Story of two orders

THE Supreme Court, while striking down the Illegal Migrants (Determination by Tribunals) Act, 1983, had directed that "all cases pending before the tribunals under the IMDT Act 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 in the Foreigners (Tribunals) Order, 1964".

However, the Ministry of Home Affairs issued two notifications: one called the Foreigners (Tribunals) Amendment Order, 2006, and the other called Foreigners (Tribunals for Assam) Order, 2006. Through the notification on the Foreigners (Tribunals) Amendment Order, 2006, the Foreigners (Tribunals) Order, 1964, was made applicable to the whole of India except Assam; through the second notification, a new set of laws was created exclusively for Assam.

Under the Foreigners (Tribunals) Amendment Order, as well as the Foreigners (Tribunals) Order, 1964, the onus of proving citizenship is on the suspected `foreigner'. But under the Foreigners (Tribunals for Assam) Order, 2006, the onus of proof was on the complainant, as under the IMDT Act, 1983.

Paragraph 2 (1) of the Foreigners (Tribunals) Order, 1964, states that the Central government may, by order, refer the question of a person's citizenship status (within the meaning of the Foreigners Act, 1946) to a tribunal to be constituted for the purpose.

However, paragraph 2 of the quashed Foreigners (Tribunals for Assam) Order, 2006, states that the Central government shall, by order, refer the question to a tribunal to be constituted for the purpose, making it mandatory for the government to refer such cases to such tribunals. On the other hand, going by paragraph 3 of the Foreigners (Tribunals) Order, 1964, the tribunals are to take up the complaints; the accused should be given a copy of the reasons for which he/she is suspected to be foreigner and given a reasonable opportunity to defend his case before the tribunal.

However, in paragraph 3 of the Foreigners (Tribunals for Assam) Order, 2006, the tribunals were vested with special powers to determine whether there was sufficient ground for proceeding against the suspected person.

Opponents of the Order argued that this special provision amounted to passing the onus of proof to the complainant (officer or authority specified), as under IMDT Act, 1983.

Sushanta Talukdar