A Panacea Bad in Law (A Study into the Origin, Nature and Constitutional Validity of Foreigners Tribunals)

 1. Introduction

Human migration is a natural phenomenon involving transitory movement of people from one place to another. Migration is motivated by a myriad of socio-economic factors but generally, it tends to be financially upward, from poorer to richer countries. Ethnic, linguistic and religious commonalities are relevant considerations driving migration. People have always migrated to lands in search of food, shelter, freedom, security and a better lifestyle and they usually chose lands where they could identify socially, linguistically and culturally with the local population.

Migrants have made a discernible impact on the socio-economic, cultural as well as the political fabric of their destinations. The effect of migration has been varied. While on one hand, migrants are seen as having enriched the socio-economic and cultural aspects of the countries they have migrated to, migration has also fuelled violence and political disturbance with the indigenous population often fighting for preservation of their local identity, language and culture.

Illegal migration is a whole different matter altogether. Migration of people into a country in violation of the immigration laws of that country, or the continued residence without the legal right to live in that country has come to mean illegal migration. Illegal crossing over of the international border by the migrants has been viewed as the loss of control of the State over its borders and a challenge to its sovereignty.

2. Statutory history

Illegal migration into India is not a new phenomenon. Even in British India, laws had to be enacted to provide for the imposition of restrictions on the entry of foreigners into British India, their presence therein and their departure therefrom.

2.1 Foreigners Act

The first enactment governing foreigners in the then British India was the Foreigners Act, 18641, which provided for the expulsion of foreigners and their apprehension, detention pending removal and for a ban on their entry into India after removal. This subsequently gave way to the Foreigners Ordinance which was promulgated in 1939 following World War II, which was then replaced by the Foreigners Act, 1940. Thereafter, the legislature enacted the Foreigners Act, 19462 which repealed the 1940 Act. All matters pertaining to foreigners in India are now governed by the Foreigners Act of 1946.

2.2 Immigrants (Expulsion from Assam) Act, 1950

Assam, whether under British Raj or after independence, has seen a huge influx of migrants. During British Raj, there was a huge flow of migrants from Bihar, Orissa, Bengal and other British Provinces to the tea plantations, railways and oil facilities in Assam. Similarly, the availability of cultivable waste lands attracted the peasants from the densely populated neighbouring districts of Bengal like Mymensingh, Bogra, Rangpur, etc. who migrated to Assam and settled in vacant lands of Assam.

Immigration into Assam continued even after independence of India mostly from East Pakistan (now Bangladesh) especially following the partition and the ensuing communal fights.3 In view of the threat posed by unabated immigration, in 1950, Parliament made an enactment called the Immigrants (Expulsion from Assam) Act, 19504.

The Statement of Objects and Reasons of the Act states:

During the last few months a serious situation had arisen from the immigration of a very large number of East Bengal residents into Assam. Such large migration is disturbing the economy of the Province, besides giving rise to a serious law and order problem. The Bill seeks to confer necessary powers on the Central Government to deal with the situation.

Section 2 of the said Act5 provides that the Central Government may direct any person or class of persons, who are ordinarily residents in any place outside India and who came into Assam, to remove themselves either from India or Assam.

2.3 Nehru-Liaquat Agreement

A month after the notification of the Act, the Nehru-Liaquat Agreement was signed by the Governments of India and Pakistan and it was agreed that there shall be freedom of movement and protection in transit for migrants from East Bengal, West Bengal, Assam and Tripura; and the immovable property of a migrant shall not be disturbed and it shall be returned to him provided he returns to his original home by 31-12-1950.

2.4 Constitution of India

The Constitution of India had also come into effect by that time. Articles 5 to 116 of the Constitution of India deal with the citizenship of the country.

Article 57 recognises three categories of people to be citizens of India at the time of commencement of the Constitution—

(a) a person born in the territory of India;

(b) a person either of whose parents was born in the territory of India; and

(c) a person who has been ordinarily resident in the territory of India for a period not less than five years preceding the commencement of the Constitution.

Article 68 is of importance as it recognises the citizenship of a certain class of persons who migrated from Pakistan to India.

Article 119 expressly authorises Parliament to make law with respect to acquisition or termination of citizenship and all other matters relating to citizenship.

2.5 Citizenship Act, 1955

In exercise of the power under Article 11, Parliament passed the Citizenship Act, 195510. The Citizenship Act, 1955 was enacted by the Government of India on 30-12-1955 to provide for the acquisition and determination of Indian citizenship. The 1955 Act, when enacted, provided 5 broad ways for the acquisition of citizenship in India:

• Citizenship by birth, under Section 3 of Act11;
• Citizenship by descent, under Section 4 of the Act12;
• Citizenship by registration, under Section 5 of the Act13;
• Citizenship by naturalisation, under Section 6 of the Act14; and
• Citizenship by incorporation of territory, under Section 7 of the Act15.

2.6 The Foreigners (Tribunals) Order, 1964

However, the effectiveness of the drive against illegal immigration especially from East Pakistan was encumbered by the fact that passport and visa regulations between India came into operation only from October 1952 and the definition of a foreigner as provided in Section 2(a) of the Foreigners Act16 could cover a Pakistani national only following the amendment in 1957.

The Registrar General of Census in his report on the 1961 census assessed that 2,20,691 infiltrators had entered Assam. In the 1961-1966 period, around 1,78,952 infiltrators were either deported or left India but 40,000 did not17. The drive against the infiltrators continued but by this time Pakistan had threatened to take the issue of deportation to the United Nations.

Hence, the Central Government decided that a judicial authority needed to be set up to examine every individual case before eviction from India. In order to introduce a judicial element in the procedure of eviction of Pakistani infiltrators so that it could stand scrutiny in the international forum, the Foreigners (Tribunals) Order, 196418 was notified by the Central Government by invoking Section 319 of the Foreigners Act of 194620. Para 2(1) of the Order originally read as follows:

The Central Government may by order, refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946  to a Tribunal to be constituted for the purpose, for its opinion.

2.7 Indira-Mujib Pact

The 1971 India-Pakistan war led to the creation of the nation of Bangladesh out of territories that had earlier made up East Pakistan. The Indian Prime Minister, Indira Gandhi and the Bangladeshi Prime Minister, Sheikh Mujib-urRehman made an agreement in Dhaka known as the Indira-Mujib Pact, 1972 which defines the status of illegal migrants entering into Assam (India).

Under the Indira-Mujib Pact, 1972 (which was not renewed after its expiry in 1997) India agreed to take responsibility of all illegal migrants who had entered Assam (India) on or before 24-3-1971 from East Pakistan.

2.8 The Illegal Migrants (Determination by Tribunals) Act, 1983

However, an anti-migration sentiment had started to gather momentum in Assam around this time. In the year 1979, following a by-election after the death of Hiralal Patowary, M.P. in the Mangaldoi constituency of Assam, the voter lists were revised and it revealed names of a large number of suspected foreigners. This along with many other apprehensions in the minds of the local Assamese population culminated into the Anti-Foreigners Agitation, commonly known as Assam Movement.

During the continuance of the Movement, the Illegal Migrants (Determination by Tribunals) Act, 198321 (“the IMDT Act”, in short) was enacted and it came into force on 25-12-1983. The Act aimed to provide for the establishment of tribunals for the determination, in a fair manner, of the question whether a person is an illegal migrant to enable the Central Government to expel illegal migrants from India and for matters connected therewith or incidental thereto.

The IMDT Act had an overriding effect on the Passport (Entry into India) Act, 192022, the Foreigners Act, 1946, the Immigrants (Expulsion from Assam) Act, 1950, the Passports Act, 196723 and any rule or order made under any of the said Acts.24

Section 525 thereof provided for establishment of the Illegal Migrants (Determination) Tribunals. Section 826, on the other hand, provided for applications to the tribunals, either by the Central Government as to whether a person was an illegal migrant or by a person concerned seeking a decision that he was not an illegal migrant. Section 8-A27 allowed a person to make an application to the Central Government, for decision by a tribunal, as to whether the person whose name and other particulars were given in the application, was or was not an illegal migrant. And the Central Government could either reject the application or refer it to a tribunal for decision.

The IMDT Act was seen by a large section of the society to have been purposefully enacted to give shelter and protection to illegal immigrants who had come from Bangladesh following 25-3-1971 rather than to identify and deport them. Under the Foreigners Act, 1946, the burden of proof was on the alleged foreigner to prove that he is not a foreigner28. But under the IMDT Act, the burden of proof was on the complainant to prove that the alleged person is a foreigner. Besides this a complainant must be a person of a specified locality where the alleged foreigner resided.

2.9 Assam Accord

The Assam Movement, eventually, came to a close with the signing of a Memorandum of Settlement dated 15-8-1985 entered into between All Assam Students’ Union (AASU) and the Union of India and the State of Assam, which is commonly known as “Assam Accord”. Clause 5 of the Assam Accord, which is relevant to this paper, is reproduced below:

Foreigners Issue

5.1. For purposes of detection and deletion of foreigners, 1-1-1966 shall be the base date and year.

5.2. All persons who came to Assam prior to 1-1-1966, including those amongst them whose names appeared on the electoral rolls used in 1967 elections, shall be regularised.

5.3. Foreigners who came to Assam after 1-1-1966 (inclusive) and up to 24-3-1971 shall be detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964.

5.4. Names of foreigners so detected will be deleted from the electoral rolls in force. Such persons will be required to register themselves before the Registration Officers of the respective districts in accordance with the provisions of the Registration of Foreigners Act, 193929 and the Registration of Foreigners Rules, 1939.

5.5. For this purpose, the Government of India will undertake suitable strengthening of the governmental machinery.

5.6. On the expiry of a period of ten years following the date of detection, the names of all such persons which have been deleted from the electoral rolls shall be restored.

5.7. All persons who were expelled earlier, but have since re-entered illegally into Assam, shall be expelled.

5.8. Foreigners who came to Assam on or after 25-3-1971 shall continue to be detected, deleted and expelled in accordance with law. Immediate and practical steps shall be taken to expel such foreigners.

5.9. The Government will give due consideration to certain difficulties expressed by the AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983.

2.10 Amendment of Citizenship Act

Pursuant to this Accord, the Citizenship Act, 1955 was amended30 and Section 6-A31 was inserted with the heading “Special provisions as to citizenship of persons covered by the Assam Accord”.

Sub-sections (1), (2) and (3), being relevant to this paper, are reproduced below:

6-A. Special provisions as to citizenship of persons covered by the Assam Accord.—(1) For the purposes of this section—

(a) “Assam” means the territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Act, 1985;

(b) “detected to be a foreigner” means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 by a Tribunal constituted under the said Order;

(c) “specified territory” means the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985;

(d) a person shall be deemed to be of Indian origin, if he, or either of his parents or any of his grandparents was born in undivided India;

(e) a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opinion to the effect that he is a foreigner to the officer or authority concerned.

(2) Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the 1st day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day of January, 1966.

(3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who—

(a) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and

(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and

(c) has been detected to be a foreigner,

shall register himself in accordance with the rules made by the Central Government in this behalf under Section 1832 with such authority (hereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any assembly or parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom.

Explanation.—In the case of every person seeking registration under this sub-section, the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such person to be a foreigner, shall be deemed to be sufficient proof of the requirement under clause (c) of this sub-section and if any question arises as to whether such person complies with any other requirement under this sub-section, the registering authority shall,—

• if such opinion contains a finding with respect to such other requirement, decide the question in conformity with such finding;
• if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal constituted under the said Order having jurisdiction in accordance with such rules as the Central Government may make in this behalf under Section 18 and decide the question in conformity with the opinion received on such reference.

2.11 Amendment of the Foreigners (Tribunals) Order, 1964

On 15-1-1986, the Foreigners (Tribunals) Order was also amended33 and Para 3(1-A) was inserted therein which reads as:

The Tribunal shall, before giving its opinion on the question referred to in sub-para (1-A) of Para 2, give the person in respect of whom the opinion is sought, a reasonable opportunity to represent his case.

2.12 The ­Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003

The Central Government, pursuant to its rule-making power conferred upon it by Section 18 of the Citizenship Act of 1955, notified the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 200334. Rule 4-A thereof which provides for special provisions as to National Register of Indian Citizens in the State of Assam was incorporated into the Rules in 200935. The Schedule to the Rules of 200336 lists these special provisions.

As per Para 2(1)(a) of the Schedule, the District Magistrate shall cause to be published the copies of the National Register of Citizens, 1951 and electoral rolls up to the midnight of  24^th day of March, 1971, as available, in sufficient numbers and publish it and send the same to the Local Registrar of Citizen Registration for wide circulation and public inspection in each village and ward. As per Para 2(2), the Local Registrar of Citizen Registration shall receive the filled up application forms, at the same place where the applications are issued, and issue the receipt thereof to the applicant. Paras 2(3), 3 and 4 mandate scrutiny of the applications and after their verification, preparation of a consolidated list thereof.  Rule 6 provides that the Local Registrar of Citizen Registration shall deal with claims and objections pertaining to non-appearance of names in the National Register of Citizens after giving the claimant or objector opportunity of filing documents and of being heard. Para 7 provides that the Local Registrar of Citizen Registration shall, after the disposal of claims and the objections prepare and publish a supplementary list for inclusion or deletion of names, as the case may be, and thereafter, the Registrar General of Citizens Registration shall publish the final National Register of Indian Citizens in the State of Assam.

It is, however, Para 8 which is pertinent to this paper. The same reads as follows:

Any person, not satisfied with the outcome of the decisions of the claims and objections under Para 7, may prefer an appeal, before the designated Tribunal constituted under the Foreigners (Tribunals) Order, 1964 within a period of sixty days from the date of such order, and or the disposal of appeal by the Tribunals the names shall be included or deleted, as the case may be, in the National Register of Indian Citizens in the State of Assam.37

2.13 IMDT Act Struck Down

Meanwhile, in Sarbananda Sonowal v. Union of India38 [hereinafter referred to as “Sarbananda (1)”], the Supreme Court declared the IMDT Act and the Rules made thereunder as ultra vires the Constitution and struck them down and gave a consequential declaration that the tribunals, constituted under the said Act, shall cease to function with a further direction that all cases pending before the tribunals constituted under the Act shall stand transferred to the tribunals constituted under the Foreigners (Tribunals) Order, 1964.

Following this, however, on 10-2-2006, the Central Government amended the Foreigners (Tribunals) Order, 1964 and made it inapplicable to the State of Assam. Simultaneously, the Central Government also notified the Foreigners (Tribunals for Assam) Order, 2006 for the State of Assam39. Para 2 thereof provided for the constitution of Foreigners Tribunals for the State of Assam. However, the Supreme Court in Sarbananda Sonowal (2) v. Union of India40 [hereinafter referred to as “Sarbananda (2)”] struck down the amendment to the 1964 Order terming it unreasonable and arbitrary and violating Article 14 of the Constitution41. The Supreme Court observed that there was no rationale for the separate treatment of Assam. The Supreme Court saw this as an attempt by way of subordinate legislation to nullify the mandamus issued by it in Sarbananda (1)42. In the end, the Supreme Court quashed the 2006 Order.

