Explainer: What Do the MHA's Changes to 1964 Foreigners Tribunals Order Mean?

The amendments essentially chart procedural details to be adhered to while pursuing a case in foreigners tribunals.

New Delhi: On May 30, the Ministry of Home Affairs (MHA) issued a notification amending some clauses of the Foreigners (Tribunals) Order, 1964. The news made headlines, prompting renewed questions on cross-border migration and the process of deportation of persons deemed ‘foreigners’.

What did the 1964 order say, and how does the latest amendment change that? What will this mean for people? The Wire breaks it down.

The Foreigners (Tribunals) Order, 1964 was enacted by the Central government through the use of powers granted under Section 3 of the Foreigners Act, 1946. Though the order, issued by the Ministry of Home Affairs on September 23, 1964, had a country-wide jurisdiction, it was intended for the state of Assam, for all practical purposes.

After the Registrar General of India in his report on the 1961 Census said 2,20,691 ‘infiltrants’ had entered Assam from East Pakistan – a fact backed by intelligence reports – a police drive was initiated in the border state in 1962 to detect and deport such infiltrators. This led to a hue and cry. Many influential Congress politicians from the state’s Bengali Muslim community opposed it, stating that several genuine citizens were also being deported in the process.

Also read: Expanding Foreigners Tribunals May Be Amit Shah’s First Step to Pushing NRC Across India

According to a white paper published by the Assam government in 2012 on the foreigners’ issue, the Pakistan government had also threatened to go to the United Nations with the issue. Hostilities between the neighbours had been building up then, ahead of the 1965 war.

The Centre, then, said that such persons would need to go through a judicial process before being deported. Thus came the tribunal order.

Home ministry

The North Block of the Central Secretariat which houses the Ministry of Home Affairs. Source: PTI

Following the order, four tribunals were set up in Assam. By 1968, the number of tribunals went up to nine. After the Indira Gandhi government brought the Illegal (Migrant) Determination Act – known as the IMDT Act – in 1983, even more tribunals were set up.

In 2005, the Supreme Court set aside the Act and brought the Tribunals yet again under the Foreigners Act. In 2014, the apex court asked the government to further increase the number of Tribunals from 36 to 100. Recently, the Centre said it would take the number up to 1,000, most likely to handle the increased number of appeals after the final National Register of Citizens (NRC) is published on July 31.

What were the changes made to the 1964 order in the May 30 amendment?

Named the Foreigners (Tribunals) Amendment Order, 2019, the changes essentially chart procedural details to be adhered to while pursuing a case in foreigners tribunals, both by the appellant and the respondent.

To begin with, it replaces the words “The central government,” mentioned in the sub para (1) of the 1964 order, with “the central government or the state government or the union territory administration or the district collector or the district magistrate may”.

So if you read the sub para (1) after these changes were effected, it would go like this:

The central government or the state government or the union territory administration or the district collector or the district magistrate may by order, refer the question as to whether a person is not a foreigner within the meaning of the Foreigners Act 1946 to a tribunal to be constituted for the purpose, for its opinion.

This essentially means that the MHA has now bestowed its powers to refer a case of a suspected foreigner to a tribunal constituted for the purpose on a state administration too. Until now, only the Centre had the power to deal with that question under the Foreigners Act. However, any state, by dint of the 1964 order which had countrywide reach, could get the Central go-ahead to set up such tribunals. State governments have, however, traditionally continued to refer such cases to local courts as additional funds were needed to set up such tribunals. In Assam, the MHA itself provided funds to set up the tribunals.

Here, officials of Nalbari are seen undertaking field visits during the NRC updation process.

In this photo uploaded to the Assam NRC website in 2017, the district commissioner and superintendent of police of Nalbari are seen undertaking field visits during the NRC updation process. Source: nrcassam.nic.in

Assam also differed on another count. Through two executive orders issued in 1961 and 1962, the Centre had entrusted its power under the Act to the superintendents of police (SPs) and district commissioners (in charge of police) of Assam. Thus SPs who head state border police units in every district were empowered to ‘detect’ suspected foreigners. Thus, this right to detect and deport alleged infiltrators existed in Assam well before the 1964 order. The 1964 order only facilitated the formation of tribunals which could take suspected foreigners through a judicial process.

In as early as 1962, border police units were set up in Assam by the MHA in 1962 to “create a security screen” that would act as a check on alleged infiltrators taking shelter among immigrant communities mainly near the border.

Has any other change been brought to the 1964 order by the May 30 notification?

Three more changes were made to the existing order, all of which have been notified in the Gazette of India. The second change also has to do with wording, which changes from “rule 16F of the Citizenship Rules, 1956”, mentioned in sub-para 1a, to “rule 19 of the Citizenship Rules, 2009”.

This change is only with regard to Clause 6A of the Citizenship Act, 1955. So for all purposes, this change was inserted only for Assam. Clause 6A of the Act looks at the Assam Accord, which brought in an exclusive citizenship cut-off date for the state, unlike for any other part of the country. So this change is not applicable to all states and their administration even though, as mentioned earlier, the 1964 order does apply to the whole country.

