Identifying the ‘Outsider’ outlines and critiques the establishment and constitution of the FTs, while Part V examines and analyses how they function. For the purposes of considering the onthe-ground situation in the Indian State of Assam, this article relies on newspaper articles and coverage by non-governmental organisations (‘NGO’), and for other issues the article follows a doctrinal analysis. This article focuses on procedural issues inherent in the FT process. While it is relevant to examine the validity of the substantive law that is applied by FTs, this is beyond the scope of the present article. CONTEXTUALISING THE PROBLEM OF THE ‘OUTSIDER’ IN ASSAM The social ‘problem’ of the ‘outsider’ in the Indian State of Assam is not new. 3 Throughout the nineteenth century, successive rulers and governments encouraged the settlement of outsiders in various parts of Assam — in the Brahmaputra river valley for cultivation or on the hilly slopes for cheap labour in tea gardens. The partition of Bengal in 1905 that created separate electorates for Hindus and Muslims in West Bengal and East Bengal and Assam only amplified the differences and insecurity. 4 However, even within the State of Assam, historically there has been a distinction between those residing in the hills of Assam and those in the plain or the Brahmaputra valley. This division can be seen in the acknowledgement of Autonomous Districts in the Hills of Assam on the one hand and the rest of Assam on the other. 5 However, in order to gain political unification of the people of Assam, a common enemy — the Bengali speaking outsider from East Bengal — was created, 6 and this enemy was projected as a ‘chauvinistic Bengali’ speaking people who even considered the Assamese language a mere dialect of Bengali and looked down upon the ‘tribal’ Assamese. However, focused resentment against Bengali speaking Muslims is a sentiment that developed after the partition of 1947 with the sharp rise in communal sentiments. 7 The earliest instance of the law regulating the presence of ‘foreigners’ in India was in 1864, six years after the British Crown took over the administration of India from the East India Company. 8 The need for better regulation of foreigners in British India arose in the context of tension prior to World War II and summary removal of foreigners from India for which the Foreigners Ordinance, 1939 was promulgated, soon replaced by Foreigners Act, 1940. 9 After World War II, the 3 4 5 6 7 8 9 See Navine Murshid, ‘Assam and the Foreigner within: Illegal Bangladeshis or Bengali Muslims?’ 56(3) Asian Survey 581. Ramesh Chandra Majumdar (ed), The History and Culture of the Indian People: Struggle for Freedom (Bharatiya Vidya Bhavan 1969) 21; Anil Baran Ray, ‘Communal Attitudes to British Policy: The Case of the Partition of Bengal 1905’ (1977) 6(5) Social Scientist 34, 39. See Monirul Hussain, ‘Tribal Movement for Autonomous State in Assam’ (1987) 22(32) Economic and Political Weekly 1329. See Murshid (n 3) 583–84: The diffusion of such ideas in the public sphere set the stage for the Assam Movement of 1979, which concretized what it meant to be a foreigner, not just for the Asomiya-speaking population but also for the different tribes and ethnic groups in the region, by identifying the ‘common enemy’. ibid 590. The Government of India Act, 1858 (UK) 21 and 22 Vict c 106. Hans Raj, Executive Legislation in Colonial India 1939–1947: A Study of Ordinances Promulgated by the Governor General of India (Anamika Pub & Distributors 1989) 8, citing Foreigners Ordinance, 1939 (India); Foreigners Act, 1940 (India) Act No II of 1940 (repealed). 114