2. Institutionalised Arbitrariness 2.7 Absent Competence The requirement that tribunals be “established by law” entails jurisdictional and institutional competence. As Clooney and Webb argue, this requirement encompasses the qualifications of tribunal members and the legal definition of the tribunal’s jurisdiction.146 A tribunal must be empowered by law, and its adjudicators must possess relevant expertise and professional 60 competence. The European Court of Human Rights (ECtHR) has held that the absence of legally qualified adjudicators may itself constitute a breach of the right to a fair hearing.147 Competence includes qualifications, appointment processes, training, and promotion. According to the HRC, judicial appointments should be grounded in transparent procedures and objective criteria,148 which prioritise merit and exclude political considerations.149 The Special Rapporteur on judicial independence has further stressed that the integrity, qualifications, and independence of appointees are critical considerations in the selection of judges.150 To ensure judicial competence, the HRC has recommended that judicial appointments and promotions be carried out by independent mechanisms.151 Adequate training is another safeguard essential to judicial competence.152 Promotions should also be regulated by law, using transparent procedures and objective criteria,153 preferably overseen by an independent body.154 FTs lack independence from the executive in the appointment of members. While the FT Order states that members must have “judicial experience,”155 this term remains vague and overbroad.156 Crucially, there is no legislative prescription of the specific qualification and expertise of members, leaving it in the hands of the executive to pick and choose them without any control of the legislature. In the absence of any legislative guidance, the qualification criteria has remained at the whims of the Ministry of Home Affairs, Government of India, which has diluted it over the years from 2011 to 2019. In 2011, only retired judicial officers from the Assam Judicial Service could be appointed. These officers brought judicial training and experience in applying procedural norms. The maximum age was capped at 67, and salaries were based on the last drawn pay scale, supplemented with allowances—conditions designed to preserve the status and independence of appointees.157 By 2015, however, the qualifications were expanded to include practising advocates with ten years of experience, reducing the standard of judicial training. Appointments became contractual, with a fixed monthly salary and a two-year tenure. This shift allowed lawyers—without prior judicial experience or requisite expertise in nationality law—to determine cases involving fundamental rights.158 The eligibility requirements were relaxed even further in 2019, which allowed retired civil servants (with the rank of Secretary/Additional Secretary or above) to be appointed as Members.159 The minimum practice period for advocates also dropped to 7 years, and the minimum age fell to 35 years. For retired judicial officers, the age limit was extended, and appointments became more flexible.160 These changes opened the door to lesser experienced candidates, raising concerns about whether they could navigate the nuanced legal issues tied to identity and citizenship in Assam.