STATELESSNESS IN INDIA
Proceedings in FTs are conducted under the Foreigners Act,49 a colonial legislation
intended for an entirely different situation.50 FT proceedings require the person whose
citizenship is deemed questionable to discharge the burden of proof against the grounds
of doubt raised by the State in the referral.51 They also require that, before a referral,
authorities conduct an investigation giving the person concerned adequate opportunity to
produce relevant evidence. However, in most cases, proper investigation is not
conducted52 and referrals are mechanical.53 About 64,000 people have even been made
stateless in absentia, in addition to the 1.9 million from the NRC process.54
FTs are not required to follow procedures of regular civil courts; their opinion is summarily
rendered;55 often arbitrarily;56 and without respect for res judicata.57 Similarly to the NRC
process, oral evidence is often not considered,58 even in relation to parentage and
relationship,59 and documents with minor discrepancies or irregularities are discarded,60
49
Section 9, Foreigners Act, 1946, Annexure B; See also: Mrinmoy Dutta, Citizens for Justice & Peace,
Citizenship Dilemma in Assam, July 19, 2019.
50
The Foreigners Act, 1946 was a war emergency measure not meant to deal with the question of
citizenship of people of Indian origin in a situation created by partition of the country.
51
Paragraph 3(1), Foreigners (Tribunal) Order, 1964, Annexure F.
52
Rahul Karmakar, The Hindu, Witnesses File Cases against Assam Police Officer Who Reported Kargil
Veteran as Foreigner, June 3, 2019; Anwar Tarique, Newsclick, Indians Allegedly Being Made Foreigners
for Money in Assam’s Morigaon, September 10, 2018.
53
“One of the contentions of the proceedees is that though the referral authority is required to make the
reference to the Tribunal after making a fair investigation, no such proper and fair investigation is conducted
and the police at their own whims and caprice gives a report, in some cases even without visiting the place
where such proceedee resides and also without giving any opportunity to produce the relevant documents
to substantiate that the proceedee is not a foreigner, and such report is accepted by the referral authority
and accordingly the reference is made to the Tribunal, on the basis of which the reference is registered
against such person,” in State of Assam v. Moslem Mondal, (2013) 3 Gau LR 402.
54
The Wire, Assam: Since 1985, Ex-Parte Tribunal Orders Have Declared Almost 64,000 People as
Foreigners, July 2, 2019; Rina Chanda V. Union of India and Others, WP (C)/6098/2019 (GHC).
55
“Foreigners’ Tribunals are more like Courts of Executive Magistrates, where opinion is rendered in a
summary procedure”. Shariful Islam V. Union of India, 2019 SCC OnLineGau 2420, dt. 07-06-2019.
56
FTs often refuse to take applications on record and decide them on merits. See, Helal Uddin V Union of
India, WP (C)/4950/2018, Judgment, 06-09-2018; See also: Citizens for Justice and Peace, ‘Citizens for
Assam: A Quest for Hope & Justice’, July 01. 2019.
57
Abdul Kuddus V Union of India and Others, Civil Appeal No.5012 of 2019, SCI held that the rule of res
judicata applies to the orders of FTs; Sagar, Caravan, A case of double incrimination reveals the chimera
of fair trials in Foreigners Tribunals, November 25, 2019.
58
“In a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the
evidentiary value of oral testimony without support of documentary evidence is wholly insignificant.” Asia
Khatoon V. Union of India and 3 Others, WP(C) 4020/2017, (GHC), Judgment dated 21-11-2019.
59
Section 50 of the Indian Evidence Act, 1872.
60
ArotiBala Mandal V. Union of India and Ors, WP(C)/7643/2017 (GHC), Order dated 6-12-2018 held that
documents bearing unauthorised national emblem are not acceptable in evidence.
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