India’s Ministry of Home Affairs, on May 30, amended the Foreigners (Tribunals) Order 1964 to bring the whole country under the controversial Foreigner Tribunals regime. And this move can have far-reaching consequences regarding New Delhi’s approach to immigrants and refugees.

Previously, these quasi-judicial tribunals were unique to the northeast Indian state of Assam, which is currently undergoing a Supreme Court-mandated headcount exercise to identify “illegal immigrants” from neighboring Bangladesh through the National Register of Citizens (NRC). 

The amendment comes as one of the first major policy decisions taken by the new Home Minister, Amit Shah, a long-time aide of Prime Minister Narendra Modi and the key strategist behind the Bharatiya Janata Party’s landslide mandate in the 2019 general election.

Draconian citizenship determination regime

The citizenship determination process in Assam has been singling out “foreigners” and sending them to detention camps for more than a decade now. Of the various components of Assam’s “foreigner detection” regime, the Foreigner Tribunals, set up in 2005 under the Foreigners Act 1946, carry the most weight. While 100 such tribunals are currently operational in the state, the federal government recently proposed to set up 1000 additional ones across the country.

The Assam-based tribunals issue summonses to suspected foreigners based on references from the state’s border police wing, the Election Commission’s “doubtful-voter” tag and, now, the NRC. Once pronounced guilty, the “foreigners” are almost always sent to detention camps since deportation to Bangladesh is not possible due to the absence of a formal agreement with Dhaka.

While the tribunal regime might be legally justifiable, it has come under fire from various quarters for selectively targeting Assam’s linguistic minorities, largely Bengalis (both Muslims and Hindus), and allegedly sending genuine Indian citizens to detention camps. Local Bengali civil society organizations have claimed that most of the detained convicts are Bengali-speaking Hindu and Muslim citizens. 

More recently, the Assam Border Police arrested a retired honorary captain of the Indian Army, Mohammad Sanaullah. He was declared a “foreigner” and sent to a detention camp based on an earlier tribunal verdict. Although he was released on bail ten days later, the case reflects the absurdity of the state’s citizenship determination process.

Others argue that the tribunals have sent people to detention camps not because they are “illegal immigrants” under the terms of the current law, but because they were unable to furnish the requisite documentation to prove their Indian citizenship beyond reasonable doubt.

Several international organizations have also expressed concern about this. In June 2018, three senior United Nations human rights officials, in a letter to the then minister of external affairs, Sushma Swaraj, wrote: “Bengali Muslims continue to be disproportionately affected and targeted by Foreigners’ Tribunals, as most persons asked to prove their citizenship before Tribunals reportedly lack the necessary means to do so.”

The tribunals have gained notoriety in particular for their sheer arbitrariness in delivering judgments. Apart from reports on doling out guilty verdicts in a rampant fashion and often on minute technical grounds – simply to meet government-set deadlines – the tribunal judges have also been conducting ex parte trials without the physical presence of the accused. 

In a startling revelation in September 2018, one of the tribunals in Assam, following a rare self-investigation, revealed that Indian citizens were being declared foreigners allegedly with an aim to mint money. But the damning revelation received scant public attention.

Unlike in other courts, the burden of proof in these tribunals lies squarely on the suspected “foreigner,” making the entire Foreigner Tribunal regime seem a direct affront to the principles of  justice.

Tribunals get more power

The latest Home Ministry order, instead of fixing the arbitrariness, gives more unchecked authority to the tribunals.  One of the newly added clauses to the principal order gives the Foreigner Tribunals “the power to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.” The new amendment also allows tribunal judges to accept or reject appeals based on the “merit” of the appeal, as understood by them.

This essentially translates to the tribunals having carte blanche to create their own rules in the trial, assessment and appeal processes, thus making it easier for the judges to meet pre-set deadlines and get away with unreasonable verdicts without any third-party scrutiny.

Instead of plugging the critical lapses in the Foreigner Tribunal regime, India’s Supreme Court has only intervened, whenever it has, to reprimand the federal and state governments for not deporting enough foreigners.

In March, a Supreme Court bench headed by Chief Justice Ranjan Gogoi rapped the federal and Assam state governments for not being bothered enough about ”tackling the problem of external aggression being faced by the bordering state in the form of illegal immigrants.” Gogoi seemed to say that the tribunals should ideally be convicting, detaining or deporting a higher number of suspected foreigners than they are right now.

Earlier in April, Gogoi had threatened to initiate contempt proceedings against Assam chief secretary Alok Kumar for suggesting that those in detention for five years or more should be released after furnishing bonds and biometrics. Although a month later, the bench sanctioned the conditional release of those detained for three or more years, the court’s overall approach is highly troubling.

Such reports show that once Foreigner Tribunals are set up across the country, the logical progression in most cases of guilty verdicts may be detention.

Detention centers or concentration camps?

According to a submission made by the federal government before the Supreme Court in February, 938 persons are lodged in six detention camps in Assam, out of which the tribunals have deemed 823 foreigners. Evidently, at least 115 of them are in detention without any conviction. Construction of a large new stand-alone camp is currently underway.

Not unlike most detention camps around the world, Assam’s foreigner camps also reek of systemic human rights abuse and unconstitutional practice. It is not uncommon for a detainee in one of these camps to languish for years without either prospect of trial or benefit of legal representation.

In a 2017-18 study sanctioned by the National Human Rights Commission, noted human rights activist Harsh Mander outlined in great detail the inhumane and restrictive conditions in which convicted “foreigners” are kept in these camps.

In the recent case of Sanaullah’s detention, once released on bail the former Indian Army member acknowledged that even the most difficult of military postings had not prepared him for the detention camp. “They call it a [detention] center but it is a prison. Everyone knows the number of years that he or she will have to serve for a particular crime, but those in detention centers have no idea when they will be let off or what their fate holds,” Sanaullah told the media.

Several custodial deaths of detainees have also been reported over the last year including suicides, which local researchers have directly linked to the NRC process, tribunal verdicts and detention camps.

There are fears that the new Home Ministry order sets the ground for the desolate possibility that detention camps may become the new normal. It has the potential to universalize the deeply undemocratic notion of prolonged confinement without trial, fostering new forms of institutional vigilantism. That will also be unconstitutional.