Abdul Bari Masoud | Caravan Daily
NEW DELHI – Expressing solidarity with the people of Assam, former Supreme Court judges on Sunday severely criticised the functioning of foreigners’ tribunals (FTs) mandated to determine citizenship and detect illegal migrants. These FDs have, so far, declared more than 100,000 people foreigners. Of these, 63,959 were declared foreigner through ex-parte proceedings.
Speaking as a jury member of a two-day People’s Tribunal organised on NRC issue here, the famed Supreme Court judge, Justice Madan B Lokur (retd), came down heavily on the FTs saying they have been functioning in an “arbitrary” manner and do not have a set procedure.
“The tribunals have been apparently functioning in a very arbitrary manner. There are so many of them and the procedure is not outlined. Each tribunal can devise its own procedure. So, if you have 100 tribunals you have 100 procedures. Isn’t there a possibility of some uniformity in all these procedures?” said Justice Lokur.
He was also critical of the ex-parte verdicts which he said was the direct manifestation of lack of uniformity in the procedure. “You have complaints against functioning of these tribunals. You have responses which show to us that two-thirds of the orders passed by the tribunals are ex parte because there is no clear procedure that has been followed,” he observed.
The FTs, a quasi-judicial institution established under the Foreigners (Tribunal) Orders, 1964, came into existence in 1985 after the Assam Accord. The Supreme Court gave a go-ahead to the Assam’s BJP-led government to increase the number of FTs from the current 100 to 300 immediately.
On sending suspected foreigners to the detention camp, Justice Lokur said the situation in Assam concerning the detention of those who could not prove their Indian citizenship was perturbing. He pointed a change in India whereby the Indian jurisprudence which puts a premium on personal liberty and prioritises it over detention or custody is being departed from. Hence, he said if a person’s name is not included in the NRC, the first option exercised in most cases was to put him/her in a detention centre.
“Now, this is a change we are seeing across the country which is to say that detention or jail in IPC cases really becomes the first option, whereas the jurisprudence of our country has been that you should be on bail, you should not be in custody. So, why is detention becoming the first option for those persons who are not in the NRC?” he said.
The Supreme Court, in an order passed earlier this year, had said that any person who had been in detention centres for a period of three years or more in Assam should be released with some conditions. However, Justice Lokur questioned the need for such an order and the disturbing trend with the Indian authorities to choose detention over human rights for the people in Assam.
Recalling that the Supreme Court had ruled that anyone in detention for three years should be released, he asked why anyone should be detained in the first place. It’s a matter of human rights that we first put a person in custody, and then figure out what should be done.”
Referring to the minor spelling mistake in the documents of the applicants, Justice Lokur said it is matter of grave concern that minor things caused huge loss of fundamental rights to thousands of people. “We should be very careful as it is a matter of a person’s life and liberty and the transcription of names from one language to another is bound to have variations in spelling.”
Justice Lokur warned that India as emerging economy and power cannot overlook the International laws and covenants.
Calling for solidarity with millions of people excluded from the NRC list, another retired Supreme Court judge, Justice Kurien Joseph, said most of these unfortunate people are poor and were not provided the legal assistance. It is the duty of state to provide legal aid to such vulnerable sections of the society, Justice Kurien emphasised.
In his observations, Prof Faizan Mustafa, vice-chancellor of NALSAR University of Law, said he did not sleep after hearing heart-breaking testimonies. Taking a dig at the Hindutva proponents, Prof Mustafa said the whole exercise of NRC violates the two concepts advocated by the Indian right (RSS-BJP) that is the Akhand Bharat and Vasudhaiva Kutumbakam (the world is one family).
How they (RSS-BJP) can achieve this dream of Akhand Bharat and prove that the world is one family, he posed the question to the proponents of this exercise. The way the whole NRC is being done by the selective implementation of the Law, he pointed out.
Taking a dig at the former chief of CAG Vinod Rai for his presumptive losses, he said Rai should be tasked to assess the human cost of such exercise.
Another jury member, Deb Mukherjee, former envoy to Bangladesh, warned against extending the NRC to the rest of the country. “NRC is extending to rest of India under the normal circumstances, but circumstances are not normal and intentions are not hidden, he said. Echoing his views, Ms Syed Hamid said we must take a lesson from Assam as every single testimony is like a stab in the heart.