2.14 Amendment of the Foreigners (Tribunals) Order

Changes, however, continued to be made in the Foreigners (Tribunals) Order of 1964. Para 3 thereof had originally laid down the procedure for the functioning of the Foreigners Tribunals. This was amended in 201343. It now reads as follows:

3. 3. Procedure for disposal of questions.—(1) The Tribunal shall serve on the person to whom the question relates, a copy of the main grounds on which he or she is alleged to be a foreigner and give him a reasonable opportunity of representation and producing evidence in support of his case and after considering such evidence as may be produced and after hearing such persons as may desire to be heard, the Tribunal shall submit its opinion to the officer or authority specified in this behalf in the order of reference.

(2) The Foreigners Tribunal shall serve a show-cause notice on the person to whom the question relates, that is, the proceedee.

(3) The notice referred to in sub-para (2) shall be served within ten days of receipt of the reference of such question by the Central Government or any competent authority.

(4) The notice shall be served in English and also in the official language of the State indicating that the burden is on the proceedee to prove that he or she is not a foreigner.

(5)(a) The notice shall be served at the address where the proceedee last resided or reportedly resides or works for gain, and in case of change of place of residence, which has been duly intimated in writing to the investigating agency by the alleged person, it shall be served at such changed address by the Foreigners Tribunal;

• if the proceedee is not found at the address at the time of service of notice, the notice may be served on any adult member of the family of the proceedee and it shall be deemed to be served on the proceedee;
• where the notice is served on the adult member of the family of the proceedee, the process server shall obtain the signature or thumb impression of the adult member on the duplicate of the notice as a token of proof of the service;
• if the adult member of the family of the proceedee refuses to put a signature or the thumb impression, as the case may be, the process server shall report the same to the Foreigners Tribunals;
• if the proceedee or an available adult member of his or her family refuses to accept the notice, the process server shall give a report to the Foreigners Tribunal in that regard along with the name and address of a person of the locality, who was present at the time of making such an effort to get the notices served, provided such person is available and willing to be a witness to such service and the process server shall obtain the signature or thumb impression of such witness, if he or she is present and willing to sign or put his or her thumb impression, as the case may be;
• if the proceedee has changed the place of residence or place of work, without intimation to the investigating agency, the process server shall affix a copy of the notice on the outer door or some other conspicuous part of the house in which the proceedee ordinarily resides or last resided or reportedly resided or personally worked for gain or carries on business, and shall return the original to the Foreigners Tribunal from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed;
• where the proceedee or any adult member of his or her family or her is not found at the residence, a copy of the notice shall be pasted in a conspicuous place of his or her residence, witnessed by one respectable person of the locality, subject to his or her availability and willingness to be a witness in that regard and the process server shall obtain the signature or the thumb impression of that person in the manner in which such service is affected;
• where the proceedee resides outside the jurisdiction of the Foreigners Tribunal, the notice shall be sent for service to the officer incharge of the police station within whose jurisdiction the proceedee resides or last resided or is last known to have resided or worked for gain and the process server shall then cause the service of notice in the manner as provided hereinabove;
• if no person is available or willing to be the witness of service of notice or refuses to put his or her signature or thumb impression the process server shall file a signed certificate or verification to that effect, which shall be sufficient proof of such non-availability, unwillingness and refusal;
• on receipt of the signed certificate or verification referred to in clause (i) the Foreigners Tribunals shall return such references with such directions as it thinks fit to the competent authority for tracing out the proceedee and produce before the said Tribunal.

(6) Wh­ere the proceedee appears or is brought before the Foreigners Tribunal and he produces the documents in support of his claim the Foreigners Tribunal may release such person on bail and decide the matter accordingly.

(7) ln case where notice is duly served, the proceedee shall appear before the Foreigners Tribunal in person or by a counsel engaged by him or her, as the ease may be, on every hearing before the Foreigners Tribunal.

(8) The Foreigners Tribunal shall give the proceedee ten days’ time to give reply to the show-cause notice and further ten days’ time to produce evidence in support of his or her case.

(9) The Foreigners Tribunal may refuse a prayer for examination of witnesses on Commission for production of documents if, in the opinion of the Foreigners Tribunal, such prayer is made to delay the proceedings.

(10) The Foreigners Tribunal shall take such evidence as may be produced by the concerned Superintendent of Police.

(11) The Foreigners Tribunal shall hear such persons as, in its opinion, are required to be heard.

(12) The Foreigners Tribunal may grant adjournment of the case on any plea sparingly and for reasons to be recorded in writing.

(13) Where the proceedee fails to produce any proof in support of his or her claim that he or she is not a foreigner and also not able to arrange for bail in respect of his or her claim, the proceedee shall be detained and kept in internment or detention centre.

(14) The Foreigners Tribunal shall dispose of the case within a period of sixty days of the receipt of the reference from the competent authority.

(15) After the case has been heard, the Foreigners Tribunal shall submit its opinion as soon thereafter as may be practicable, to the officer or the authority specified in this behalf in the order of reference.

(16) The final order of the Foreigners Tribunal shall contain its opinion on the question referred to which shall be a concise statement of facts and the conclusion.

Para 3-A was also inserted in the Foreigners (Tribunals) Order, 1964 by the Amendment of 2013 to provide for setting aside an ex parte order. The same reads:

3-A. Procedure for setting aside ex parte order.—(1) Where the Foreigners Tribunal has passed an ex parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners Tribunal, it may on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly.

(2) The proceedee may file an application to the Foreigners Tribunal within thirty days to review the decision of the Foreigners Tribunal claiming that he is not a foreigner and Foreigners Tribunals may review its decision within thirty days of the receipt of such application and decide the case on merits.

(3) Subject to the provisions of this Order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time-bound manner.44

Following the publication of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 200345, the Foreigners (Tribunals) Order of 1964 was again amended in 2019.

Para 3-A was renumbered as 3-C. Paras 1-B, 3-A and 3-B were inserted in the Foreigners (Tribunals) Order of 196446. The same are as follows:

(1-B) Any person referred to in Para 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 may prefer an appeal, on the terms and conditions specified therein, before the designated Tribunal constituted under this Order.

3-A. Procedure for disposal of appeal referred to in sub-para (1-B) of Paragraph 2.— (1) While preferring an appeal within the period of one hundred twenty days as specified under Para 8 of the Schedule appended to the Citizenship (Registration of Citizens and issue of National Identity Cards) Rules, 2003, the applicant shall provide a certified copy of the rejection order received from the National Register of Indian Citizens hereinafter referred to as NRC authorities along with the grounds for appeal.

(2) The appellant may appear either in person or through a legal practitioner or a relation authorised by the appellant in writing subject to the acceptance of such representation by the Tribunal.

(3) The State Government may appoint a pleader to represent the District Magistrate.

(4) The Tribunal shall issue a notice to the District Magistrate to produce NRC Records within thirty days from date of receipt of the notice and a copy of the said notice shall also be sent to the pleader appearing for the Government and to the appellant.

(5) The District Magistrate shall provide the NRC records in original including the application form and documents submitted by the appellant and orders passed by the NRC authorities to the pleader appearing for the Government against the claims or objections filed by the appellant.

(6) In case no appeal is preferred under Paragraph (8) of the Schedule appended to the Citizenship (Registration of Citizens and issue of National Identity Cards) Rules, 2003, the District Magistrate may refer to the Tribunal for its opinion the question as to whether the person is a foreigner or not within the meaning of the Foreigners Act, 1946  in terms of sub-paragraph (1) of  Paragraph 2.

(7) Persons against whom a reference has already been made by the competent authority to any Foreigners Tribunal shall not be eligible to file the appeal before the Tribunal.

(8) If any Foreigners Tribunal has already given opinion about a person earlier as a foreigner, such person shall not be eligible to file an appeal to any Tribunal.

(9) On behalf of the District Magistrate, the pleader shall produce the NRC records before the Tribunal.

(10) Upon production of the records, if the Tribunal finds merit in the appeal, it shall issue notice to the Appellant and the District Magistrate for hearing specifying the date of hearing and such date shall be within thirty days from the date of production of the records.

(11) The District Magistrate may depute an officer as authorised representative to act on his behalf in any proceeding before the Tribunal.

(12) During the hearing, the Tribunal shall give the appellant, the pleader appearing for the Government and the authorised representative of the District Magistrate, if any, a reasonable opportunity to present their case including the filing of any representation or producing documents or evidence in support of their case.

(13) While disposing the appeal or reference mentioned in sub-para (6), the Tribunal shall be guided by sub-paras (9), (11) and (12) of Paragraph 3 of this Order.

(14) After hearing the Appellant, the pleader appearing for the Government and the authorised representative of the District Magistrate, if any, the Tribunal shall dispose of the appeal:

Provided that the Tribunal shall also, if the appeal is rejected, give a clear finding as to whether the Appellant is a foreigner or not within the meaning of the Foreigners Act, 1946 (31 of 1946).

(15)(a) The final order of the Tribunal shall contain its opinion on the matter whether the Appellant is eligible for inclusion in the NRC or not and it shall also contain the opinion of the Tribunal as to whether the Appellant, if his appeal is rejected, is a foreigner or not within the meaning of the Foreigners Act, 1946.

(b) The final order of the Tribunal shall be a concise statement of facts and conclusion based on which the Tribunal has arrived at its decision.

(16) The final order of the Tribunal containing its opinion shall be given within a period of one hundred and twenty days from the date of production of the records.

(17) Subject to the provision of this Order, the Tribunal shall have the power to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.”

3-B. Procedure for disposal of cases in case of persons referred in sub-para (1B) of Paragraph 2 not preferring an appeal.─ In case a person referred to in Paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 does not prefer an appeal within the period of sixty days before the designated Tribunal constituted under this Order, the authority mentioned in sub-para (1) of Paragraph 2 of this Order may refer to the Tribunal for its opinion the question whether the said person is a foreigner or not within the meaning of the Foreigners Act, 1946  in terms of sub-para (1) of Paragraph 2 of this Order. On receipt of such a reference, the Tribunal shall examine the same as per the procedure laid down in Paragraph 3-A of this Order.

The 2019 Amendment also modified the contents of Para 2(1)47 which now reads as:

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 or is not a foreigner within the meaning of the Foreigners Act, 1946  to a tribunal to be constituted for the purpose, for its opinion.

2.15 The Citizenship Rules, 2009

The Central Government again invoked its rule- making power conferred upon it by Section 18 of the Citizenship Act of 1955 and notified the Citizenship Rules, 200948. Part IV of these Rules has been included to cover the registration process to be done in Assam in accordance with the Assam Accord.

As per Rule 19(1)49, the Central Government may, for the purposes of sub-section (3) of Section 6-A, appoint an officer not below the rank of Additional District Magistrate as the registering authority for every district of the State of Assam. Rule 19(2) provides that an application for registration under sub-section (3) of Section 6-A shall be made in Form XVIII, by the person to the registering authority for the district in which he is ordinarily resident, within a period of thirty days from the date of his detection or identification as a foreigner or, as the case may be, within a period of thirty days of the appointment of the registering authority.

Rule 2050 is germane to this paper. The same reads as follows:

20. Reference to Tribunals.—Where, in case of a person seeking registration under sub-section (3) of Section 6-A,—

(a) any question arises as to whether such person fulfils any requirement contained in the said sub-section; or

(b) the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 in relation to such person does not contain a finding with respect to any requirement contained in the said sub-section other than the question that he is a foreigner,

then, the registering authority shall, within a period of fifteen days of the receipt of the application under sub-rule (2) of Rule 19, make a fresh reference to the Tribunal in this regard.

The aforementioned, in short, is the chronological history of the law pertaining to foreigners with special emphasis on the State of Assam.

3. Objective of the paper

The authors are aware of the gravity of the issue of illegal immigration. The Supreme Court itself has termed such influx as an act of external aggression51. However, the mechanism to deal with the problem which poses an existential threat to the indigenous population must not only be capable but should also be legal. At the same time, it has to be seen that no citizen of India is deprived of his citizenship and consequential rights by an illegal mechanism.

The objective behind this paper is to highlight a very fragile link with the help of which the Foreigners Tribunals are deriving oxygen from the parent Act.

It must be borne in mind that the Foreigners (Tribunals) Order, 1964 by which the Foreigners Tribunals were set up was notified under Section 3 of the Foreigners Act, 194652. But the million dollar question which arises at this juncture is whether Section 3 of the Foreigners Act, 1946 actually empowered the Central Government to pass an order for constitution of Foreigners Tribunals for deciding the fate of thousands of doubtful citizens or suspected foreigners.

In this paper, we are going to critically examine the vires of the Foreigners (Tribunals) Order, 1964.

We are also going to explore the nuances of Section 3 of the Foreigners Act and the Foreigners (Tribunals) Order, 1964 to find out:

• Whether Foreigners Tribunals can be constituted by executive fiat instead of legislation?
• Whether Section 3 of the Foreigners Act empowers the Central Government to set up Tribunals to adjudicate whether a person is or is not a foreigner?

4. Analysis

4.1 Whether Foreigners Tribunals can be constituted by executive fiat instead of legislation

To understand this, one must first understand the history of tribunalisation in India, the mode of establishment of tribunals, the legal sanction behind such tribunals among other things.

4.1.1 History of tribunals in India

Tribunals have had a chequered history in India. The Constitution in its original form did not envisage setting up of tribunals. The 42nd Amendment53 and its insertion of Part XIV-A into the Constitution of India paved the way for tribunalisation in India by introducing Articles 323-A54 and 323-B55. They were seen as a panacea to the increasing burden of litigation on the High Courts and the Supreme Court. Subsequently, a number of tribunals were established. These included Administrative Tribunals, Rent Control Tribunals and Tax Tribunals. However, it cannot be said that tribunalisation started in India only after the 42nd Amendment. Tribunals were in existence prior to the 42nd Amendment Act which came into effect on 3-1-1977. History of tribunals in India dates back to the year 1941, when the first Tribunal was established in the form of the Income Tax Appellate Tribunal under the Income Tax Act. The Foreigners (Tribunals) Order of 1964 itself was much prior to the 42^nd Amendment.

Though at the time of enactment of the Constitution, it did not prescribe setting up of tribunals, the Constitution did acknowledge the existence of tribunals. Article 136(1)56 provides that the Supreme Court may grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. Article 227(1)57 gives High Courts the right of superintendence over all courts and tribunals operating within its territories. These provisions have existed from the time of inception of the Constitution.

In fact in 1965, in Associated Cement Companies Ltd. v. P.N. Sharma58, a Constitution Bench of the Supreme Court defined “tribunals” distinguishing them from “courts” and held:

9. … They are both adjudicating bodies and they deal with and finally determine disputes between parties which are entrusted to their jurisdiction … Judicial functions and judicial powers are one of the essential attributes of a sovereign State, and on considerations of policy, the State transfers its judicial functions and powers mainly to the courts established by the Constitution … The basic and the fundamental feature which is common to both the courts and the tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign State.

