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Why in news?

A series of judgments delivered by the Gauhati High Court over the course of the last few weeks has brought into sharp focus the utter brutality of the regime governing the Foreigners’ Tribunals in Assam.

Difficulty in Proving

  • These verdicts entrench the establishment of an unreasonable burden on people declared as deemed foreigners by seeking from them a standard of proof that is wholly incommensurate with the consequences that befall the ultimate finding — in many cases, consignment to detention camps and a pronouncement of a condition of statelessness.
  • The chances of success are so negligible that, an analysis of 787 orders and judgments of the High Court between 2010 and 2019, by Leah Verghese and Shruthi Naik of Daksh India, shows us that in 97% of the cases, the petitioner before the court was confirmed as a foreigner.

Documents that are NOT Accepted as Proof of Citizenship

  • This statistic is scarcely surprising given the list of documents deemed inadequate for the purposes of establishing a person’s citizenship.
  • Consider the following: electoral photo identity cards, voters’ lists bearing petitioners’ names, land revenue receipts, certificates issued by the local panchayat, bank passbooks, permanent account number (PAN) cards and ration cards.
  • Each of these has been variously rejected as proof of citizenship.
  • What is more, according to the court, not only must a petitioner adduce documentary evidence, whatever that might actually be, establishing that their parents or ancestors were present on Indian soil prior to March 25, 1971 — a cut-off date distinct to Assam — but they must also independently validate those documents by securing the testimony of their issuing authorities.

Assam and Tribunals

  • The Foreigners’ Tribunals (FT), which work as quasi-judicial bodies, were originally created through an executive order made by the Union government in 1964.
  • Their task was to furnish opinions on whether persons referred to them were “foreigners” or not within the meaning ascribed to the term under the Foreigners Act, 1946.
  • This legislation, which was enacted by the colonial government with a view to regulating migration into India, defines a foreigner as any person who is not a citizen of India.
  • It also accords to the government a wide-ranging power to control the entry, exit and movement of foreigners to and within the territory of the country.
  • In Assam, the FTs have played a role unique to the State’s history.
  • The references made to the FTs in the State have arisen out of a mandate contained in the 1985 Assam Accord.
  • The agreement was a product of a student-driven movement against, among other things, immigration into the State following the declaration of Bangladesh’s independence on March 26, 1971.

Burden of proof

  • Ordinarily, under the Indian Evidence Act of 1872, the burden of proof in any court of law lies on the person who seeks to make a claim or assert a fact.
  • This would mean that before the FTs, it is the government, which avers that a person is a foreigner, on whom the burden ought to lie.
  • But Section 9 of the Foreigners Act reverses this burden.
  • It places the responsibility on every person referred to an FT by the State to establish before the Tribunal that he or she is, in fact, a citizen of India.
  • In 1983, the Union government, sensing the oppressive nature of the burden placed, introduced the Illegal Migrants (Determination by Tribunal) Act.
  • This law, which overrode the Foreigners Act, subtly shifted the onus to prove citizenship from the individual to the government.
  • But, in July 2005, the Supreme Court, in Sarbananda Sonowal vs Union of India, declared the legislation unconstitutional.
  • The Court found, through an almost cavalier consideration of history and facts, that migration into Assam constituted “external aggression” against the State, and, therefore, that the Central government had violated Article 355 of the Constitution.
  • Given this, the burden to establish citizenship, the Court held, ought to always rest on the individual.
  • It is this judgment in Sarbananda Sonowal that has since served as the fundamental premise on which the Gauhati High Court has ruled on various petitions made against the verdicts of the FTs.
  • But even assuming the burden ought to lie on the individual to establish her citizenship, these rulings could still benefit, as Madhav Khosla recently pointed out, by the outlining of a sensible test on what degree or level of proof ought to be sufficient to discharge the burden.
  • However, by holding, for example, that persons suspected of being foreigners ought to not only provide documentary evidence but also have those documents attested by the authority that issued them, the Court has foisted on the petitioners a standard that is virtually impossible to meet.

One of the Proposed Solutions

  • The Burden of Establishing citizenship might well lie on the individual, as the Foreigners Act stipulates, but once he or she has produced a basic set of documents that, on the face of things, make out a plausible claim, the onus ought to then shift to the State to rebut the evidence provided
  • Ultimately, as the Gauhati High Court has itself held, individuals are not expected to establish “beyond reasonable doubt” that they are citizens of India.
  • What is expected of them is to show on a balance of probabilities that they are not foreigners.
  • In such circumstances, the rational answer would be to allow the onus to shift to the State once the individual has met a basic threshold of proof.
  • This approach is, no doubt, far from perfect. In a country like ours, where the weakest and poorest among us are often denied access to basic goods, requiring individuals to produce documents to establish citizenship can by itself represent an onerous demand.
February 2024