2. Institutionalised Arbitrariness 2.2 Missing Legal Foundations The FTs in Assam lack the legal foundations required by the principle of legality outlined above. Their origins, institutional structure, and subsequent judicial validation fall short of the substantive and procedural guarantees expected under both constitutional and international human rights standards. The FTs were established by executive order under Section 3 of the Foreigners Act, 1946—as an 40 administrative framework55 aimed at identifying and deporting so-called “infiltrators” from Pakistan.56 Their creation was prompted in part by diplomatic objections from the Pakistani government regarding the existing process of identifying undocumented migrants,57 which had previously allowed the police to determine an individual’s citizenship status.58 To mitigate the risk of error and potential harassment of genuine citizens, the FTs were introduced as a mechanism involving persons with judicial experience.59 A Press Note issued by the Government of Assam on 27 July 1965 stated that the FTs were intended to include a basic form of due process to protect Indian citizens.60 Soon after, the Foreigners’ (Tribunals) Order, 1964 (“FT Order”) was issued under the Foreigners Act, formally establishing the FT framework. Paragraph 2 of the FT Order provides that the Central Government may refer the question of whether a person is a foreigner or not to a tribunal for its opinion.61 From the outset, the FTs were conceived not as judicial bodies, but as administrative mechanisms designed to support executive decision-making. They were to render non-binding “opinions” on questions of nationality when referred to them by the Central Government. Importantly, the 1965 Press Note made clear that individuals dissatisfied with an FT’s decision could seek relief before civil courts.62 Indeed, during this period, civil suits for citizenship declarations continued to be entertained in ordinary courts,63 confirming the FTs’ ancillary and non-exclusive role. The first effort to fully displace civil courts in adjudicating citizenship came with the Illegal Migrants (Determination by Tribunal) Act, 1983 (“IMDT Act”), which applied to persons alleged to have entered Assam illegally after 25 March 1971. The IMDT Act provided a statutory basis for the establishment of specialised tribunals, deemed judicial proceedings under Indian law.64 These tribunals were procedurally robust, staffed by judicial officers, and supported by an appellate mechanism,65 features that provided a degree of legal protection to individuals at risk of deportation.66 In this period, IMDT 55 Jha (n 39) 279. Statement by the Minister of State for Home Affairs, Debate on Illegal Entry of Pakistanis, Lok Sabha (4 March 1964). 57 Jha (n 39) 274-279; Statement by the Prime Minister, Debate on Pakistani Infiltration, Lok Sabha (16 December 1963) col 4789; Statement bythe Minister of State for Home Affairs, Debate on Pakistani Infiltration (23 September 1964) col 3224. 58 Statement by the Prime Minister (n 57). 59 Government of Assam, ‘White Paper on Foreigners’ Issue’ (20 October 2012), paras 1.5.1, 1.5.2, 1.5.3; Statement by the Minister of Home Affairs, Debate on Indo-Pakistan Home Ministers’ Conference, Lok Sabha (13 April 1964) col 10703, col 10747. 60 Government of Assam, ‘Press Note on infiltration and deportation of Pakistanis’ (27 July 1965); Statement of Shri Harish Chandra Mathur, Debate on Demand No. 128 – Capital Outlay of the Ministry of Home Affairs, Lok Sabha (13 April 1964) col 10748. 61 Foreigners (Tribunals) Order 1964, para 2. 62 Government of Assam, ‘Press Note on infiltration and deportation of Pakistanis (n 60); Statement by the Minister of Home Affairs, Debate on Demands for Grants, Lok Sabha (15 April 1964) col 11319. 63 Union of India v. Ghaus Mohd. 1961 SCC OnLine SC 2; Abdur Rahim v. Union of India 1991 SCC OnLine Gau 106; The Superintendent Of Police, Cachar v. Abdul Rashid 1979 SCC OnLine Gau 23; Bahaluddin Sheikh (n 44). 64 Illegal Migrants (Determination by Tribunals) Act 1983, s 19. 65 ibid ss 5, 6, 7, 20. 66 ibid ss 14, 15. 56