Prior to that, in 1961, in Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala59, the Supreme Court observed that:

29. … All tribunals are not courts, though all courts are tribunals….

*                                        *                                                      *

31. With the growth of civilisation and the problems of modern life, a large number of Administrative Tribunals have come into existence. These tribunals have the authority of law to pronounce upon valuable rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary courts of civil judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to courts, but are not courts. When the Constitution speaks of “courts” in Articles 136, 227 or Article 22860 or in Articles 233 to 23761 or in the Lists, it contemplates courts of civil judicature but not tribunals other than such courts. This is the reason for using both the expressions in Articles 136 and 227. By “courts” is meant courts of civil judicature and by “tribunals”, those bodies of men who are appointed to decide controversies arising under certain special laws….

4.1.2 Article 323-B and Foreigners Tribunals

Now, as far as Foreigners Tribunals are concerned, it has been contended from time to time that their constitutionality is suspect as they adjudicate an issue which is beyond the ambit of Article 323-B. We must understand here that Part XIV-A was inserted in the Constitution with effect from 3-1-1977 by the Constitution (Forty-Second Amendment) Act, 1976. The Foreigners (Tribunals) Order provided for the constitution of tribunals much before the Amendment Act of 1976. The question of it being beyond the ambit of Article 323-B, thus, does not arise. With regard to the general power of Parliament to establish tribunals for determining who is or is not a foreigner, we are of the view that if such a power is prospectively tested on the anvil of Article 323-B, it does not falter. Let us explain how.

Part XIV-A of the Constitution contains two parts.

Article 323-A relates to Administrative Tribunals and empowers Parliament to make a law, providing for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Government or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.

Article 323-B empowers the appropriate legislature to make a law, providing for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the following matters specified in clause (2) with respect to which such legislature has power to make laws. The matters as specified in clause (2) are:

(a) levy, assessment, collection and enforcement of any tax;

(b) foreign exchange, import and export across customs frontiers;

(c) industrial and labour disputes;

(d) land reforms by way of acquisition by the State of any estate as defined in Article 31-A62 or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way;

(e) ceiling on urban property;

(f) elections to either House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to in Article 32963 and Article 329-A64;

(g) production, pr­ocurement, supply and distribution of foodstuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods;

(h) rent, its regulation and control and tenancy issues including the rights, title and interest of landlords and tenants;

(i) offences against laws with respect to any of the matters specified in sub-clauses (a) to (h) and fees in respect of any of those matters;

(j) any matter incidental to any of the matters specified in sub-clauses (a) to (i).

Clause (2)(d) of Article 323-A and clause (3)(d) of Article 323-B initially empowered Parliament and the State Legislature to totally exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under Article 136, in regard to the disputes and complaints referred to in Article 323-A(1) and the matters specified in Article 323-B(2).

However, in L. Chandra Kumar v. Union of India65 , the Supreme Court held that this stipulation offended the basic and essential features of the Constitution and was unconstitutional. It was declared that the jurisdiction conferred upon the High Court under Articles 22666 and 22767 and upon the Supreme Court under Article 32 of the Constitution68 is a part of the inviolable basic structure of our Constitution.

Moving on, Article 24569 provides that subject to the provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India, and the legislature of a State may make laws for the whole or any part of the State. Article 246(1)70provides that Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule71; Article 246(3) provides that the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule72; and Article 246(2) provides that Parliament, and, subject to clause (1), the legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule. Article 24773 provides that notwithstanding anything contained in Chapter I of Part XI of the Constitution, Parliament may by law provide for the establishment of any additional courts for the better administration of laws made by Parliament or of any existing laws with respect to a matter enumerated in the Union List.

In Union of India v. Madras Bar Association ,74a challenge was laid against the vires of the National Companies (Second Amendment) Act, 2002 that sought to establish the National Company Law Tribunal and the National Company Law Appellate Tribunal. The vires of the Act were challenged on several counts including the competence of Parliament to constitute these tribunals. It was argued that Article 323-B of the Constitution enables the appropriate legislature to provide for adjudication or trial by tribunals of disputes, complaints or offences with respect to all or any of the matters specified in clause (2). This list, it was argued, was exhaustive and not illustrative. Given that winding-up/dissolution of companies was not specifically enumerated in it, it did not provide for parliamentary competence to set up such a tribunal.

The Supreme Court ruled that Article 323-B was but an enabling provision and not the sole repository of parliamentary competency to establish tribunals. The Supreme Court referred to its decisions in Union of India v. Delhi High Court Bar Assn.75 and State of Karnataka v. Vishwabharathi House  Building Coop. Society76 which had held that Articles 323-A and 323-B are enabling provisions which enable the setting up of tribunals contemplated therein; and that the said articles, however, cannot be interpreted to mean that they prohibited the legislature from establishing tribunals not covered by those articles, as long as there is legislative competence under the appropriate entry in the Seventh Schedule.

In Madras Bar Assn.77, the Supreme Court observed:

“83. … The power so conferred by Article 246 is in no way affected or controlled by Article 323-A or Article 323-B….

84. It is evident that Part XIV-A containing Articles 323-A and 323-B was inserted in the Constitution so as to provide for establishment of tribunals which can exclude the jurisdiction of all courts including the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32, in respect of disputes and complaints covered by those articles. It was thought that unless such enabling power was vested in the legislatures by a constitutional provision, it may not be possible to enact laws excluding the jurisdiction of the High Courts and the Supreme Court. However, this is now academic because clause (2)(d) of Article 323-A and clause (3)(d) of Article 323-B have been held to be unconstitutional in L. Chandra Kumar78.”

In the end, the Supreme Court held that “even though revival/rehabilitation/regulation/winding up of companies are not matters which are mentioned in Articles 323-A and 323-B, Parliament has the legislative competence to make a law providing for constitution of tribunals to deal with disputes and matters arising out of the Companies Act79”.

Now, the legislative competence of Parliament to provide for creation of courts can be traced to Entries 77, 78, 79, 95 of List I80 and Entries 11-A, 46 of List III of the Seventh Schedule81.

Entry 77 of List I refers to constitution, organisation, jurisdiction and powers of the Supreme Court. Entry 78 of List I refers to constitution and organisation of the High Courts. Entry 79 of List I refers to extension or exclusion of the jurisdiction of a High Court, to or from any Union Territory. Entry 95 of List I refers to jurisdiction and powers of all courts except the Supreme Court, with respect to any of the matters in the Union List. Entry 11-A of List III refers to administration of justice, constitution and organisation of all courts except the Supreme Court and the High Courts. Entry 46 of List III refers to jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in List III.

In Madras Bar Assn. 82, the Supreme Court recognised that this legislative competence of Parliament to create courts extended to include creation of tribunals. By interpreting Chapter XIV-A of the Constitution to be an enabling provision, the Supreme Court has traced parliamentary prerogative of creation of tribunals to other parts of the Constitution. In doing so, the ambit of legislative power has been extended, thereby legitimising the creation and functioning of tribunals vested with functions beyond Article 323-B.

In relation to the issue under discussion, we see that “citizenship, naturalisation and aliens” figure in Entry 17 of List I83. Entry 17 does not expressly mention foreigners.

In order to examine the question of the competence of Parliament to enact a law dealing with foreigners, it is pertinent to bear in mind the observations of the Supreme Court in Navinchandra Mafatlal v. CIT84 which are as follows:

6. … As pointed out by Gwyer, C.J. in United Provincesv. Atiqa Begum85 none of the items in the Lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. It is, therefore, clear — and it is acknowledged by  Chagla, C.J. — that in construing an entry in a List conferring legislative powers the widest-possible construction according to their ordinary meaning must be put upon the words used therein.… The cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude.

One must remember that a foreigner’s identity, as per the Foreigners Act, is couched in a negative connotation. He is “not a citizen of India”86. A liberal construction of “citizenship” and “aliens” would bring “foreigners” within the ambit of Entry 17 of List I. That, along with Article 11, confers on  Parliament legislative competence to enact laws pertaining to foreigners. When read with the dictum in Madras Bar Association 87, it also suggests that Parliament can clearly establish a tribunal to determine the issue as to whether a person is or is not a foreigner (or is not or is a citizen).

What, thus, follows is that irrespective of the constitutional changes vis-à-vis tribunalisation as brought about by the insertion of Article 323-B, a tribunal deciding whether a person is or is not a foreigner is not acting ultra vires the Constitution.

4.1.3 Power to set up a tribunal is vested on Parliament

That being said, the competence to constitute such a tribunal clearly vests with Parliament. In Delhi High Court Bar Assn.88, the Supreme Court too recognised the power of Parliament to enact a law constituting a tribunal, which is not covered by any of the matters specified in Article 323-A or Article 323-B.

With regard to any of the entries specified in List I (such as ones dealing with citizenship, naturalisation and aliens), the exclusive jurisdiction to make laws in respect thereof is with Parliament. Entries 77, 78, 79, 95 of List I and Entries 11-A, 46 of List III of the Seventh Schedule, which have been relied upon by the Supreme Court for validating the creation of tribunals beyond Article 323-B, bestow the power of creation of tribunals on Parliament and not on the executive.

In Madras Bar Assn89, the Supreme Court observed that “Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature.” Therein, the Supreme Court recognised the competence of Parliament to create tribunals. The Supreme Court stated in para 90:

“But when we say that the legislature has the competence to make laws, providing which disputes will be decided by courts, and which disputes will be decided by tribunals, it is subject to constitutional limitations, without encroaching upon the independence of the judiciary and keeping in view the principles of the rule of law and separation of powers.”

L. Chandra Kumar90 also recognises that the tribunals are either created by Central legislations or State legislations. The law is, thus, clear. It is the legislature alone which can set up an adjudicatory body like the Foreigners Tribunals to adjudicate whether the person before it is or is not a foreigner.

The Foreigners Tribunals have, however, been created by an executive order – The Foreigners (Tribunals) Order of 1964. It is not Parliament which has created the tribunals. Hence, the quintessential question that arises here is whether an executive order can constitute a Tribunal to adjudicate whether a person before it is or is not a foreigner.

4.1.4     Extent of executive power

To answer this, we must first refer to Article 73 of the Constitution. It prescribes the extent of the executive power of the Union of India. Article 7391 reads as follows:

73. Extent of executive power of the Union.—(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend—

(a) the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:

Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.

The executive power of the Union extends to all such matters on which Parliament can make laws. However, there are two fetters on this power.

• It is subject to provisions of the Constitution.
• The exercise of executive power shall not, save as expressly provided in the Constitution or in any law made by Parliament, extend, in any State, to matters with respect to which the legislature of the State also has power to make laws.

“Citizenship, naturalisation and aliens” are subjects which, as mentioned earlier, are within the exclusive purview of Parliament’s legislative competence. As such, the Union of India can exercise executive power on matters pertaining to citizenship, naturalisation and aliens.

Now, the executive power of the Union is vested in the President by operation of Article 53(1)92 and it can be exercised by him either directly or through officers subordinate to him, in accordance with the Constitution.

Article 74(1)93 postulates that there shall be a Council of Ministers with the Prime Minister as the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. The proviso envisages that “… the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration”.

In Satwant Singh Sawhney v. D. Ramarathnam94 and in Maganbhai Ishwarbhai Patel v. Union of India95, the Supreme Court recognised that Union Ministers are officers subordinate to the President under Article 53(1).

Moving on, Article 77(1) prescribes that “all executive actions of the Government of India shall be expressed to be taken in the name of the President”96. Article 77(3) mandates that “the President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business”.

Acting under Article 77(3), the First President of India, Dr Rajendra Prasad, issued business rules for convenient transaction of the government administration–The Government of India (Transaction of Business) Rules, 1961 and allocated diverse functions to the Council of Ministers, its committees and the officers subordinate to them.

The President, thus, exercises his executive power through the Council of Ministers with the Prime Minister as its head who are collectively responsible to the Lok Sabha. The exercise of this power is as per the Business Rules of 1961. The Council of Ministers exercise the power not as the President’s delegates but as officers subordinate to him by constitutional mechanism envisaged under Article 77 and expressed in the name of President.

Under the Business Rules of 1961, the President has empowered the Ministry of Home Affairs, Department of Internal Security to deal with matters pertaining to the Foreigners Act. Thus, the Ministry of Home Affairs is empowered to exercise the President’s executive power in his name on matters relating to the Foreigners Act. Since this executive power can extend to matters in respect of which Parliament can make laws, hence, the Ministry of Home Affairs can exercise executive power on matters pertaining to citizenship, naturalisation and aliens.

However, in Rai Sahib Ram Jawaya Kapur v. State of Punjab97, the Supreme Court observed:

12.… the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.

We want to impress here the fact that the executive power of the Union is not a substitute for the legislature’s power. The executive is bestowed with the primary responsibility for the formulation of governmental policy. Executive function comprises both the determination of the policy as well as carrying it into execution.

Article 73 cannot be read in isolation and its correlation with Articles 245 and 246 are worth necessary consideration. As per Article 245, Parliament may make laws for the whole or any part of the territory of India. Article 245 lays down the extent of the Parliament’s power to make laws. As per Article 246, Parliament is empowered to make laws on subjects enumerated in Lists I and III. Likewise, Article 73 lays down the extent of the executive power of the Union. Article 73 only signifies the extent up to which executive power of the Union can be exercised – on matters on which Parliament can make laws. It supplements the legislative power of the Union. But Article 73 does not imply that the executive can take over the role of the legislature.

Now, when the Ministry of Home Affairs, in the name of the Central Government, by an order makes provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein, it is an exercise in the executive power of the Union on a matter (i.e. foreigners) in relation to which Parliament has the power to make laws. Section 3 of the Foreigners Act empowers the Central Government to do so and any executive order made in consonance thereof will be a valid exercise of the executive power of the Union. The Foreigners Order of 194898 notified by the Ministry of Home Affairs which lays down regulations concerning a foreigner’s entry into, movement in and departure from India is one such executive order.

But the Foreigners (Tribunals) Order of 1964 has been notified to set up tribunals which sit on decisions as to whether a person is or is not a foreigner and render their opinions to that effect on reference by the competent authority.

Now, tribunals, as discussed earlier, must be set up under a statute enacted by the legislature. On matters related to citizenship, naturalisation and aliens, it is Parliament which can enact the requisite statute for setting up a tribunal to deal with such matters. The Foreigners Act enacted by Parliament, however, does not provide for setting up of any such Tribunal. An executive order cannot be a substitute for an act which requires express legislative competence.

A contention on the strength of Ram Jawaya Kapur99 may be raised that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate on the subject in respect of which action is taken.

However, a Constitution Bench of the Supreme Court in State of M.P. v. Bharat Singh100 after referring to Ram Jawaya Kapur101 clarified that such action must not operate to the prejudice of any person. The Supreme Court held that every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority.

In Bharat Singh102, while invalidating an order made by the State of Madhya Pradesh in exercise of powers conferred by Section 3 of the Madhya Pradesh Public Security Act, 1959, the Supreme Court had the occasion to discuss Ram Jawaya Kapur103. The Supreme Court observed that:

“5. … We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails. Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person must, be supported by some legislative authority.