What are the other two changes?

Two new sections were inserted into Clause 3 of the 1964 order, due to which the existing Clause 3A has now become Clause 3C. These two insertions outline a comprehensive procedure for pursing a case in the tribunals. What basically comes across from 17 sub-clauses added to 3A is that the order now spells out how to go about disposing off cases of appeal. The earlier Clause 3A (now Clause 3C) only laid down the basic procedure for a tribunal to operate on while dealing with a case of a suspected foreigner.

The insertions have also empowered district magistrates (DMs) to refer a suspected foreigner case to a tribunal, based on her own judgement or in the case of those whose citizenship is under question and who have still not appealed to a tribunal within two months of a case registered against them.

The latter provision is as per the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.

If you consider the case of Assam again, until now, only the SP (Border) could refer such cases to the tribunals. Empowering the DMs to also be able to do so is a new feature. The Election Commission of India (ECI) can also refer cases of D or Doubtful voters to the local SP, who then refers them to a tribunal to verify their citizenship. The ECI’s D voter category, to which people may be added while the electoral rolls are being updates, is also exclusive to Assam and was introduced in 1997.

The May 30 insertions in Clause 3 also state that the DMs are the custodians of all official documents and have the authority to submit the required documents on demand to the tribunals. It means, as in the case of the NRC 1951, the updated NRC will need to be submitted by the NRC authorities to the relevant DM’s office. The DM, thus, is the NRC’s custodian. This could also be the reason why DMs have been empowered to refer a suspected case to the tribunals.

After the tribunals were set up, documents related to NRC 1951 were gradually shifted from the DMs offices to district police stations on the ground that the border police might have to refer to them while inspecting suspected foreigners’ cases. Aside from the Foreigners Act, the NRC 1951 was for a long time an important reference document as the Citizenship Act came only in 1955.

What do these two insertions denote?

They essentially seem to have been codified to outline the bureaucratic procedures to be followed while dealing with those who will be left out of the final NRC to be published by July 31. What the clause 3A spells out is the time frame – 120 days – within which the tribunals would have to give their judgment to an appeal.

These amendments are also a step to link the two ongoing official efforts put in place with the purpose of identifying who was a citizen of Assam before March 24, 1971 – the NRC and the Foreigners Tribunal. Those left out of the NRC would have to approach the tribunals and it is for them that the May 30 amendments have been effected.

Supreme Court of India

Petitioners who have argued in the Supreme Court against Aadhaar and its efforts to compromise an individual’s privacy have also expressed concern over possible misuse of NPR data. Credit: PTI

Thus exclusion from the NRC would not automatically deem one a foreigner. The tribunals, which are quasi-judicial bodies, would have to then take a call. If an appellant is termed a foreigner by a tribunal, she has the option of appealing to the high court and then, the Supreme Court.

Does the May 30 amendment widen the scope of setting up tribunals outside of Assam?

As mentioned above, the 1964 order was not unique to Assam and was meant for the entire country. By default, any change made to the order applies to the whole country, even though tribunals were set up only in Assam.

The MHA clarification on June 11 to some media reports about widening the ambit of the tribunals outside of Assam through the amendment also stated, “Since the foreigners tribunals under this order have been established only in Assam and in no other state of the country, this amendment in effect is going to be relevant only to Assam”.

Was the 1964 order amended prior to May 30?

On December 10, 2013, the UPA II government brought in amendments to the Foreigners Tribunal Order 1964. As per that amendment, termed Foreigners Tribunals Amendment Order, 1964, the changes were effected also in Para 3 to add details to procedures to be followed by the Tribunals while handling a case.

Also read: Rhetoric Aplenty on ‘Foreigners’ in Assam but Neither State nor SC Has Viable Solution

Was the NRC 1951 an exclusive process carried out only in Assam?

The NRC 1951 was an exclusive process meant for Assam. Now, it is being updated through a process monitored by the Supreme Court. The MHA notification issued on December 6, 2013 to roll out the updation process specifically mentioned that the updation be carried out by the Registrar General of India (RGI) only in Assam. Unlike the Census, which takes place through door-to-door visits, the NRC update happens through applications. This means that one can choose to not apply to be a part of the NRC if they are permanent residents of other states but are residing in Assam temporarily.

Aside from this exclusive process, the RGI’s office, since 2010, has been constituting a National Register of Population (NPR). The NPR contains more details about an individual than what is needed for an Aadhaar card. Data for the NPR was reportedly collected during the Census 2011 to identify ‘illegal immigrants’ and make a register of genuine residents. Essentially, the NPR, when complete, will also be a national register of citizens.

The NPR was updated in 2015 and the process to digitise it is on. The NPR website says it is mandatory for every ‘usual resident’ of India to register with the NPR. The ostensible aim behind it is to issue a unique national identity card to residents. Petitioners who have argued in the Supreme Court against Aadhaar and its efforts to compromise an individual’s privacy have also expressed concern over possible misuse of NPR data.

Note: An earlier version of the story incorrectly mentioned that this is the first time that the 1964 order has been amended. The story has since been updated.