Case Description

The court must decide whether the 2019 amendment to the Foreigners (Tribunal) Order, 1964 imposes unreasonable and/or arbitrary conditions on persons appealing exclusion from the National Register of Citizens. 

Background

On 2 July, 2019 the All Assam Minority Students Union (AAMSU) filed a Public Interest Litigation challenging the Foreigners (Tribunal) Amendment Order, 2019 under Article 32 of the Constitution.

 

The AAMSU is a student organization that represents minority students in Assam. It considers itself an important stakeholder in the National Register of Citizens (NRC) process, actively seeking to represent the interests of those excluded from the July 2018 draft. It is an intervener in the Supreme Court case pertaining to the NRC.

 

The Union government published the first complete draft of the NRC on 30 July, 2018, under the Supreme Court's supervision. This draft excluded nearly 4 million people. Subsequently, the court directed the NRC State Coordinator’s Office to implement a standard operating procedure for disposing claims and objections. The court gave the State Coordinator a year to dispose claims through the procedure and set the deadline for the final draft as 31 July, 2019.

 

Individuals excluded from the NRC may appeal their exclusion to the Foreigners Tribunals. The Tribunals were established by the Union government under the Foreigners (Tribunal) Order, 1964, in the exercise of its powers under the Foreigners Act, 1946. The 1964 Order has been amended several times since, and most recently in May 2019.

 

The AASMU has challenged the 2019 Amendment on the ground that it violates the fundamental rights guaranteed under Articles 19 and 21 of the Constitution for persons excluded from the NRC. In particular, it argues that the 2019 Amendment introduces unreasonable and arbitrary conditions on individuals seeking to appeal exclusion. It has challenged Clauses (1), (6), (10) of Paragraph 3A and the entirety of Paragraph 3B:

  • Paragraph 3A, Clause (1): introduces an unjust ambiguity in the appeals process. Clause (1) requires an appellant to produce a certified copy of the rejection order received from NRC Authorities, whereas Paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 provides for a 60-day period for appealing from the date of the order of rejection. There exist no provisions requiring the NRC authorities to produce a certified copy of rejection orders in ‘a time bound manner’.
  • Paragraph 3A, Clause (6) and Paragraph 3B: confound two distinct judicial processes – an individual appealing exclusion and the authorities referring the question of foreigner status to the Tribunals.
  • Paragraph 3A, Clause (10): denies the appellant the opportunity to be heard by granting the Tribunals the power to reject an appeal at the threshold.

 

On 15 July, the court issued notice to the Union of India and State of Assam.

Issues

2) Does the 2019 amendment confound two distinct judicial processes – appealing exclusion and fresh determination of foreigner status - by including Paragraph 3A, Clause (6) and Paragraph 3B?

1) Is the appeals process - requiring an appellant to produce a certified copy of the rejection order within 60 days of the order's date, without requiring NRC authorities to issue the certified copy in a timely manner - unjustly ambiguous?

3) Does Clause (10) of Paragraph 3A deny an appellant the right to be heard?

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