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The Supreme Court has issued notice in a plea challenging the constitutionality of the Foreigners (Tribunals) Amendment Order, 2019. Passed in May this year, this 2019 Order amends the procedure for appeals concerning persons who have not been included in the National Register of Citizens (NRC) and whose claims against such non-inclusion have been rejected.
Two petitions have been filed by the All Assam Minorities Students Union (AAMSU) and the Jamiat Ulema I Hind (Arshad Madani), through advocate Fuzail Ahmad Ayyubi, assisted by advocates Mustafa Khaddam Hussain and Ibad Mushtaq. Senior Advocates Kapil Sibal and Salman Kurshid appeared in the matter.
As per the petition filed by AAMSU, the 2019 Order is in stark violation of the fundamental liberties of a large number of persons guaranteed under Articles 19 and 21 who have either not been included in the draft NRC for the State of Assam and those who will be preferring an appeal after their non-inclusion in the final NRC.
It is contended that the newly introduced provisions give rise to ambiguity when it comes to filing appeals against non-inclusion in the NRC, particularly in view of the procedure already laid down in Paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. Paragraph 8 of the Schedule to the 2003 Rules only provides that an aggrieved person may prefer an appeal within a period of 60 days from the date of order of rejection of claims/objection.
Further, it is argued that the challenged provisions of the 2019 Order seek to bypass the procedure already laid down in Paragraph 3 of the Foreigners (Tribunals) Order, 1964.
A specific objection is raised to Clauses (1), (6) and (10) of Paragraph 3A and Paragraph 3B of the 2019 Order.
As per Clause (1) of Paragraph 3A, a person may file an appeal against non-inclusion in the NRC only upon production of a certified copy of the rejection order received from the NRC Authorities along with the grounds of appeal.
Notably, under the current provisions, there is no provision for condonation of delay nor any safeguard that the NRC authorities are obligated to issue a certified copy of the order in a time-bound manner.
Clause (6) provides that the District Magistrate may make a reference to the Tribunal for its opinion on whether an appellant is a foreigner or not within the meaning of Foreigners Act, 1946. As per the provision, such reference shall be deemed to be a reference in terms of sub-para (1) of Paragraph 2 of the 1964 Order.
As per the petitioner, this bypasses an entire procedure for appeal already been laid down under Paragraph 3 of the 1964 Order. The petitioner argues,
“…Clause (6) of Paragraph 3A of the Amendment Order, 2019 provides that if such a reference is made by the District Magistrate, the same shall be dealt with by the Tribunal along with the appeal under Paragraph 3A of the Amendment Order, 2019 thus resulting in complete jumbling up of the two distinct judicial process…”
Paragraph 3B of the 2019 order also presents a similar anomaly, the petition goes on to state. This provision states that in cases where a person has not preferred an appeal within 60 days under Paragraph 8 of the Schedule to the 2003 Rules, the concerned Authority may refer to the Tribunal the question as to whether such a person is a foreigner or not.
Further, it is provided that this reference shall also be dealt with by the Tribunal as per the scheme provided under Paragraph 3A of the 2019 Order and not under Paragraph 3, which had been relied upon so far as the procedure for disposal of such questions.
Clause (10) of the newly introduced Paragraph 3A states that the Tribunal may issue notice for hearing in an appeal only if it finds merit in the appeal based on the records produced by the District Magistrate concerned. The petition argues that such a procedure may entail the denial of an appellant’s opportunity to be heard. It states,
“…the appeal may also be rejected at the threshold by the Tribunal without even granting an opportunity for hearing to the Appellant…
… the Tribunal is under an obligation of granting an opportunity for hearing only at the stage of hearing and not if the Tribunal otherwise decides to not to issue the notice at all upon production of records as provided under Clause (10) ofParagraph 3A contained in the Amendment Order, 2019.”
The AAMSU has contended that these new procedures for appeal against non-inclusion in the NRC under the 2019 Order are prone to bias and so unreasonable that it may lead to denial of justice. Therefore, it has challenged the same, more so in view of the crucial task assigned to the NRC tribunals as the final adjudicatory authority. The petition states,
“It is submitted that while the Tribunals have been entrusted with a very crucial task of being the final adjudicatory authority with respect to appeals arising out of rejection of claims by the NRC authorities, the purpose of setting up such Tribunals for identification of foreigners and determination of Indian citizenship will stand frustrated if unfairness, unreasonableness and arbitrariness is allowed to creep into the procedure and to thwart the entire gigantic exercise.”
[Read the AAMSU Petition]