6 … Counsel for the State relied upon the terms of Article 162 of the Constitution104, and the decision of this Court in Rai Sahib Ram Jawaya KapurState of Punjab105 in support of the contention that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate on the subject in respect of which action is taken. Article 162 provides that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws. But Articles 162 and 73 are concerned primarily with the distribution of executive power between the Union on the one hand and the States on the other, and not with the validity of its exercise. Counsel for the State however strongly relied upon the observations of Mukherjea, C.J., in Rai Sahib Ram Jawaya Kapur case106:

“They do not mean, … that it is only when Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already.”

These observations must be read in the light of the facts of the case. The executive action which was upheld in that case was, it is true, not supported by legislation, but it did not operate to the prejudice of any citizen. In the State of Punjab prior to 1950 the textbooks used in recognised schools were prepared by private publishers and they were submitted for approval of the Government. In 1950 the State Government published textbooks in certain subjects, and in other subjects the State Government approved textbooks submitted by publishers and authors. In 1952 a notification was issued by the Government inviting only “authors and others” to submit textbooks for approval by the Government. Under agreements with the authors and others the copyright in the textbooks vested absolutely in the State and the authors and others received royalty on the sale of those text books. The petitioners — a firm carrying on the business of preparing, printing, publishing and selling textbooks — then moved this Court under Article 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guaranteed under the Constitution. It was held by this Court that the action of Government did not amount to infraction of the guarantee under Article 19(1)(g) of the Constitution107, since no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government done in furtherance of their policy of nationalisation of textbooks for students. It is true that the dispute arose before the Constitution (Seventh Amendment) Act, 1956108, amending inter alia, Article 298109 was enacted, and there was no legislation authorising the State Government to enter the field of business of printing, publishing and selling textbooks. It was contended in support of the petition in Rai Sahib Ram Jawaya case110  that without legislative authority the Government of the State could not enter the business of printing, publishing and selling textbooks. The Court held that by the action of the Government no rights of the petitioners were infringed, since a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest or undertaking. It is clear that the State of Punjab had done no act which infringed a right of any citizen: the State had merely entered upon a trading venture. By entering into competition with the citizens, it did not infringe their rights. Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the legislature of the State has the power to legislate in regard to the subject on which the executive order is issued.”111

The Order of the Central Government setting up Foreigners Tribunals is for a distinct purpose – to decide whether the persons before such Tribunals are or are not foreigners. The findings rendered by such tribunals do have the potential to operate to the prejudice of such persons by declaring them to be foreigners, ergo not citizens of India. Prejudice here is to be read as the possibility of frustrating the fundamental rights of any such person insomuch as declaring the person a foreigner puts fetters on the enjoyment of such fundamental rights. As such, in light of the dictum in Bharat Singh112, the executive order setting up such Tribunals must find support in some legislative authority.

Additionally, if the executive order setting up Foreigners Tribunals is treated as delegated or subordinate legislation, then as per Ram Jawaya Kapur113, it is necessary that the legislature must delegate the authority to the executive for setting up such Tribunals.

Simply put, though the executive power of the Union runs parallel to the legislative power of Parliament, the Union can assume Parliament’s power only after an appropriate delegation of such power to it by Parliament. Without such an exclusive warrant, it will be preposterous for the Union to even think of making such a law albeit it is in line with the legislative competence of Parliament.

So, in order for the State to set up an adjudicatory body to decide whether a person is or is not a foreigner, the parent statute must empower the State to constitute such a body.

In other words, Section 3 of the Foreigners Act under which the Foreigners (Tribunals) Order, 1964 was notified, must empower the executive to create such an adjudicatory body to meet the exigencies of time. This takes us to our next issue up for discussion.

4.2 Whether Section 3 of the Foreigners Act empowers the Central Government to set up Tribunals to adjudicate whether a person is or is not a foreigner?

To answer this, we need to examine the provision itself. Section 3, Foreigners Act114 reads thus:

3. Power to make orders.—(1) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.

(2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner—

(a) shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;

(b) shall not depart from India, or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;

(c) shall not remain in India or in any prescribed areas therein;

(cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal;

(d) shall remove himself to, and remain in, such area in India as may be prescribed;

(e) shall comply with such conditions as may be prescribed or specified—

(i) requiring him to reside in a particular place;

(ii) imposing any restrictions on his movements;

(iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;

(iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;

(v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;

(vi) prohibiting him from association with persons of a prescribed or specified description;

(vii) prohibiting him from engaging in activities of a prescribed or specified description;

(viii) prohibiting him from using or possessing prescribed or specified articles;

(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified;

(f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions;

(g) shall be arrested and detained or confined;

and may make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act.

(3) Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (e) or clause (f)] of sub-section (2).

As per Section 3(1), the Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner with regard to:

• regulating or restricting entry into India;
• departure from India; and
• presence or continued presence in India.

From the language of Section 3(1), it is evident that it empowers the Central Government to pass orders only with respect to a foreigner and nobody else.

As for instance, in exercise of the powers conferred by Section 3 of the Foreigners Act, 1946, the Central Government made the Foreigners Order, 1948. According to Para 3115 thereof, no foreigner can enter into India otherwise than at such port or other place of entry on the border of India as a Registration Officer having jurisdiction may permit or without the leave of the civil authority having jurisdiction at such port or place.

There is also no embargo on the power of the Central Government to deport and expel foreigners. In Hans Muller of Nurenberg v. Supt., Presidency Jail116, the Supreme Court held in very unequivocal terms:

35. The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.

At this juncture, we would like to refer to Article 258(1)117 of the Constitution of India which reads as follows:

Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.

Invoking Article 258(1), the Ministry of Home Affairs issued the following Notification118 which reads as follows:

In exercise of the powers conferred by clause (1) of Article 258 of the Constitution and all other powers enabling him in this behalf and in supersession of all previous notifications on the subject in so far as they relate to the Act, rules and orders hereinafter mentioned, the President with the consent of the State Government concerned hereby entrusts to the Government of each of the States of A.P., Assam, Bihar, Bombay, J. and K., Kerala, M.P., Madras, Mysore, Orissa, Punjab, Rajasthan, U.P. and West Bengal the functions of the Central Government,

(1) under Section 5 of the Passports Act, 1920 (34 of 1920);

(2) under Rules 2 and 4 of the Indian Passports Rules, 1950;

(3) under Rule 3 of the Registration of Foreigners Rules, 1939;

(4) in making orders of the nature specified in clauses (c), (cc), (d), (e) and (f) of sub-section (2) of Section 3 of the Foreigners Act, 1946; and

(5) under the Foreigners Order, 1948 subject to the following conditions, namely,

(a) that in the exercise of that function the said State Government shall comply with such general or special directions as the Central Government may from time-to-time issue; and

(b) that notwithstanding this entrustment the Central Government may itself exercise any of the said functions should it deem fit to do so in any case.

The Government of India, Ministry of Home Affairs in exercise of the powers conferred by Article 258(1) of the Constitution issued a Notification dated 17-2-1976 entrusting Superintendents of Police and Deputy Commissioners (incharge of Police) under the Government of Assam functions of the Central Government in making orders of the natures specified in clauses (a), (b), (c) and (cc), (e) and (f) of sub-section (2) of Section 3 of the Foreigners Act within their respective jurisdiction subject to conditions mentioned therein which included the condition that exercise of such functions would be in respect of nationals of Bangladesh and that while exercising such functions, Superintendents of Police and Deputy Commissioners (incharge of Police) shall comply with such general or special directions as the Government of Assam or Central Government may issue from time to time.119

In other words, the Central Government as well as the State Government of Assam is empowered to pass orders generally or specifically to any foreigner or class of foreigner regulating or restricting entry into India, departure of foreigners from India or presence or continued presence in India, all under Section 3 of the Foreigners Act.

Superintendents of Police and Deputy Commissioners (in charge of Police) may make orders of the natures specified in clauses (a), (b), (c) and (cc), (e) and (f) of Section 3(2). But in any case, the order that may be passed is only with respect to a foreigner.

4.2.1 Orders under Section 3 are in the nature of delegated legislations.

Before delving further into the intricacies of an order made under Section 3 of the Foreigners Act, it is necessary to understand what an “order” under that section is.

In Section 3, Parliament has empowered the Central Government to make provisions “either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein” through “orders”. Parliament, in other words, has delegated the power to make such provisions to the Central Government. Such orders made by the Central Government through executive directions are a form of delegated legislations. Through such delegation, the executive is given powers (by the primary legislation) in order to implement and administer the requirements of that primary legislation.

On the point of delegated legislations, Salmond’s views are worth mentioning here. He states that delegated legislation is that which proceeds from any authority other than a sovereign power and is therefore dependent for its constituted existence and validity on some superior or supreme authority.120

The power of delegated legislation is a constituent element of legislative power as a whole. In modern times, legislature enacts laws to meet the challenge of socio-economic problems. The legislature often finds it convenient and necessary to delegate subsidiary or ancillary powers to delegates of its choice for carrying out policy laid down in the Act.121

Delegated legislation is designated by several names, such as, rules, regulations, bye-laws, orders, etc. though the term “rules” is more commonly employed. The terms “regulations” and “bye-laws” are usually used to denote the legislation framed by statutory bodies under delegated legislative power. “Orders” which flow from statutes also denote delegated legislations.122 Delegation legislation is essentially law made by a person or body and may include order, rules, regulation, notification, etc. Article 13(3) of the Constitution123 recognises such executive orders, rules, regulations etc. as law which come within the ambit of judicial review.

4.2.2 Validity of a delegated legislation

Now, for validity of a delegated legislation, it is essential that such delegation must be within the permissible limits. Excessive delegation often stumbles on the doctrine of ultra vires. An authority can exercise only so much power as is conferred on it by law.

In Delhi Laws Act, 1912, In re124, the Supreme Court stated:

311. … the legislature cannot part with its essential legislative function which consists in declaring its policy and making it a binding rule of’ conduct. A surrender of this essential function would amount to abdication of legislative powers in the eye of the law. The policy may be particularised in as few or as many words as the legislature thinks proper and it is enough if an intelligent guidance is given to the subordinate authority….

In Mohd. Yasin v. Town Area Committee125, the Supreme Court observed:

… the sole concern of the courts is to assess whether the impugned rule is ultra vires or intra vires. Briefly stated, the principle is that the delegate cannot make a rule which is not authorised by the parent statute. If the subordinate legislative authority keeps with the powers delegated, the delegated legislation is valid; but if it does not, the courts will upset it.

In ADM v. Siri Ram126 the Supreme Court held:

16. It is a well-recognised principle of interpretation of a statute that conferment of rule-making power by an Act does not enable the rule making authority to make rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto….

What follows from the authorities cited above is that if delegated legislation goes beyond what it was originally empowered to do or it is in conflict with the parent statute, it is invalid.

4.2.3 Purview of Section 3 of the Foreigners Act

If we look at the Foreigners Act, “foreigner” as per Section 2(a) is “a person who is not a citizen of India”.

From the simple understanding of Section 3(1), what we can infer is that the Central Government can make orders under Section 3(1) only in respect of foreigners meaning people who are not citizens of India with regard to their entry, presence and departure. Therefore, for an order under Section 3(1) to apply, the target person or group of persons must already be held or recognised to be foreigners and there should not be any doubt with regard to their nationality. If a person’s nationality is in doubt, that question has to be sorted before any order under Section 3(1) is passed as Section 3(1) offers little scope in dealing with any such issues, more particularly it eliminates the adjudication of such a dispute regarding nationality by setting up a forum that too by an executive order under Section 3(1).

Hence, there arises no possibility for the legislature delegating authority to the Central Government under Section 3(1) of the Foreigners Act to set up a tribunal to decide whether a person is or is not a foreigner.

Now, coming to Section 3(2), it is seen that provision has been made for passing orders without causing prejudice to the generality of the powers laid under Section 3(1). A usual technique used to confer rule-making power is, first, to give a general power to make rules for the purposes of the Act and then to lay down, without prejudice to the generality of the previous clause, specific heads for which the delegate may make rules. The purpose of the specific heads is ordinarily only illustrative and not to restrict the generality of the rule-making power conferred in the preceding clause. The real source of power is the general provision; the enumerated specific heads are only illustrative and do not confer any additional power. If a rule is justified under the general rule-making power, then it is valid, even if it does not fall within the specified heads.127

In Kunj Behari Lal Butailv. State of H.P.128, the Supreme Court held:

14. We are also of the opinion that a delegated power to legislate by making rules “for carrying out the purposes of the Act” is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself.

In Emperor v. Sibnath Banerji129, the Privy Council observed:

… Their Lordships are unable to agree with the learned Chief Justice of the Federal Court on his statement of the relative positions of sub-sections (1) and (2) of Section 2 of the Defence of India Act, 1939130, and counsel for the respondents in the present appeal was unable to support that statement, or to maintain that Rule 26 was invalid. In the opinion of Their Lordships, the function of sub-section(2) is merely an illustrative one; the rule-making power is conferred by sub-section(1), and “the rules” which are referred to in the opening sentence of sub-section(2) are the rules which are authorised by, and made under, sub-section(1); the provisions of sub-section(2) are not restrictive of sub-section(1), as, indeed, is expressly stated by the words without prejudice to the generality of the powers conferred by sub-section(1).

Section 3(2) clearly illustrates the types of orders which can be passed with regard to a foreigner. But while exercising any power to make an order under Section 3(2), the Central Government cannot exceed the generality of the power conferred under Section 3(1). The limitation is clear due to the presence of the words “in particular and without prejudice to the generality of the foregoing power”. Whenever any particular provision follows a general provision and if that particular provision is stated to be without causing prejudice to the general provision, then such particular provision cannot override or scuttle the generality of preceding provision. The powers laid down under the particular provision are circumscribed and controlled by the general provision.

A provision enacted “without prejudice” to another provision has not the effect of affecting the operation of the other provision and any action taken under it must not be inconsistent with such other provision.131

It has already been discussed before that the Central Government by an order under Section 3(1) may make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner with regard to their entry, presence and departure. Therefore, any orders made under Section 3(2) must adhere to the general qualifications laid down under Section 3(1) and cannot circumnavigate it by making provisions alien to Section 3(1).

Since Section 3(1) does not provide any scope for determining the question of citizenship as it deals exclusively with foreigners and not with people who are doubtful voters or their citizenship is suspect, hence, there is no question of Section 3(2) empowering the Central Government to set up tribunals to do so.

This takes us to the final part of Section 3(2) which empowers the Central Government “to make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act”.

Let us not forget that Section 3(2) is encumbered by the words “without prejudice” making it subservient to Section 3(1). As such, before proceeding with the analysis, it must be kept in mind that the rider to the first part of Section 3(2) shall also apply to the “residuary power” of the Central Government to make provision for any prescribed matter and also for incidental and supplementary matters. This means that any order passed under this residuary power cannot cut down the generality of the preceding provision.

