IDENTIFYING THE ‘OUTSIDER’: AN ASSESSMENT OF FOREIGNER TRIBUNALS IN THE INDIAN STATE OF ASSAM TALHA ABDUL RAHMAN * The State of Assam in the Union of India has a peculiar history of the movement of people from across India’s international borders into Assam. There is no credible way to arrive at specific numbers. Arrival of people in Assam has become a point that has been abused by those in power to utilise local sentiments regarding the dilution of ‘Assamese culture’. This article briefly discusses the timelines leading up to the preparation of the Assam’s National Register of Citizens that presently excludes approximately 1.9 million residents. The citizenship status of those excluded is to be determined by Foreigners Tribunals (‘FT’) functioning under the Foreigners Act, 1946 — a post-Second World War and pre-Constitution legislation whose validity is also in doubt. This article examines the Foreigners Act, 1946, as well as the constitution and performance of the FTs with reference to the yardsticks of the rule of law and constitutional values. Towards this end, the article analyses the law discernible from the judgments of the Indian Courts as well as some judgments of the Assam High Court and the FTs. It concludes by stating that the framework of adjudication by FTs is not able to keep up with the promise of effective adjudication under the Constitution of India. It calls for an urgent need for academic scrutiny of all aspects of the citizenship verification process in India. TABLE OF CONTENTS Introduction........................................................................................................... 112 Contextualising The Problem of the ‘Outsider’ in Assam .................................... 114 The Rule of Law ................................................................................................... 119 The FT in Assam................................................................................................... 121 A Establishment of the FT............................................................................ 121 B Selecting Members for the FT .................................................................. 124 C Applying the Criteria of ‘Judicial Experience’ to the Selection Process . 126 D Lack of Transparent Selection Process and Lack of Judicial Training..... 128 E Members of FTs Lack Decisional Autonomy .......................................... 129 Procedure Followed by FTs .................................................................................. 130 A Due Process Guarantees Are Not Available in FTs.................................. 131 B FTs’ Power to Devise Their Own Procedure............................................ 133 Conclusion: ‘Designed to Exclude’ ...................................................................... 136 INTRODUCTION The publication of the National Register of Citizens (‘NRC’) in August 2019, which excluded 1.9 million persons in Assam, India, from the list of citizens, has given rise to much domestic and international concern regarding the risk of statelessness and serious violations of other rights likely to ensue. To date, however, there has been no comprehensive analysis of the legitimacy of the * Talha Abdul Rahman (BA, LLB (Hons) (NALSAR, India), BCL (Oxon), Advocate on Record, Supreme Court of India, New Delhi. Visiting Fellow (2020), Peter McMullin Centre on Statelessness, Melbourne Law School, University of Melbourne. The author acknowledges that this work has immensely benefited from the Visiting Fellowship and support from Peter McMullin Centre on Statelessness, Melbourne Law School, University of Melbourne.