 of 1961, s 252(2): ‘A judicial member shall be a person who has for at least ten years held a judicial office’. Constitution (n 43) art 22(4) provides that: No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless— (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention… 126