FOREIGNERS’ TRIBUNALS (Syllabus: GS Paper 2 – Polity)

Context: Recently, the Supreme Court overturned a Foreigners' Tribunal decision, declaring an Assam resident a citizen of India.

Foreigners’ Tribunals

• About:  These were established under The Foreigners Act, a colonial legislation that preceded the Constitution of India, and which was meant to deal with foreigners rather than citizens.
• Executive Order of 1964: They were established in 1964 by an executive order of the Home Ministry, even though under Article 323B of the Constitution, tribunals may be established by “the appropriate legislature” by “law”.
• Definition of Foreigner: Under Section 2(a) of the 1946 Act, “a foreigner means a person who is not a citizen of India”. 

oThus, it will be applicable only to persons against whom there is strong evidence of being a foreigner in the sense that they were caught while entering India, or they were in possession of a passport of another country.

• Inadequate Notices: Although Paragraph 3(1) of Foreigners’ Tribunal Order of 1964 mandates that notices shall mention the “main grounds”, notices issued by FTs generally do not mention any ground, and people have to defend themselves without knowing the charges.

Supreme Court Rule

• Section 9 of The Foreigners Act, 1946: It places the burden of proof on the person alleged to be a foreigner.
• Supreme Court's Query: The SC questioned whether Section 9 allows the Executive to randomly accuse someone of being a foreigner without substantial evidence.
• Requirement for Material Evidence: The court emphasized that the accused's burden of proof under the Foreigners Act arises only after the state shares the material supporting the allegation.
• Arbitrary Discretion of Authorities: The court criticized the arbitrary initiation of proceedings without primary material evidence, highlighting the serious consequences for the accused.
• Mukesh Singh vs State (2020): The SC reiterated that the initial burden of proof rests on the prosecution, even in reverse burden cases.
• Noor Aga vs State of Punjab (2008): The court stated that the prosecution must prove basic facts before shifting the burden to the accused.