2. Institutionalised Arbitrariness 2.4 The Rule of Law Norms of Institutional Integrity Although the FTs are sui generis in their legal evolution, this singularity does not exempt them from constitutional scrutiny. On the contrary, when such bodies are tasked with adjudicating core constitutional values and rights like citizenship, their structure and functioning must adhere to foundational constitutional principles. 48 Following the Gauhati High Court’s ruling in Bahaluddin, the Foreigners Tribunals in Assam act as substitutes for ordinary courts in citizenship cases, yet lack the institutional integrity such a role requires. When bodies charged with decisions as grave as citizenship are neither constituted by law nor equipped with the independence and competence of proper courts, they do more than breach constitutional norms—they erode the core of the rule of law. Domestic legal norms, particularly those flowing from the Indian Constitution’s commitment to the rule of law, impose stringent requirements on any adjudicatory forum exercising judicial power, especially one that displaces the ordinary judiciary. These requirements—of independence, impartiality, and competence—are part of the basic structure of the Constitution and therefore non-derogable, even by legislative action. The Indian Supreme Court has repeatedly affirmed that the rule of law is a constitutional constraint that governs how tribunals may be established and function. In Union of India v. Madras Bar Assn. (2010) (“MBA I”),103 the Supreme Court explicitly held that “independent judicial tribunals for determination of the rights of citizens, and for adjudication of the disputes and complaints of the citizens, is a necessary concomitant of the Rule of Law.”104 It elaborated that, “Rule of Law has several facets, one of which is that disputes of citizens will be decided by Judges who are independent and impartial; and that disputes as to legality of acts of the Government will be decided by Judges who are independent of the Executive.”105 Equally crucial, the Supreme Court held, is that the principle of equality before the law—which animates Article 14 of the Constitution—can only be realised when individuals have access to an independent forum capable of impartially adjudicating their rights. The Court noted that, “[T]he fundamental right to equality before law and equal protection of laws guaranteed by Article 14… includes a right to have the person’s rights adjudicated by a forum which exercises judicial power in an impartial and independent manner, consistent with the recognized principles of adjudication.”106 103 (2010) 11 SCC 1. ibid [40]. ibid [40]. 106 ibid [40]. 104 105