2. Institutionalised Arbitrariness tribunals and the FTs coexisted.67 IMDT tribunals functioned as the exclusive judicial forum for citizenship disputes in Assam, while the FTs remained administrative bodies supporting decision making when people were suspected of entering Assam between 1966 and 1971.68 This distinction was elided—but not resolved—by the Supreme Court’s judgment in Sonowal I, which struck down the IMDT Act and transferred all pending cases to the FTs. The Court did not require any structural changes to the FTs, thereby vesting them with a jurisdiction formerly exercised by statutorily constituted judicial bodies, without modifying their administrative design or enhancing their procedural safeguards. This elision was compounded by the Gauhati High Court’s decision in Bahaluddin Sheikh v. Union of India & Ors (2013),69 which held that following Sonowal I, the FTs enjoyed exclusive jurisdiction over citizenship determination in Assam.70 The Court declared that civil courts were barred from entertaining suits on this matter, reasoning that the relevant statutes—namely the Foreigners Act and the Citizenship Act—contained “inbuilt” provisions delegating this authority to the FTs and the Central Government.71 This reasoning is flawed on multiple grounds. First, it misrepresents the implications of Sonowal I. The controversy surrounding the IMDT Act arose not because civil courts enjoyed concurrent jurisdiction, but because the IMDT framework was seen as too protective of alleged migrants. By directing that pending IMDT cases be transferred to FTs, the Supreme Court did not endorse the FTs’ structural legitimacy or judicial capacity. It simply filled the vacuum left by the Act’s invalidation, without attending to the lack of statutory authority underpinning the FTs. Second, the Gauhati High Court failed to apply the established test for ousting civil courts’ jurisdiction under Section 9 of the Code of Civil Procedure (CPC).72 As clarified by the Supreme Court,73 civil courts’ jurisdiction can only be excluded where there is a clear statutory provision to that effect or where an alternative remedy is so comprehensive that it implicitly bars recourse to ordinary courts. On this test, the FT Order fails. It does not explicitly exclude civil court jurisdiction, nor create a special statutory right or judicial remedies comparable to those offered by civil courts. The FTs were never intended to function as fully-fledged adjudicatory forums with binding authority and appeal 67 Government of Assam, ‘White Paper on Foreigners’ Issue’ (n 59); Foreigner’s Tribunals co-existed with IM(D)Ts with the signing of the Assam Accord. While IM(D)Ts took up cases of suspected foreigners of the post March 25th 1971 stream, the existing Foreigners Tribunals were entrusted with the responsibility of disposing of cases pertaining to pre-March 25th 1971 stream of suspected foreigners. 68 The only set of cases in which the FT determinations were treated as legally binding were under Section 6A of the Citizenship Act. Section 6A(1)(b) defines “detected to be a foreigner” to mean detection by the Tribunals constituted under the Foreigners (Tribunals) Order, 1964. Section 6A(3) provides for registration of “persons of Indian Origin” under certain conditions: (a) if they came to Assam from the “specified territory” between 01.01.1966 and 25.03.1971, (b) if they have been ordinarily resident in Assam since the date of their entry, and (c) if they have been detected to be foreigners. As per the Explanation to Section 6A(3), the opinion of the FT is deemed to be sufficient proof of these requirements for the purpose of such registration only. 69 2013 SCC OnLine Gau 108. 70 ibid [57-59]. 71 ibid [38]. 72 Section 9 of the CPC provides: “Courts to try all civil suits unless barred: The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” 73 Dhulabhai v. The State of Madhya Pradesh AIR 1969 SC 78 [9]. 41