DESIGNED TO EXCLUDE: HOW INDIA'S COURTS ARE ALLOWING FOREIGNERS TRIBUNALS TO RENDER PEOPLE STATELESS IN ASSAM 5 However, on a closer look, it is clear that the former governor gave very little evidence to prove that migration into Assam represented a threat to the national security. Even the evidence furnished was not based on any comprehensive or credible data. The report acknowledges this shortcoming. “Unfortunately, today we have no census report on the basis of which we can accurately define the contours of transborder movement. Thus, we have to rely on broad estimates of theatrical extrapolations to work out the dimension of illegal migration that has taken place from East Pakistan/ Bangladesh“, it goes on to say.3 Why is this report important? Because in 2005, Sarbananda Sonowal - the then President of the All India Assam Student Union (AASU) and current Chief Minister of Assam filed a petition in the Supreme Court of India claiming that largescale migration continues to take place in Assam putting the Assamese population at risk. It heavily drew from this report. The Supreme Court of India held that Assam is indeed facing an “external aggression and internal disturbance”, which if unchecked, will lead to a constitutional breakdown.4 This judgement changed the face of citizenship determination in India. The highest court of India legitimized the one-dimensional equation of migration with national security as endorsed by the report and justified the use of repressive laws and policies in response. It paved the way for repurposing the Foreigners Tribunal, created through the pre-constitutional and colonial Foreigners Act 1946 and under the Foreigners (Tribunal) Order 1964, to determine the citizenship of the people in Assam in 21st century India. These Foreigners Tribunals will now decide whether more than 1.9 million people who were left out of the National Register of Citizens (NRC) in Assam on 31 August 2019 are Indians or not.5 More than 100 Foreigners Tribunals function in Assam currently, and the Government of Assam plans to set up 200 more. In the absence of any appellate body and a highly restricted criterion laid down by the Gauhati High Court for judicial review, the orders of the tribunals are final. This raises concerns because Foreigners Tribunals are vested with extraordinary powers. They do not observe appropriate procedural safeguards that flow from Article 21 of the Constitution of India. On the contrary, each Foreigners Tribunal is allowed to devise and follow its own procedure that may not hold the scrutiny of domestic and international human rights law. of the training are unknown. The extension of their tenure is dependent on their ‘performance’. In practice, Amnesty International India has found that the Assam government evaluates their performance based on how many people the members declare to be foreigners and accordingly extends their tenure. Members who declare foreigners at a rate of less than 10% stand the risk of being axed. The manipulation of foreigners tribunals for political ends is also evidenced by the gradually deteriorating eligibility criteria for recruiting Tribunal members and the undue emphasis on “knowledge of Assam’s historical background giving rise to foreigner’s issues” instead of competence in the area of citizenship and immigration laws. Further, inadequate guidelines for investigating the cases of doubtful nationality gives the Border Police and Election Commission of India a wide discretion in referring a resident of Assam to a Foreigners Tribunal. This discretion is often abused. The reasons given for declaring someone a foreigner are vague and steeped in discrimination. Samina Bibi,6 who Amnesty International India interviewed for this briefing was declared a foreigner by the Foreigners Tribunal. One of the reasons given by the quasi-judicial body was that she could not remember the constituency where her grandfather cast his vote. Abu Bakkar Siddiqui, on the other hand was declared a foreigner because his grandfather’s name was spelled Aper Ali in one document and Afer Ali in another. The orders of the Foreigners Tribunals are divorced from the reality of documentation on ground and disregard the culture and practices of communities in India. Most importantly, lack of documents alone must not lead to deprivation of citizenship, especially in India, where maintaining uniform documentation has always been a great challenge, even for the state. For the last decade and a half, Foreigners Tribunals have wreaked havoc in Assam. They have not been held accountable by the courts, the Government of India and the Government of Assam. There is a need for a legislative regime that provides all the fair trial guarantees, including the access to a fair hearing before a court or independent body and access to judicial review, the people of Assam and now the rest of India deserve and need. In November 2019, the Union Home Minister, Amit Shah responding to a question in the Parliament of India announced a nationwide NRC, including Assam.7 Those left out of this nationwide NRC will approach the same Foreigners Tribunals to prove their citizenship. The members of the Foreigners Tribunal are recruited on a contractual basis and trained for only four days. The modalities 1. Report on Illegal Migration into Assam, Submitted to the President of India by the Governor of Assam, Lt. Gen. (Retd.) S.K. Sinha, D.O. No. GSAG.3/98/, 8 Nov. 1998 2. Report on Illegal Migration into Assam, Submitted to the President of India by the Governor of Assam, Lt. Gen. (Retd.) S.K. Sinha, D.O. No. GSAG.3/98/, 8 Nov. 1998, 20. 3. Report on Illegal Migration into Assam, Submitted to the President of India by the Governor of Assam, Lt. Gen. (Retd.) S.K. Sinha, D.O. No. GSAG.3/98/, 8 Nov. 1998, 7. 4. Sarbananda Sonowal v. Union of India, Writ Petition (Civil) 131 of 2000, https://indiankanoon.org/doc/907725/ 5. Bikash Singh, Those left out of NRC will know reasons next month, The Economic Times, 21 Oct. 2019, https://economictimes.indiatimes.com/news/politics-and-nation/those-leftout-of-nrc-will-know-reasons-next-month/articleshow/71681116.cms?from=mdr 6. Name changed due to reasons of privacy. 7. NRC will be implemented nationwide: Amit Shah, The Tribune, 20 Nov. 2019, https://www.tribuneindia.com/news/nation/nrc-will-be-implemented-nationwide-amit-shah/863582.html