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2 Statelessness & Citizenship Rev. 112 (2020)
Identifying the 'Outsider': An Assessment of Foreigner Tribunals in the Indian State of Assam

handle is hein.journals/stlenctzr2 and id is 119 raw text is: 







  IDENTIFYING THE 'OUTSIDER': AN ASSESSMENT OF

  FOREIGNER TRIBUNALS IN THE INDIAN STATE OF

                                    ASSAM


                             TALHA   ABDUL  RAHMAN*


 The State ofAssam in the Union of India has a peculiar history of the movement of people from
 across India's international borders into Assam. There is no credible way to arrive at specific
 numbers. Arrival of people in Assam has become a point that has been abused by those in power
 to utilise local sentiments regarding the dilution of 'Assamese culture'. This article briefly
 discusses the timelines leading up to the preparation of the Assam's National Register of Citizens
 that presently excludes approximately 1.9 million residents. The citizenship status of those
 excluded is to be determined by Foreigners Tribunals ('FT) functioning under the Foreigners Act,
 1946  a post-Second World War and pre-Constitution legislation whose validity is also in doubt.
 This article examines the Foreigners Act, 1946, as well as the constitution and performance of the
 FTs with reference to the yardsticks of the rule of law and constitutional values. Towards this end,
 the article analyses the law discernible from the judgments of the Indian Courts as well as some
judgments of the Assam High Court and the FTs. It concludes by stating that the framework of
adjudication by FTs is not able to keep up with the promise of effective adjudication under the
Constitution of India. It calls for an urgent need for academic scrutiny of all aspects of the
citizenship verification process in India.

                               TABLE  OF CONTENTS

I    In tro d u ctio n ...........................................................................................................  1 12
II   Contextualising The Problem of the 'Outsider' in Assam.................................... 114
III  The Rule of Law  ................................................................................................... 119
IV   T h e F T in  A ssam ...................................................................................................  12 1
        A   E stablishm ent of the  FT ............................................................................ 12 1
        B   Selecting M em bers for the FT .................................................................. 124
        C   Applying  the Criteria of 'Judicial Experience' to the Selection Process. 126
        D   Lack  of Transparent Selection Process and Lack of Judicial Training..... 128
        E   Members   of FTs Lack Decisional Autonomy  .......................................... 129
V    Procedure Follow ed by FT s .................................................................................. 130
        A   Due  Process Guarantees Are Not Available in FTs.................................. 131
        B   FTs' Power  to Devise Their Own Procedure............................................ 133
VI   Conclusion: 'Designed to Exclude' ...................................................................... 136


                               I     INTRODUCTION

The  publication  of the National  Register of Citizens ('NRC')   in August  2019,
which  excluded  1.9 million persons in Assam,  India, from the list of citizens, has
given  rise to much   domestic   and international concern   regarding the  risk of
statelessness  and serious  violations of  other rights likely to ensue.  To  date,
however,   there has  been  no comprehensive analysis of the legitimacy of the


     Talha Abdul Rahman  (BA, LLB  (Hons) (NALSAR,  India), BCL (Oxon), Advocate on
     Record, Supreme Court of India, New Delhi. Visiting Fellow (2020), Peter McMullin Centre
     on Statelessness, Melbourne Law School, University of Melbourne. The author acknowledges
     that this work has immensely benefited from the Visiting Fellowship and support from Peter
     McMullin Centre on Statelessness, Melbourne Law School, University of Melbourne.

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