Coming back to the power of the Central Government to make provision for ancillary matters under Section 3(2), it is seen that two factors must be satisfied before the Government can pass any such orders:

(a) such an order must be for any matter which is to be or may be prescribed; and

(b) such an order must be for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act.

Both parts in the sentence are joined by “and” which must be given its literal meaning. In normal parlance, “and” is conjunctive in nature and its basic job is to connect parts of sentences or words. In the present situation, there is nothing which demands that “and” has to be given a disjunctive meaning and must be read as “or” to give effect to the intention of the legislature. From a bare reading, it appears that the manifest intention of the legislature can be given its due share of avowal by reading both parts together and not separately.

As such, what appears if the entire sentence is read together is that the Central Government can make such provisions not only in respect of any matter which is or may be prescribed but also for incidental and supplementary matters, which are expedient or necessary in the opinion of the Government for “giving effect” to the Act.

Before understanding what “giving effect” to an Act means, let us visualise a situation where an order is passed against a particular individual under Section 3 alleging him to be a foreigner and that individual wants to challenge such an order by claiming that he is an Indian citizen and is not a foreigner. The question is where he can seek such relief as the Act does not point towards any particular forum.

If we examine the scheme of the Act we find that Section 9 of the Foreigners Act drops a hint that there is space for a dispute regarding citizenship whilst passing any order under the Act and even envisages on whom the burden of proving the fact of citizenship will lie.

Section 9132 says that:

9. Burden of proof.—If in any case not falling under Section 8133 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall notwithstanding anything contained in the Evidence Act, 1872134, lie upon such person.

But what is absent in the Act is the presence of a forum where such a dispute can be resolved or the question regarding nationality can be determined.

As discussed above, Section 3(1) does not empower the Central Government to constitute any forum for resolving the question of nationality. But since Section 9 indirectly speaks of such a dispute under the Act, the question is whether the Central Government in order to give effect to the Act could have found it expedient or necessary enough to set up Foreigners Tribunals by virtue of the power of law making for incidental and supplementary matters delegated to it by the legislature.

The power to make laws, be it direct or delegated, on supplementary matters is covered by the doctrine of incidental or ancillary powers. This doctrine means that the power to legislate on a particular subject will also include the power to legislate on incidental matters that can be reasonably connected with the principal subject. The doctrine of incidental or ancillary powers was well discussed by the Supreme Court in State of Rajasthan v. G. Chawla135wherein it was held:

8. The power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given.

In our case, the legislature has empowered the Central Government by way of delegated legislation to make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner with regard to their entry, presence and departure. So, any incidental or ancillary power to make orders to give effect to the Act must also succumb to the generality of the powers delegated to the Central Government.

But a question may arise. What does giving effect to the Act imply?

In K. Ramanathan v. State of T.N.136, the Supreme Court held:

The delegating statute may say, for instance, that the authority may make rules as appear to be necessary or expedient for giving effect to the purposes of the Act.

In Laghu Udyog Bharati v. Union of India137, the Supreme Court had the occasion to analyse the Finance Act, 1994138 vis-à–vis the validity of the Service Tax Rules. The Supreme Court held:

13. Section 94 gives the Central Government power to make the rules. These rules are to be made for carrying out the provisions of the chapter. The chapter relates to taxing the services which are provided. The tax is on the value of the services and it is only the person providing the service who can be regarded as an assessee. The rules, therefore, cannot be so framed which do not carry out the purpose of the chapter and cannot be in conflict with the same.

In CCE & Customs v. Venus Castings (P) Ltd.139the Supreme Court held:

11. In holding a relevant rule to be ultra vires it becomes necessary to take into consideration the purpose of the enactment as a whole, starting from the Preamble to the last provision thereto. If the entire enactment read as a whole indicates the purpose and that purpose is carried out by the rules, the same cannot be stated to be ultra vires of the provisions of the enactment.

And in order to understand the scope of giving effect to the purpose of the parent Act it is imperative to examine the title, Preamble and the express provisions of the Act140.

The long title of the Foreigners Act states, “An Act to confer upon the Central Government certain powers in respect of foreigners.” The long title, if being taken along with the Preamble or even in its absence, is a good guide regarding the object, scope or purpose of the Act. Nevertheless, if we refer to the Preamble of the Act, the same reads as follows, “Whereas it is expedient to provide for the exercise by the Central Government of certain powers in respect of the entry of foreigners into India, their presence therein and their departure therefrom.”

The long title, Preamble and the express provisions of the Act such as Section 3 provide clear insights to the purpose of the legislation and the nature and scope of the delegated legislation for giving effect to the purpose of the Act. It is seen that the Act has been drafted with an object in mind and that is empowering the Government with certain powers in respect of foreigners and their entry, presence and departure from India. So, the target group for the delegated legislation also has to be foreigners and nobody else.

But as discussed above, the presence of Section 9 and the chance of a possible dispute with regard to one being a foreigner or a citizen of India may arise after any order is passed under Section 3. The dispute, however, would arise once an order is passed under Section 3 treating the person concerned as a foreigner. Section 3(1) provides little space for setting up of a tribunal to first decide whether the person concerned is or is not a foreigner. It deals exclusively with foreigners and not with a person who is a disputed national and whose citizenship status would require determination.

The orders under Section 3(1) can be passed only with a person who is admittedly a foreigner or has already been held to be a foreigner. Even if it may feel that, given the possibility of the scenario depicted in Section 9, tribunals may be set up under the residuary power for giving effect to the Act, but with the presence of the words “without prejudice” and the doctrine of ancillary powers, it can hardly be done so. Any delegated legislation made under Section 3(2) with the purpose of giving effect to the Act must be without prejudice to the generality of the powers described under Section 3(1) and must be either incidental or supplementary to them.

Therefore, if Section 3(1) does not empower the Central Government to determine the citizenship of a person who may be suspected to be a foreigner, there is no scope for the Government to do the same under Section 3(2). The genesis of the power to make orders under Section 3(2) is Section 3(1) and if any order cannot be made on a particular subject under Section 3(1), naturally it will not be possible to make provisions by passing orders on subjects incidental or supplementary to such subjects under Section 3(2) even if the object of the order was for giving effect to the Act.

5. Findings

We had framed the following two questions at the inception of our paper:

• Whether Foreigners Tribunals can be constituted by executive fiat instead of legislation?
• Whether Section 3 of the Foreigners Act empowers the Central Government to set up tribunals to adjudicate whether a person is or is not a foreigner?

Consequently, we found that the answer to the former was dependent on the answer to the latter. But in the course of our discussion, we were unable to find the right gene either in Section 3(1) or in Section 3(2) to enable birth of the Foreigners (Tribunals) Order, 1964 for setting up of tribunals to determine whether a person is or is not a foreigner.

Setting up of a tribunal, as discussed above, is exclusively in the domain of the legislature. To enable any person to dispute any order passed under Section 3 of the Foreigners Act on the ground that the person against whom such an order has been passed is not a foreigner, a forum is essential. But such an adjudicating forum can only be created through a statute of Parliament. Creation of such a forum is an essential legislative function that cannot be delegated to the executive and has to be exercised by the legislature. Executive instructions can supplement a statute or cover areas to which the statute does not extend, but they cannot run contrary to statutory provisions or whittle down their effect. Thus, in the absence of requisite legislative sanction under Section 3 to do so, we have to hold that the constitution of Foreigners Tribunal by an executive fiat in the nature of a delegated or subordinate legislation is bad in law.

6. The vires of the Foreigners (Tribunals) Order, 1964

Since after the discussion in the preceding paragraphs, it has been difficult to identify the legal basis of the Foreigners (Tribunals) Order, 1964, let us go a step ahead and examine its vires both in respect of the parent Act and the Constitution of India.

The Supreme Court in State of U.P. v. Renusagar Power Co.141 observed that:

79. If the exercise of the power is in the nature of subordinate legislation, the exercise must conform to the provisions of the statute. All the conditions of the statute must be fulfilled….

In Shri Sitaram Sugar Co. Ltd. v. Union of India142, it was held by the Supreme Court that:

47. Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterised as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be “reasonably related to the purposes of the enabling legislation”. See Leila Mourning Family Publications Service Inc.143. If they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or do not tend in some degree to the accomplishment of the objects of delegation, court might well say, “Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires”: per Lord Russel of Killowen, C.J. in Kruse v. Johnson144 .

The invalidity of a delegated legislation usually arises from any of the following reasons:

(1) the enabling Act or delegating statute being unconstitutional;

(2) the delegated legislation violating the Constitution; and

(3) the delegated legislation being ultra vires the delegating Act.

Here, we do not challenge the constitutionality of the Foreigners Act. But we suggest that the delegated legislation that is the Foreigners (Tribunals) Order, 1964 is ultra vires the delegating Act (the Foreigners Act) and the Constitution.

6.1 The Foreigners (Tribunals) Order, 1964 is ultra vires the Foreigners Act

Exploring the possibility that the 1964 Order is ultra vires the Foreigners Act especially with regard to Para 2 which provides for constitution and setting up of Foreigners Tribunals, we find that judicial review over delegated legislation can be exercised by applying two tests:

• Substantive ultra vires; and
• Procedural ultra vires.

When a delegated legislation is made without complying with the procedural requirements prescribed by the parent Act or by the general law, procedural ultra vires kicks in. In this paper, however, we are concerned with substantive ultra vires as we see no issue per se with compliance of any procedural requirements while making the 1964 Order.

Substantive ultra vires can be loosely described to mean that the delegated legislation went beyond the power conferred on it by the parent Act or if it is in conflict with the parent Act.

We have already discussed how the Foreigners (Tribunals) Order, 1964 was notified by going beyond the power conferred upon the Central Government by  Parliament under Section 3 of the Foreigners Act. So, testing the 1964 Order on the anvil of substantive ultra vires, we find that it fails in that regard.

While considering the validity of a delegated legislation, one has to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the delegated legislation conforms to the parent statute. In relation to the 1964 Order, there is direct inconsistency and repugnancy with the very provision of the enabling Act (Section 3) under which the Order has been notified.

We must remember here that the Foreigners (Tribunals) Order, 1964 is not an ordinary order and does not resemble the host of other orders passed by the Central Government under Section 3. Why we are calling the 1964 Order an extraordinary piece of legislation is that it set up quasi-judicial bodies empowered to determine the nationality of an individual. Calling the decision of a Foreigners Tribunal an “opinion” and not a judgment or a decree does not lighten its function and role. It sits on adjudication as to whether the person referred to it is or is not a foreigner.

But as discussed before, a tribunal can be established only by an Act of Parliament as legislature cannot delegate essential legislative functions incongruent to the parent statute. In the present case, the 1964 Order was made by the Central Government purportedly under Section 3 which, as discussed earlier, has never permitted or provided any scope for doing so. The setting up of Foreigners Tribunals under the 1964 Order is clearly in excess of the power conferred upon the Central Government by Section 3. Therefore, what can be perceived is that the Central Government lacked competence to make the 1964 Order to set up Foreigners Tribunals. As such, the 1964 Order is substantively ultra vires the Foreigners Act.

6.2 The Foreigners (Tribunals) Order, 1964 is ultra vires the Constitution

We have already delineated in detail, in the preceding paragraphs, the composition of tribunals and the legislative competence of Parliament to set up tribunals. We have showed that in the constitutional scheme of India, the possibility of composition of Foreigners Tribunals through an executive order is contingent upon it deriving legitimacy from the parent Act. As we have found out that the parent Act (the Foreigners Act) has not bestowed legislative competence upon the Central Government to set up an adjudicatory forum to determine whether a person is or is not a foreigner, the setting up of tribunals, not through a statute but through executive fiat, also fails its test on the anvil of constitutional provisions. As such, the executive fiat that is the Foreigners (Tribunals) Order, 1964 has to be considered ultra vires the Constitution.

6.3 Does Sarbananda (I) validate the Foreigners (Tribunals) Order, 1964?

Before concluding this issue, we would like to refer to Sarbananda (1)145as it has often been suggested that this case validates the legality of Foreigners Tribunals and the Foreigners (Tribunals) Order of 1964.

However, it must be remembered that it was the constitutional validity of the IMDT Act, which was in question before the Supreme Court in Sarbananda (1)146. The Supreme Court declared the IMDT Act and the Rules made thereunder as ultra vires the Constitution and struck down the same and gave a consequential declaration that the Tribunals, constituted under the said Act, shall cease to function with a further direction that all the cases, pending before the tribunals constituted under the said Act, shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964.

It is pertinent to mention here that the vires of the Foreigners Act or the Foreigners (Tribunals) Order, 1964 were not tested by the Supreme Court therein. The Supreme Court recognised the issues with the IMDT Act such as the fact that the burden of proof under the IMDT Act was in direct conflict with the Foreigners Act which placed the burden of proof on the person who was claiming to be a citizen of India or that it was enacted for the State of Assam and had no pan India applicability.

However, when it came to the Foreigners Act and the Foreigners (Tribunals) Order of 1964, all that the Supreme Court said was:

64. We have considered the provisions of the Foreigners Act, the Foreigners (Tribunals) Order, 1964 and also the IMDT Act and the Rules made thereunder in considerable detail in the earlier part of the judgment. They clearly demonstrate that the procedure under the Foreigners Act and also under the Foreigners (Tribunals) Order, 1964 is far more effective in identification and deportation of foreigners as compared to the procedure under the IMDT Act and the Rules made thereunder. There being no corresponding provision like Section 9 of the Foreigners Act which places the burden of proof upon the person concerned who claims to be an Indian citizen, which is absolutely essential in relation to the nature of inquiry being conducted regarding determination of a person’s citizenship (where the facts on the basis of which an opinion is to be formed and a decision is taken are entirely within the knowledge of the said person) has made the task of the law enforcement agencies of the State not only difficult but virtually impossible. The IMDT Act has been so enacted and the Rules thereunder have been so made that innumerable and insurmountable difficulties are created in the matter of identification and deportation of illegal migrants….147

The Supreme Court further observed that:

73. … In our opinion, the procedure under the Foreigners Act and the Foreigners (Tribunals) Order, 1964 is just, fair and reasonable and does not offend any constitutional provision.148

In regard to the first observation of the Supreme Court, it has only endorsed the efficiency of the Foreigners Tribunals in identification and deportation of foreigners. There is no analysis of the provisions of the Order of 1964 and its legality. In the second observation, the Supreme Court has justified the procedure under the Foreigners Act and the Order to be just, fair and reasonable and not in offence of any constitutional provision.

