In legal scholarship and practice, misrepresentation of basic information even by an accused cannot lead to imputations or subsequently, the awarding of a penalty.

There are several methodologies of cross-checking information, where a prima facie mismatch is not taken as a cognisable ground for conviction. A decorated Army officer and Kargil War veteran, former Subedar Mohammed Sanaullah was declared a foreigner who supposedly entered Assam after 25 March 1971.

Based on information inaccurately stated by Sanaullah pertaining to his date of birth and entry into the Army, a Foreigners’ Tribunal judge found anomalies in his statement. For example, Sanaullah, according to court records, stated his date of birth to be in 1967 and his year of joining the Army as 1978; while he actually joined the Army in 1987.

It seems an obvious typographical error. The judge stated, “If I consider it as the correct date, then again the question arises why the opposite party (Sanaullah) is not enrolled in the voter list of 1986, as already by then he had attained the age of 20 years. (sic)” It warrants recall that in 1986, the minimum age for enrolment of voters in India was 21 and only in 1988 was it reduced to 18 years.

So, going by the judgment that depended on inclusion in voter’s list as a critical piece of evidence for determination of citizenship, could a 19-year-old be included in the electoral rolls of 1986? It was reported in the local media of Assam that three persons, namely Mohammad Kurban Ali, Suwahan Ali and Ajmal Ali, supposedly witnesses for sub-inspector Chandramal Das, were used to frame Sanaullah as an FIR stated that their signatures were allegedly forged by the police officer concerned to produce a statement in their names.

In the police report, Sanaullah, the foreigner, is shown to be a “labourer” while Army man Sanaullah was implicated on the basis of that very same report by a Foreigners’ Tribunal. One Srimati Madhubala Mandal, 59, finds herself in an even graver situation. She has been sent to a detention camp in Kokrajhar after a Foreigners’ Tribunal implicated another Madhubala Namo Das as a foreigner.

Assam Police picked up Mandal as a declared foreigner in place of Das, who has a specially-abled girl child to take care of. Mandal had already spent three years in a detention camp and her case came to light only after Sanaullah’s case. In legal parlance, only those practices that fit into ends of justice without committing excesses on someone, who does not fit that bill, is considered as valid and justifiable. In other words, practices of ensuring justice must itself be justifiable in terms of whether it fits into the larger frame work of justice or not.

Whether a practice ensures right to fair trial and adequate right to defence without harming one is critical for upholding a certain practice of justice. As far as Foreigners’ Tribunals in Assam are concerned, the legal provision of putting the onus on the accused or suspect resulted in a situation of tribunals acting in a black and white manner without exploring the legal grey.

The legal grey is that many people declared as foreigners by tribunals have records to show that they are Indians, although in the process of trial, something went wrong as in the cases described above. The tribunals constituted under the Foreigners’ Tribunal order 1964 that operates with the Foreigners’ Act, 1946, retains the provisions of an antediluvian colonial era methodology of suspicion, which fails to take into account how the said act could be used by agencies to put someone into an arbitrary procedure of trial.

It does not take into account the Evidence Act, 1872 or Code of Civil Procedure or even the definition of who is not an illegal immigrant/foreigner as given in Expulsion of Illegal Immigrants’ Act, 1950. There seems to be a legal unilateralism built into the practices of the Foreigners’ Tribunals not manned by proper judicial officers. This unilateralism could be noted from the fact that going by the Foreigners’ Act, 1946, as applied after the Citizenship Act of 1955 came into force, it would be difficult to distinguish between people displaced due to “civil disturbances” in certain parts of India during Partition and an illegal immigrant/ infiltrator, who entered the country surreptitiously.

In the period between 1947 and 1971, all those who entered India and especially, Assam, due to various reasons of threat to life and property and civil and communal riots need to be protected under the Constitution. While a Foreigners’ Tribunal declares someone so, it cannot overlook the fact that just because one is not able to produce records, their right of protection after being displaced from affected parts of undivided India need not necessarily be removed by sending him or her to detention camps.

On the other hand, the Assam Accord naturalised those who entered the state before 25 March 1971. The sub-clause 7 (a) debars anything in the subsections (2) to (6) of clause 6A of the Citizenship Act, 1955 from being applied for those “who, immediately before commencement of Citizenship (Amendment) Act 1985, for year is a citizen of India.”

This, in effect, puts into question the Foreigners’ Tribunal’s decisions as the Citizenship Act, 1955 read with section 2 (b) of The Immigrants’(Expulsion from Assam) Act, 1950 explicitly debars deeming any person as “illegal immigrant” who is displaced due to civic disturbances or fear of the same. Indeed, a holistic reading of the Foreigners’ Act, 1946 read with other constitutional provisions will make the process of trial a fairer one for every suspect, who is Indian and yet subjected to the tag of being a foreigner.

The methodology prescribed in determining the “nationality” of a suspected “foreigner” by ascribing a country that “appears to be the closest” to a suspect, as per section 8 of the Foreigners’ Act, 1946, remains open to overinterpretation or underinterpretation as it happened in the cases of Sanaullah or Mandal.

Reliance upon, almost, an outdated act like the Foreigners’ Act, 1946, which suited the country at the time of Partition and early decades after Independence, is counter-intuitive to the contemporary expanded definition of nationality in terms of “people of Indian origin”. This, of course, is in harmony with Article 6(a) of the Constitution of India read with Article 21 and its contemporary elaboration, all of which probably does not gel well with rules of application of the letter and spirit of the Constitution in grey areas of determination of citizenship.

Especially, orders of the Government of India and Assam government that invoked section 3(2)(e) of the Foreigners’ Act, 1946 to restrict movement of foreigners and to ensure their physical availability for the purpose of deportation has been challenged in the Supreme Court of India as humanitarian concerns have been raised.

The SC advised conditional release of those in detention camps who served there for three years and were able to pay a security bond in an order dated 10 May 2019 of WP(C) No1045/2018. With such a legal architecture of identifying illegal immigrants in place, it is a matter of great concern that a large number of genuine Indians are getting implicated as “foreigners” due to their economic background, anomalies in paperwork and certain other glitches, both on the part of the individual and the system.

What remains further at stake is a harmonious reading of laws that defends personal dignity and right to life and follows the hallowed traditions of legal normativity, which is often getting eclipsed by an immediate legal positivism.

(The writer is a philosopher of law and human rights based in Shillong)