In 33 years, 64,000 in Assam have been declared foreigners by ex parte orders. Under what circumstances do Foreigners’ Tribunals deliver such orders? Ahead of publication of final NRC, a look at a complex process.

Last week, Minister of State for Home G K Reddy told Parliament that between 1985 and February 28, 2019, Foreigners’ Tribunals in Assam have declared 63,959 persons foreigners in ex parte proceedings — or, in the absence of these persons.

How do Foreigners’ Tribunals work?
These are a key player in the exercise to identify illegal immigrants in Assam, and in focus now ahead of the July 15 publication of the final National Register of Citizens (NRC). The Foreigners’ Tribunals — 100 existing and 200 more to be functional by September 1 — are quasi-judicial bodies meant to “furnish opinion on the question as to whether a person is or is not a foreigner within the meaning of Foreigners Act, 1946”. In 1964, the Centre passed the Foreigners’ (Tribunals) Order under provisions of Section 3 of the Act. The FTs get two kinds of cases: those against whom a “reference” has been made by border police, and those whose names in the electoral rolls have a D (Doubtful) against them.

Under what provision do Foreigners’ Tribunals pass ex parte orders?
Section 9 of the Foreigners Act says that “the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, not withstanding anything contained in the Indian Evidence Act, 1872, lie upon such person”.

Thus, the accused has to prove he or she is an Indian. “Since the onus is on the person, if he or she is absconding and doesn’t appear before the tribunal, the member can pass an ex parte order.

Previously, under the Illegal Migrants (Determination by Tribunals) Act, 1983, the onus of proving one’s nationality or otherwise lay on the complainant. In 2005 (Sarbananda Sonowal vs Union Of India), the Supreme Court struck down the IMDT Act and held that it “has created the biggest hurdle and is the main impediment or barrier in the identification and deportation of illegal migrants”.