This statement, however, was made in response to the submissions of Shri Shanti Bhushan, the counsel for the petitioners in Jamiat Ulma-E-Hind v. Union of India149 who had also argued in the case as the subject-matter was inextricably connected to the case that he was arguing. He had submitted that though some of the articles in Part III of the Constitution dealing with fundamental rights like Articles 19(1)(d) and (e) would not apply to a foreigner, yet he is entitled to the protection of Article 21150 as the application of the said article is not confined to citizens alone. He had submitted that in view of the clear mandate of Article 21 that no person shall be deprived of his life or personal liberty except according to procedure established by law, there has to be a fair procedure for expulsion of foreigners. He submitted that the IMDT Act laid down a fair procedure, namely, determination by a judicial Tribunal of the question of citizenship of a person and his deportation. It had been submitted that the IMDT Act which sought to achieve this object met the requirements of Article 21 of the Constitution and thus its validity could not be impugned. The then Additional Solicitor General and Shri K.K. Venugopal, during the course of their arguments, had also laid great stress on the fact that the IMDT Act had been enacted to give protection to genuine Indian citizens and to save their harassment.

It was then that the Supreme Court observed:

73.  It is not possible to accept the submission made. The view taken by this Court is that in a criminal trial where a person is prosecuted and punished for commission of a crime and may thus be deprived of his life or liberty, it is not enough that he is prosecuted in accordance with the procedure prescribed by law but the procedure should be such which is just, fair and reasonable. This principle can have no application here for the obvious reason that in the matter of identification of a foreigner and his deportation, he is not being deprived of his life or personal liberty. The deportation proceedings are not proceedings for prosecution where a man may be convicted or sentenced. The Foreigners Act and the Foreigners (Tribunals) Order, 1964 are applicable to whole of India and even to the State of Assam for identification of foreigners who have entered Assam between 1-1-1966 and 24-3-1971 in view of the language used in Section 6-A of the Citizenship Act. It is, therefore, not open to the Union of India or the State of Assam or for that matter anyone to contend that the procedure prescribed in the aforesaid enactment is not just, fair and reasonable and thus violative of Article 21 of the Constitution. In our opinion, the procedure under the Foreigners Act and the Foreigners (Tribunals) Order, 1964 is just, fair and reasonable and does not offend any constitutional provision.151

The Supreme Court while refuting the submissions that the IMDT Act protected the right to life and personal liberty of persons whose citizenships were under judicial scrutiny before the tribunals observed that the procedure prescribed in the Foreigners Act and the Foreigners (Tribunals) Order, 1964 is just, fair and reasonable and does not offend any constitutional provision. This observation was made in the context that the proceedings before the Tribunals do not violate Article 21.

One must understand that the binding value of a decision of a court is only extended when the judgment actually raises, discusses and considers a question directly. The vires of the 1964 Order or for that matter the Foreigners Act was not examined by the Supreme Court. The Supreme Court did direct the Government to set up adequate Foreigners Tribunals but in light of the fact that the validity or legality of the Order constituting such Tribunals was not perceived by the Supreme Court nor did it have the opportunity to apply its mind to it, it must be said that the observations of the Supreme Court in regard to Foreigners Tribunals were passed sub silentio.

Thus, Sarbananda (1)152can hardly be relied upon to affirm the vires or validate the Foreigners (Tribunals) Order of 1964.

7. References to Foreigners Tribunals

The Foreigners Tribunals, as they exist now, take up references of the question as to whether a person is or is not a foreigner in the following circumstances:

(a) From IMDT Tribunals

All cases pending before the Tribunals constituted under the IMDT Act stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964.

(b) Cases of D Voters

In the year 1997, Election Commission of India had undertaken intensive revision of electoral rolls in the State of Assam as apprehensions were expressed from various quarters that the electoral rolls were infested with the names of foreigners/illegal migrants. In the course of this exercise citizenship status of as many as 3,13,046 persons whose names were in the draft voters lists were found to be doubtful and accordingly, they were marked as doubtful “D” voters in the electoral rolls after local verification.

The Election Commission of India issued guidelines dated 17-7-1997 laying down the procedure to carry out the verification exercise.

As per Para 3.8 of the Guidelines the Electoral Registration Officer was required to consider the verification report received from the Local Verification Officer. If he was satisfied on such report and such other material/information as may be available about the eligibility of a person, he should allow his name to continue on the electoral roll. Where, however, he was not so satisfied and had reasonable doubt about the citizenship of any person, he was required to refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 as the case may be.

As per Para 3.9, after the case of a person was referred by the Electoral Registration Officer to the competent authority, he should wait for the decision of the relevant Tribunal in relation to that person and act according to such decision.

As per Para 3.10, where the relevant Tribunal decided that any such person was not a citizen of India, Electoral Registration Officer should proceed under Rule 21-A of the Registration of Electors Rules, 1960153 to have the name of such person deleted from the electoral roll before it was finally published.

Legality of this exercise was challenged before the Gauhati High Court in HRA Choudhury v. Election Commission of India154. The challenge made was rejected by a Division Bench. The Gauhati High Court in HRA Choudhury155 held that such guidelines and decision of the Election Commission were in accordance with Article 324 of the Constitution of India156 besides conforming to the principles of natural justice. It was held that such guidelines cannot be held to be arbitrary or vitiated by mala fide or partiality.

The above exercise was repeated in the year 2005 with the Election Commission of India again going for intensive revision of electoral rolls in the State of Assam taking 1-1-2005 as the qualifying date. In this connection, guidelines dated 17-6-2004 were issued by the Election Commission of India. Para 2.2 of the guidelines dealt with “D” voters. It was mentioned that the guidelines issued in 1997 would be followed while dealing with such category of persons.

Para 8 dealt with verification by Electoral Registration Officers. It laid down the procedure while carrying out such verification including verification by Local Verification Officer.

As per Para 8.6, Local Verification Officer would conduct the verification by making an on the spot visit and the person concerned could adduce any one or more of the documents mentioned therein in support of his claim as a citizen of India. After due verification, the Local Verification Officer was required to submit his report in the prescribed format.

Under Para 8.8, Electoral Registration Officer on receipt of the verification report from the Local Verification Officer should consider the same. Where he was satisfied about the eligibility of a person, he should allow the name of such person to continue on the electoral roll but where he was not so satisfied and had reasonable doubt about the citizenship of any person he should refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 in a prepared format to the competent authority for making reference to the Tribunal and await the decision of such Tribunal.

As the IMDT Act is no longer in force, the reference would now be under the Foreigners Act, 1946.

Apart from D voters whose cases were referred by Electoral Registration Officers, there are other category of persons whose matters are referred to Tribunals  such as IMDT referees, references from Border Police. They also stand on the same footing as D voters.

Vide Notification No. 23/As/96/Vol.III dated 12-11-1997, the Election Commission of India directed that the names of voters whose cases were referred to the Tribunals by the competent authorities but the decisions of the Tribunals were awaited, their names be included in the electoral rolls but they be marked with a D meaning doubtful/disputed.

And vide Notification No. 23/As/2005 dated 25-7-2005, the Election Commission of India directed that following Sarbandanda (1)157, all D voters (whose names were there in the rolls up to 2004) whose cases were pending before the Tribunals under the IMDT Act be transferred to Foreigners Tribunals. From 2005, all new persons whose names were marked with D and which were to be included in the final list were to be referred to the competent authority under the Foreigners (Tribunals) Order, 1964 for determination of their citizenship status in view of Sarbananda (I)158.

The Gauhati High Court in Mameza Khatun v.Union of India159 directed that apart from the D voters referred by the Electoral Registration Officers, all other persons whose names are included in the electoral rolls but their citizenship is in doubt and whose cases are pending in Foreigners Tribunals must also be treated as D voters.

(c) From Border Police

We have already highlighted the Ministry of Home Affairs Notification issued under S.O. 590 dated 19-4-1958 and Notification dated 17-2-1976 which have entrusted the Government of Assam, Superintendents of Police and Deputy Commissioners (incharge of Police) to make orders of the nature specified in Sections 3(2)(a), (b), (c) & (cc), (e) and (f).

The Assam Police Border Organisation under PIP (Prevention of Infiltration of Pakistani) Scheme was established in 1962, under Special Branch Organisation of Assam Police, headed by the Deputy Inspector General of Police, Special Branch. In 1974, the Organisation started functioning independently as Border Organisation under the newly created post of Deputy Inspector General of Police, (Border). After the liberation war of Bangladesh, the PIP Scheme was renamed as PIF (Prevention of Infiltration of Foreigners) Scheme.

The Border Police carries out surveys for identification of suspected foreigners. It conducts inquiries in two phases. In the preliminary inquiry, the Border Police issues a notice to the person who nationality is suspect, who is then asked to produce documents to prove his identity and birth within twenty days or on any date fixed by the Border Police. If citizenship is not established in the preliminary inquiry, the Superintendent of Police (B) signs off an official inquiry. Therein, the particulars of the person under investigation are analysed. If the Border Police finds anyone`s citizenship doubtful, the Superintendent of Police (B) refers the matter to the Tribunal for opinion.

The Government of Assam vide Letter No. PLB.149/2008/Pt/8 dated 21-102009 issued a notification authorising the police officers of the Government of Assam entrusted with the process of detection and deportation of foreigners as well as other police officers entrusted otherwise in the affairs of the Government of Assam to obtain fingerprints and photographs of suspected foreigners before or at the time of referring the case to the Foreigners Tribunals.

It is trite to point out here that in all the three categories of cases mentioned above, the persons referred to the tribunals are not yet affirmed as foreigners. Rather their status is that of doubtful citizens or suspected foreigners. As their status is not yet confirmed as that of foreigners, rather they are only suspected of being foreigners, they cannot yet be treated as the target group for any order that can be passed by the Central Government under Section 3 of the Foreigners Act.

Interestingly, in Safiya Begum v. Union of India160, Sayam Uddin v. Union of India161, Amina Khatunv. Union of India162 among others, it has been observed that under the Central Government Notifications dated 19-4-1958 and 17-2-1976, Government of Assam, Superintendents of Police and Deputy Commissioners (incharge of Police) have been delegated the power to make reference to the Foreigners Tribunal under Order 2(1) of the Foreigners (Tribunals) Order, 1964 to seek opinion as to whether the proceedee is a foreigner or not within the meaning of the Foreigners Act, 1946.

This is, however, not an accurate assertion.

Notification No. S.O. 590 dated 19-4-1958 has already been reproduced earlier in this paper. The Notification came out in 1958. The Foreigners (Tribunals) Order came out in 1964. The question of the Central Government delegating the power to the State Government to make a reference to the Tribunal could not have arisen there. The delegation was in respect of making orders of the nature specified in clauses (c), (cc), (d), (e) and (f) of sub-section (2) of Section 3 of the Foreigners Act, 1946 and under the Foreigners Order, 1948the nature and extent of which has already been discussed.

Under the Notification dated 17-2-1976, the Ministry of Home Affairs entrusted the Superintendents of Police and Deputy Commissioners (incharge of Police) under the Government of Assam functions of the Central Government in making orders of the natures specified in clauses (a), (b), (c) &(cc), (e) and (f) of sub-section (2) of Section 3 of the Foreigners Act within their respective jurisdiction subject to conditions mentioned therein which included the condition that exercise of such functions would be in respect of nationals of Bangladesh and that while exercising such functions, Superintendents of Police and Deputy Commissioners (incharge of Police) shall comply with such general or special directions as the Government of Assam or Central Government may issue from time to time.

There is nothing in this notification which suggests delegation of powers to make reference to Foreigners Tribunals under Para 2(1) to ascertain whether a person is or is not a foreigner.

What the State Government of Assam (vide Notification dated 19-4-1958) or Superintendents of Police and Deputy Commissioners (incharge of Police) (vide Notification dated 17-2-1976) have been empowered to do is to pass orders generally or specifically to any foreigner or class of foreigner regulating or restricting entry into India, departure of foreigners from India or presence or continued presence in India, all under Section 3 of the Foreigners Act.

There are, however, two notifications which were notified after the Foreigners (Tribunals) Order of 1964 had been notified by the Ministry of Home Affairs. They are reproduced below.

(1) No.1/1/64-(I)-F.III dated 3-10-1964: In exercise of the powers conferred by clause (i) of Article 258 of the Constitution, the President hereby entrusts to the Government of Assam, with their consent, the functions of the Central Government under the Foreigners (Tribunals) Order, 1964, subject to the following conditions, namely:

(a) that in the exercise of such functions the Government of Assam shall comply with such general or special directions as the Central Government may from time to time issue; and

(b) that notwithstanding this entrustment, the Central Government may itself exercise any of the said functions should it deem fit to do so in any case.

(2) No.1/1/64-(II)-F.III dated 3-10-1964: In exercise of the powers conferred by clause (i) of Article 258 of the Constitution, the President, with the consent of the Government of Assam, hereby entrusts also to the Superintendents of Police and the Deputy Commissioners (incharge of Police) under the Government of Assam within their respective jurisdictions the functions of the Central Government under the Foreigners (Tribunals) Order, 1964, subject to the following conditions, namely:

(a) that in the exercise of such functions the said Superintendent of Police and the Deputy Commissioners, (in-charge of Police) shall comply with such general or special directions as the Government of Assam or the Central Government may from time-to time-issue; and

(b) that notwithstanding this entrustment, the Central Government may itself exercise any of the said functions should it deem fit to do so in any case.

It is under these two notifications that the Government of Assam and the Superintendents of Police and Deputy Commissioners (in charge of Police) have been entrusted with the functions of the Central Government under the Foreigners (Tribunals) Order of 1964. These functions include making reference to the Tribunals as to whether a person is or is not a foreigner.

Pertinently, Para 2(1) of the Foreigners (Tribunals) Order of 1964 has now been amended163. In addition to the Central Government, the State Government or the Union territory administration or the  District Collector or the District Magistrate may also refer the question as to whether a person is or is not a foreigner to a Foreigners Tribunal.

The Superintendent of Police (B) can also make a reference if the official inquiry signed off by him leads him to conclude that the citizenship of the person concerned is doubtful.

(d) Reference under Section 6-A, Citizenship Act

Section 6-A was inserted into the Citizenship Act following the Assam Accord and it contains special provisions as to citizenship of persons covered by the Assam Accord. It connects the Foreigners Act and Foreigners (Tribunals) Order, 1964 with the Citizenship Act. Under Section 6-A, “detected to be a foreigner” means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 by a tribunal constituted under the said Order.

Under Section 6-A, it is the Foreigners Tribunal which will decide whether a person has been detected to be a foreigner or not. Under sub-section (3), every person of Indian origin who;

(a) came to Assam on or after the 1^st day of January, 1966 but before the 25^th day of March, 1971 from the specified territory;

(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and

(c) has been detected to be a foreigner;

would require to register himself and for such registration, it is the opinion of the Foreigners Tribunal holding such person to be a foreigner, that shall be deemed to be sufficient proof of the requirement that he has been detected to be a foreigner.

(e) Reference under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003

Similarly, the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 which provides for the creation of a National Register of Citizens also talks of opinions of the Foreigners Tribunals. As per Para 8, any person not satisfied with the outcome of the decisions of the claims and objections under Para 7 regarding publication of names in the National Register of Citizens, may prefer an appeal, before the designated Tribunal constituted under the Foreigners (Tribunals) Order, 1964 within a period of sixty days from the date of such order. Following the disposal of appeal by the Tribunals the names shall be included or deleted, as the case may be, in the National Register of Indian Citizens in the State of Assam.

Para 1-B of the Foreigners (Tribunals) Order of 1964 provides that any person referred to in Para 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 may prefer an appeal, on the terms and conditions specified therein, before the designated Tribunal constituted under the Order.

(f)Reference under the Citizenship Rules, 2009

This takes us to Part IV of the Citizenship Rules, 2009 which cover the registration process to be done in Assam in accordance with the Assam Accord. As per Rule 19(2) thereof an application for registration under sub-section (3) of Section 6-A, Citizenship Act shall be made in Form XVIII, by the person to the registering authority for the district in which he is ordinarily resident, within a period of thirty days from the date of his detection or identification as a foreigner or, as the case may be, within a period of thirty days of the appointment of the registering authority.

As per Rule 20, in case of such a person, if any question arises as to whether such person fulfils any requirement contained in the said sub-section (3) of Section 6-A; or the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 in relation to such person does not contain a finding with respect to any requirement contained in the said sub-section other than the question that he is a foreigner, then, the registering authority shall, within a period of fifteen days of the receipt of the application under sub-rule (2) of Rule 19, make a fresh reference to the Tribunal in this regard. In other words, the registering authority must seek the opinion of the Tribunal as to whether the person:

(a) came to Assam on or after the 1^st day of January, 1966 but before the 25^th day of March, 1971 from the specified territory; and

(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and

(c) has been detected to be a foreigner.

7.1 All abovementioned references hit by Section 3 of the Foreigners Act

Now, we have already highlighted in this paper that Section 3 of the Foreigners Act empowers the Central Government to make orders in respect of foreigners and only foreigners. The Central Government has entrusted the State Government of Assam with its functions in this regard. Superintendents of Police (Border) have also been empowered to pass orders of the natures specified in clauses (a), (b), (c) and (cc), (e) and (f) of sub-section (2) of Section 3. All of these, however, are in relation to foreigners.

The Tribunals constituted under the 1964 Order have ostensibly been created by the Government by invoking Section 3 and yet Para 2 of the 1964 Order says that the Tribunal shall determine whether a person is or is not a foreigner. Such a tribunal created under the 1964 Order which was notified under Section 3 of the Foreigners Act is an illegal entity as its task is in excess of what Section 3 mandates and is in fact in stark contrast to it.

The Foreigners Tribunals have been repeatedly tasked with adjudicating and detecting whether a person is or is not a foreigner or is or is not a foreigner of a particular class. Section 6-A of the Citizenship Act may be a statutory provision but it relies on the executive Order of 1964 for determination of citizenship of a person.  As the status of the persons who are referred to the Tribunals by the registering authority under Section 6-A is not that of foreigners, rather the Tribunal would detect whether they are foreigners or not, they are not the target group for any order that can be passed by the Central Government under Section 3.

A Tribunal which has been set up under Section 3 of the Foreigners Act which is targeted towards foreigners cannot determine claims of citizenship of persons. We have already discussed in detail that the Order setting up such Tribunals is ultra vires the Foreigners Act and consequently, the Constitution of India.

7.2 Possible remedy lies with civil courts

But if the Tribunals cannot answer the question as to whether a person is or is not a foreigner, then where would one go? After all, there is hint of an adjudication process in Section 9 of the Foreigners Act.

But Section 9 only deals with a particular aspect of the law of evidence which is burden of proof. But it does not point towards the forum where such a dispute can be resolved.

If we look at the Citizenship Act, 1955 we can see that Section 9 thereof deals with termination of citizenship and Section 9(2) exclusively mandates the determination of any question which might arise as to whether, when or how any citizen of India has acquired the citizenship of another country by an authority which may be prescribed in this behalf. Therefore, the Citizenship Act expressly indicates that the disputes which may arise with regard to the application of the Act may be settled by an authority which shall be prescribed by the Government.

But the Foreigners Act neither sets up any such authority nor authorises the Government to prescribe any authority for adjudication of any dispute arising out of any order passed under the Act.

But that cannot mean that no dispute can arise from any order passed under the Foreigners Act as Section 9 of the Act indicates about a possible scenario with regard to a question being raised as to whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description. If that is the case and a person has any grievance against an order passed under the Act and wants to challenge it, whose door can he knock?

The answer to this query can be found in the judgment of the Supreme Court in Union of India v. Ghaus Mohammad164. There the Supreme Court while quashing the order of the High Court held that:

7. The question whether the respondent is a foreigner is a question of fact on which there is a great deal of dispute which would require a detailed examination of evidence. A proceeding under Article 226 of the Constitution would not be appropriate for a decision of the question. In our view, this question is best decided by a suit and to this course neither party seems to have any serious objection. As we propose to leave the respondent free to file such a suit if he is so advised, we have not dealt with the evidence on the record on the question of the respondent’s nationality so as not to prejudice any proceeding that may be brought in the future.

Since the Foreigners Act does not provide for any particular authority to answer the question or adjudicate the dispute with regard to the person being or not being a foreigner, naturally the civil court will have jurisdiction to determine the same. The Supreme Court in Ghaus Mohammad165 quite logically held that such a question can be best decided by a suit.

However, the Gauhati High Court in Bahaluddin Sheikh v. Union of India166 had a separate view on that. In that case, the question before the High Court was: “whether in view of the existing special law for determination of citizenship issue, a civil suit is maintainable towards determination of one’s citizenship?”

In Bahaluddin167, the Gauhati High Court distinguishing Ghaus Mohammad168 observed:

39. … In Ghaus Mohammad169 it was held that a proceeding under Article 226 of the Constitution was not appropriate for a decision on the question as to whether the respondents therein was a foreigner. It was held that the question would stand best decided by a suit on which neither party had any serious objection. Unlike the present case, in the said case, there was no provision for determination of such issue by the Foreigners Tribunal. The determination was made by the Chief Commissioner of Delhi when he directed that the respondent should not remain in India after the expiry of 3 (three) days from the date on which the particular notice was served on him. The respondent instead of complying with the said order moved the High Court for a writ to quash the notice. It was in that context, the Supreme Court granted liberty to the respondent therein to pursue his remedy by filing a suit instead of initiating a proceeding under Article 226 of the Constitution of India. Apart from the fact that the issue before the Court was not as to whether the civil suit would be maintainable or not, that was also not a case of ousting the jurisdiction of the Foreigners Tribunals inasmuch as admittedly the forum of Foreigners Tribunal was not available in that case, unlike the instant case. Thus, in my considered opinion, the said case is of no help to the case of the petitioner.

We have already discussed in this paper that constitution of Foreigners Tribunals is not in consonance with the Foreigners Act and their constitution is de hors Section 3 and even offends the Constitution. As the Gauhati High Court had negated the application of Ghaus Mohammad169 on the presence of Foreigners Tribunals, if the Tribunals are ex facie illegal, the jurisdiction of the civil court would by default come into play.

The Gauhati High Court further downplayed the civil court’s jurisdiction by holding that in Ghaus Mohammad170 the issue before the Court was not as to whether the civil suit would be maintainable. However, when the Supreme Court specifically gave the liberty to the respondent therein to file a civil suit, irrespective of the fact whether the same was in issue or not, the Supreme Court has endorsed the jurisdiction of a civil court to decide the issue of citizenship.

That a civil court is entitled, under Section 9 of the Code of Civil Procedure171 (CPC, in short), to declare the status of a person as an Indian citizen has been recognised by a Division Bench of the Gauhati High Court in Moslem Mandalv. Union of India172.While holding the same, the Gauhati High Court observed therein that this position of law was also recognised in Ghaus Mohammad173.

We would like to cite three paragraphs of Moslem Mandal174herein.

(37) We deem it necessary to point out that under the scheme of the Foreigners Act, 1946, read with Foreigners (Tribunal) Order, 1964 (in short, “the 1964 Order”), the Tribunal, constituted under the 1964 Order, is required to give, on the “reference” made to it, only an “opinion” whether the person, proceeded against, is or is not a “foreigner”. For the purpose of rendering such an opinion, the Tribunal has to necessarily determine the question as to whether the person, against whom a “reference” is made, is or is not an Indian citizen. The question as to whether a person is or is not an Indian citizen can also be decided by a civil court at the option of the person, who is alleged to be a foreigner or held to be a foreigner by the Tribunal constituted under the 1964 Order, inasmuch as a civil court is entitled to pass a decree declaring the status of a person as an India citizen. By enacting the Foreigners Act and/or the 1964 Order, the power of the civil courts, to determine the status of a person as an Indian citizen, has not been taken away.

            *                                                     *                                                        *

(39) It is, thus, clear that on the basis of the pleadings of the parties in a writ proceeding and/or, on the basis of the documents placed on record in a writ proceeding, a court cannot determine the question as to whether a person is or is not a foreigner. The determination of the question, as to whether a person is or is not a foreigner, falls, when a “reference” is made to a Tribunal under the provisions of the Foreigners Act read with the 1964 Order, within the ambit of the powers of the Tribunal and, in other cases, by a civil court of competent jurisdiction. We may hasten to point out that so far as the Tribunal is concerned, it only renders an “opinion” with regard to the question as to whether the person alleged to be a foreigner is or is not a foreigner and, then, it is for the Central Government or the authorities, otherwise empowered, to decide as to whether such a foreigner needs to be deported from the territory of India or not. Thus, the procedure, adopted, in the writ proceeding, in the present case of determining, on the basis of the pleadings made in the writ proceeding and the documents annexed thereto, whether the writ petitioners were or were not foreigners, cannot be said to be a legally permissible procedure.

                                 *                                           *                                       *

(106) There is yet another reason, which leads us to hold that the standard of proof in a proceeding before the Tribunal, constituted under the 1964 Order, is same as that of the civil court and the reason is that a civil court is entitled, under Section 9 of the Code of Civil Procedure, to declare the status of a person as an Indian citizen. This position is recognised even in Union of India v. Ghaus Mohammed175 which the respondents have relied upon. When the civil court’s declaration, made under Section 9, is binding on the Government, it logically follows that the Tribunal cannot adopt a higher standard than the one, which is applied by the ordinary civil courts for the purpose of making a declaratory decree of the fact as to whether a suitor is or is not a foreigner.

The Division Bench of the Gauhati High Court has clearly recognised that a civil court could decide the question that a person is or is not a foreigner.

But in Bahaluddin176, the Single Judge Bench pointed out that the questions which the Division Bench had identified for determination did not include the question as to whether in view of the special law towards determination of citizenship, the civil court’s jurisdiction is ousted. Rather, one of the questions that was formulated by the Full Bench of the Gauhati High Court in Review Petition No. 22 of 2010 arising out of the judgment in Moslem Mondal177was “Whether the civil court has jurisdiction to entertain a suit for declaration that the plaintiff is not a foreigner?” This question, however, was not answered by the Full Bench. The Single Judge Bench in Bahaluddin178 went on to observe that as the issue was not before the Division Bench in Moslem Mondal case179, the issue cannot be said to have been conclusively determined to preclude it from answering the issue.

Eventually, in Bahaluddin180 the Gauhati High Court answered the question as “…it is hereby declared that the issue relating to citizenship being exclusively triable by the Foreigners Tribunals cannot be determined in civil suit and for that matter civil court jurisdiction is ousted in such matters.”

The reasoning employed by the Gauhati High Court can be divided into two parts. The first part is based on Section 9 CPC which deals with the scenarios when the jurisdiction of the civil court is expressly or impliedly barred. The latter part of the reasoning is based on the judgment of the Supreme Court in Sarbananda (1)181.

In para 38 of the judgment182, the High Court opined:

 … There is no manner of doubt that the provisions contained in the Citizenship Act, 1955 and the Foreigners Act, 1946 are all inbuilt provision and in case of requiring any determination relating to citizenship of a person, it is only by the Central Government and/or by the Foreigners Tribunal made applicable to the State of Assam, have jurisdiction over the same and by necessary implication, the jurisdiction of the civil Court stands ousted.

But what does CPC say regarding jurisdiction of the civil court? Section 9 CPC provides that “The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”

There is no express provision in the Foreigners Act which bars the jurisdiction of the civil court.

The High Court in Bahaluddin183, thus, was of the opinion that the jurisdiction of the civil court was impliedly barred due to the setting up of the Foreigners Tribunals. For that, the High Court relied upon State of U.P. v. Shah Mohammad184, Rajasthan SRTC v. Krishna Kant185, V. Kishan Rao v. Nikhil Super Speciality Hospital186 and Dayaram v. Sudhir Batham187.

Now, if we analyse carefully, we see that in Shah Mohammad189, the Supreme Court while dealing with an issue with regard to the termination of citizenship of the plaintiff held that civil court has no jurisdiction in view of the presence of Section 9 of the Citizenship Act.

Commenting on the said judgment, the Gauhati High Court stated that:

48.  In the said case, the particular determination fell on the Central Government ousting the jurisdiction of the civil court. In the instant case and for that matter in all cases pertaining to citizenship and as to whether a person is a foreigner or not fall within the jurisdiction of the Foreigners Tribunal as per the provisions of the Citizenship Act and the Foreigners Act aided by the Foreigners (Tribunal) Order, 1964 and cannot be determined by the civil court.190

It is true that as per Section 9 of the Citizenship Act, the determination of any question which might arise as to whether, when or how any citizen of India has acquired the citizenship of another country should be made by an authority which may be prescribed in this behalf. But the question with regard to Assam is not termination of citizenship. Rather as per Section 6-A of the Citizenship Act, it is concerned with detection of foreigners who, after being detected, can apply for registration. That apart, the analogy drawn by the High Court by juxtaposing Section 9, Citizenship Act with the detection of foreigners as per the Foreigners Act does not stand scrutiny as the Foreigners Act not only is silent about any special forum but also offers no scope for setting up any specialised tribunal/forum for detecting foreigners. Hence, the question of the jurisdiction of civil court being impliedly barred by the Foreigners Act does not arise.

Similarly, in Krishna Kant191 and Nikhil Super Speciality Hospital192, the facts and the issues involved were totally alien to Bahaluddin193 as because the Industrial Disputes Act, 1947194 already has an inherent mechanism to deal with industrial disputes whether arising out of a right or liability under the general or common law or under the Industrial Disputes Act. But the Foreigners Act does not have any inbuilt mechanism as such. Similarly, the Consumer Protection Act, 1986195 was well equipped with mechanisms to adjudicate such disputes.

In Dayaram196, the issue was whether the jurisdiction of the civil court was barred with regard to dispute arising out of a decision of the Scrutiny Committee. There the Supreme Court relying on the direction in Madhuri Patil v. Commr., Tribal Development197 held that the jurisdiction of the civil court was barred.

But in Madhuri Patil198, the Supreme Court had issued a slew of directions to streamline the procedure for the issuance of social status certificates. In Direction No. 12, the Supreme Court excluded the jurisdiction of the civil court. As Dayaram199 was also dealing with a similar issue, the Supreme Court relied upon Madhuri Patil200 in its decision. The same is not a precedent on the ouster of a civil court’s jurisdiction.

The law with regard to jurisdiction of the civil court was expressly discussed in Dhulabai v. State of M.P.201 Therein, the Supreme Court enumerated the circumstances wherein a civil court’s jurisdiction can be held to be excluded. They are as follows:

35.… (1) Where the statute gives a finality to the orders of the special tribunals, the civil court’s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.

We have already discussed in detail that the Foreigners Act does not in any manner empower the Central Government to set up Foreigners Tribunals. Quite obviously, the Foreigners Act too is silent about any such mechanism to deal with issue of adjudicating the dispute as to whether one is a foreigner or not.

There is nothing in the Foreigners Act which expressly or even impliedly bars the jurisdiction of the civil court. As per the judgment in Dhulabhai202, such is the encompassing nature of civil court’s jurisdiction that it can even examine the scheme of the Act where the jurisdiction of the civil court was expressly barred. The Foreigners Act does not even contain such express provision. As such, we are of the view that an inference as to the exclusion of the jurisdiction of civil court should not be readily made.

The Law Commission in its 272nd Report203 carried out an extensive assessment of statutory frameworks of Tribunals in India. While discussing the ouster of a civil court’s jurisdiction in matters where an alternate mechanism was available, the Law Commission noted that a civil court’s jurisdiction cannot be ousted by an executive order. It observed that a statute may have an express provision specifically excluding the jurisdiction of the civil court in respect of matters which otherwise are within its jurisdiction. Implied ouster would be where even without any express provision the jurisdiction of the civil court has been barred. However, presumption would be raised in favour of the jurisdiction of the civil court.

For the sake of argument, let us hold that the Foreigners Tribunals set up as per the Foreigners (Tribunals) Order, 1964 provide the necessary forum to deal with the issue being or not being a foreigner and provide sufficient remedy for redressal of any dispute.

But from the mode of references that can be made to Foreigners Tribunals, as discussed in the preceding paragraphs, we find that there is no procedure for a doubtful voter or a purported foreigner or a person who is aggrieved by any notice from any of the authority to directly approach the Foreigners Tribunal and prove himself of not being a foreigner. If that is so, then the entire scheme laid down under the Foreigners (Tribunals) Order, 1964 is not adequate.

This question, we hasten to add, would not have arisen had there been an express bar in the statute. But since we are talking about an implied bar, then it must be so that there is adequate alternate remedy provided in the Act itself which negates the role of a civil court. But in the present situation, the Act itself prescribes no remedy, nor does the 1964 Order.

The executive Order of 1964 under which the Tribunals are set up provides a remedy which is not sufficient enough as it provides a single window getaway somehow to cover the government agencies in their probe thereby prudently excluding the individual grievances. But this is not the proper reflection of the Foreigners Act as Section 9 itself indicates the nature of the question involved which is whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description.

There is nothing in the Act which allows only a particular entity to raise such a question. What Section 9 provides is the party on whom the burden of proof will lie in any adjudication involving the aforesaid question. It does not say that a person who is alleged to be a foreigner cannot himself move any proper forum for determining whether he is a foreigner or not.

Therefore, such categorical exclusion of the jurisdiction of the civil court does not appear to be steadfast both in the light of the Act as well as the remedy provided. If we consider that there is scope for adjudication of a dispute with regard to citizenship in view of the same being a crux in Section 9, the right to approach a particular forum must be equally available to both parties. Since the Foreigners Tribunals as well as the procedure provided for reference to the Foreigners Tribunals offer a partial scope for determination of the question of citizenship, hence the mechanism cannot be held to be adequate enough and should not bar the jurisdiction of the civil court.

From a basic understanding of the Foreigners Act including Section 9, it is clear that in view of the absence of any particular forum or the absence of statutory authority to set up a forum for deciding a question as to whether one is or is not a foreigner, it is clearly indicative of the availability of the jurisdiction of the civil court. As hinted by the Supreme Court in Ghaus Mohammad204, a civil court offers an extensive mechanism to deal with the issue of citizenship including the availability of the option for any party, including an individual claimant to approach the civil court for a declaration.

The latter part of the reasoning employed by the Gauhati High Court in Bahaluddin205 was based on the observations made by the Supreme Court in Sarbananda (1)206. The High Court in paras 57 to 59 of the judgment207stated:

57. Finally, in my considered opinion, after the judgment in Sarbananda Sonowal208, there cannot be any manner of doubt in the matter. In the said case, the Illegal Migrant (Determination by Tribunal) Act, 1983 was put to challenge on the ground of negating the constitutional mandate contained in Article 355209. Striking down the said Act after holding it to be wholly unconstitutional, the Supreme Court issued the following directions:

                                               *                                    *                                                     *

(3) All cases pending before the Tribunals under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided in the manner provided in the Foreigners Act, the Rules made thereunder and the procedure prescribed under the Foreigners (Tribunals) Order, 1964.

(4) It will be open to the authorities to initiate fresh proceedings under the Foreigners Act against all such persons whose cases were not referred to the Tribunals by the competent authority whether on account of the recommendation of the Screening Committee or any other reason whatsoever.

(5) All appeals pending before the Appellate Tribunal shall be deemed to have abated.

(6) The respondents are directed to constitute sufficient number of Tribunals under the Foreigners (Tribunals) Order, 1964 to effectively deal with cases of foreigners, who have illegally come from Bangladesh or are illegally residing in Assam.

58. 58. In para 83 of the judgment210, summing up the conclusion and striking down the IMDT Act, 1983 as ultra vires the Constitution, it has been held thus:
59. 83. To sum up our conclusions, the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 are ultra vires the Constitution of India and are accordingly struck down. The Illegal Migrants (Determination by Tribunals) Rules, 1984 are also ultra vires and are struck down. As a result, the Tribunals and the Appellate Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall cease to function. The Passport (Entry into India) Act, 1920, the Foreigners Act, 1946, the Immigrants (Expulsion from Assam) Act, 1950 and the Passports Act, 1967 shall apply to the State of Assam. All cases pending before the Tribunals under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided in the manner provided in the Foreigners Act, the Rules made thereunder and the procedure prescribed under the Foreigners (Tribunals) Order, 1964. In view of the finding that the competent authority and the Screening Committee had no authority or jurisdiction to reject any proceedings initiated against any alleged illegal migrant, the orders of rejection passed by such authorities are declared to be void and non est in the eye of the law. It will be open to the authorities of the Central Government or State Government to initiate fresh proceedings under the Foreigners Act against all such persons whose cases were not referred to the Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 by the competent authority whether on account of the recommendation of the Screening Committee or any other reason whatsoever. The appeals pending before the Appellate Tribunals shall be deemed to have abated.
60. 59. In terms of the observations and directions, apart from the fact that the Passport (Entry into India) Act, 1920; the Foreigners Act, 1946; the Immigrants (Expulsion from Assam) Act, 1950 and the Passports Act, 1957 (sic), shall apply to the State of Assam, all cases pending before the Tribunals under the IMDT Act, 1983, shall also stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided in a manner provided in the Foreigners Act, the rules made thereunder and the procedure prescribed under the Foreigners (Tribunals) Order, 1964. Had it been a case of jurisdiction being available with the civil court, the whole controversy relating to IMDT Act would not have arisen and the Supreme Court would have made it explicitly clear in its directions contained in the said judgement. The very fact that all pending cases before the IMDT were to be transferred to the Foreigners Tribunals and the Central Government was directed to constitute sufficient number of Tribunals under the Foreigners (Tribunals) Order, 1964 to effectively deal with the cases of foreigners, who have illegally come from Bangladesh or are illegally residing in Assam, would negate the plea that there is no ouster of jurisdiction of civil court. The directions in Sarbananda Sonowal211 are only in the form of consolidating the position to the determination as to whether a person is a foreigner or not, is within the exclusive jurisdiction of the Foreigners Tribunals to be decided as per the provisions of the Citizenship Act, 1955 and the Foreigners Act, 1946 with the aid of the Foreigners (Tribunals) Order, 1964.”

The High Court reasoned that because the Supreme Court had directed that the pending cases be transferred to the Foreigners Tribunals and more Tribunals be set up in Assam, the Tribunals have received the approval of the Supreme Court. But that is not the case.

We have already highlighted earlier in the paper that in Sarbananda (1)212, the main issue was whether the IMDT Act and the Rules made thereunder were ultra vires the Constitution of India. There was no issue with regard to the legality of the Foreigners (Tribunals) Order, 1964 and the Foreigners Tribunals constituted under the same before the Supreme Court. The Supreme Court in Sarbananda (1)213 after scrapping the IMDT Act simply directed the cases to be transferred to the existing forums which were the Foreigners Tribunals. The Supreme Court had no opportunity to venture into the vires of the Tribunals in the said judgment as their legality was never the issue before it.

In Bahaluddin214, the High Court held, “Had it been a case of jurisdiction being available with the civil court, the whole controversy relating to IMDT Act would not have arisen and the Supreme Court would have made it explicitly clear in its directions contained in the said judgment.”

An overriding response to that reasoning is available in Bahaluddin215itself. Just as Bahaluddin216 highlighted that the jurisdiction of the civil court was not an issue for determination before the Division Bench in Moslem Mandal217and so the observations made in that context were not binding precedent, in the same way, the conflict of jurisdiction between the civil courts and the Tribunals was never raised before the Supreme Court and the Supreme Court had no opportunity to even examine the feasibility of the civil courts as the Foreigners Tribunals established under the 1964 Order still existed. There was no controversy as such with regard to the legality of the Foreigners Tribunals or the jurisdiction of the civil courts before the Supreme Court and it was logical enough for the Supreme Court to transfer the running cases to the existing forums i.e. the Foreigners Tribunals after scraping the IMDT Act.

We are, as such, of the view that the judgment of the Gauhati High Court in Bahaluddin218 is not the correct interpretation of the existing law on the jurisdiction of the civil courts. Rather, the findings in Ghaus Mohammad219 and Moslem Mandal220 properly posit the jurisdiction of a civil court in such matters.

We are of the opinion that the jurisdiction of the civil court exists in view of the following:

a) There is no exclusive bar upon the jurisdiction of the civil courts under the Foreigners Act.

b) The passing of the 1964 Order and setting up of Foreigners Tribunals do not impliedly bar the jurisdiction of the civil courts on two counts:

• The mechanism established under the 1964 Order and the Foreigners Tribunals do not provide adequate remedy to anyone who is aggrieved on being notified as a doubtful voter/suspected foreigner.
• Section 3 of the Foreigners Act does not empower the Central Government to set up Foreigners Tribunals by passing an executive order to decide whether a person is or is not a foreigner. The order itself is bad in law.

c)The direction of the Supreme Court in Sarbananda (1)221 with regard to transfer of the existing cases from the scrapped Tribunals under the IMDT Act to the Foreigners Tribunals should not be read as validating the status of the Foreigners Tribunals by excluding the jurisdiction of the civil courts as the issue regarding jurisdiction of the civil courts was never in issue before the Supreme Court.

8. Conclusion

Through this paper, we have tried to show that the Foreigners (Tribunals) Order, 1964 is invalid being in the teeth of not just the Foreigners Act but also the Constitution of India. Foreigners Tribunals, as they exist today, having been set up under the Foreigners (Tribunals) Order, 1964 are illegal and unconstitutional entities that have been tasked with deciding the crucial issue as to whether a person is or is not a foreigner. Any adverse opinion by such a Tribunal impacts not just the person before the Tribunal but his family members and his progeny and which has the potential of not just encumbering the enjoyment of his fundamental rights but may also send him to a detention camp or get him deported on an order under Section 3 of the Foreigners Act. It cannot be conceived that such opinions which have such serious ramifications come from bodies whose existence is based on bad law.

Either the Foreigners Act, 1946 must be amended or a new statute must be enacted to set up a proper adjudicatory forum for determination of citizenship of persons whose nationalities are doubtful. Despite the amendments made from time to time to the Foreigners Act, the nature and scope of Sections 3 and 9 have remained the same since the time the Act was enacted. The magnitude of the problem that is plaguing Assam has never been the considering factor in a potential revamp of the provisions of the Foreigners Act. It is perhaps because of the incongruities that exist in the Foreigners (Tribunals) Order, 1964 vis-à-vis the parent Act and the Constitution, that the functioning of the Tribunals has been a subject of constant scrutiny.

We suggest that there must be legislative sanction not just of an adjudicatory body but of a proper mechanism for investigation or enquiry of potential doubtful citizens prior to determination of the same in the forum. There must be proper statutory safeguards therein in line with the Constitution of India.

Until the Foreigners Act, 1946 is amended or a new statue is enacted, civil courts should be the appropriate forum for giving an opinion as to whether an individual is or is not a foreigner. It has already been discussed in detail that there is no statutory encumbrance for a civil court to pass a judgment to that effect. The judgment in Bahaluddin222 does not reflect the correct legal stance on the jurisdiction of the civil courts vis-à-vis the determination of foreigners under the Foreigners Act.

The procedure adopted by the Foreigners Tribunals is essentially in the nature of a civil proceeding and there is no question of the civil courts failing to determine the question of citizenship the same way, maybe better, than what is being done by the Foreigners Tribunals. Why we say this is because of the elaborate mechanism laid down in the CPC which ensures that everybody gets his due share of the right to participation by filing his pleadings and supporting them with appropriate evidence. As discussed earlier, the references made to Foreigners Tribunals are a one-way traffic and there is awfully no scope for an individual with disputed citizenship to move the Tribunal against any order that may be made under Section 3 of the Foreigners Act. Per contra, a declaratory suit can be filed not only by the person whose citizenship is in question but also by the government agencies or the State. To counter the question of delay, special civil courts manned by experienced Judges having 5-10 years of service behind them or even retired Judges should be set up which will deal only with the suits relating to foreigners.

However, if one persists with the view that the Foreigners Tribunals provide the best way to tackle the issue, then we would stress again that a statute be enacted or necessary amendments be made in the existing statue to accommodate such Tribunals. Otherwise, there is no way that any opinion tendered by a Foreigners Tribunal would sustain constitutional scrutiny as the genesis of the Order giving birth to such a Tribunal is illegal and unconstitutional.

---

*Assam Judicial Service.

**Assam Judicial Service.

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201(1968) 3 SCR 662.

202(1968) 3 SCR 662

203Report No. 272 on Assessment of Statutory Frameworks of Tribunals in India (October, 2017).

204(1962) 1 SCR 744.

2052013 SCC OnLine Gau 108.

206(2005) 5 SCC 665.

207Bahaluddin Sheikh v. Union of India, 2013 SCC OnLine Gau 108.

208(2005) 5 SCC 665.

209http://www.scconline.com/DocumentLink/D66r7wpV.

210Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665.

211(2005) 5 SCC 665.

212(2005) 5 SCC 665.

213(2005) 5 SCC 665.

2142013 SCC OnLine Gau 108.

2152013 SCC OnLine Gau 108.

2162013 SCC OnLine Gau 108.

217(2010) 2 GLT 1.

2182013 SCC OnLine Gau 108.

219(1962) 1 SCR 744

220(2010) 2 GLT 1.

221(2005) 5 SCC 665.

2222013 SCC OnLine Gau 108.