In May 2016, the BJP rode to power in Assam on the promise of freeing the state of âillegalâ migrants and corruption. Weeks after taking oath on 5 June, Chief Minister Sarbananda Sonowal held a meeting with all the FT members of the state. No other state in the country was facing a âgrave situation because of infiltration of foreigners like Assamâ, Sonowal told them, and added that the members âhave got a golden opportunity to work for a national causeâ. The CM also said no Indian citizen âshould be harassed during the process of detection of foreignersâ and that the process âshould be transparentâ.
A year later, the contracts of nineteen FT members were terminated because their âperformance was unsatisfactoryâ. The Telegraph quoted an anonymous source claiming that the Assam government was âunhappy with some of the ordersâ by these members, âwhere the individuals in question were declared ânot foreignersâ, contrary to submissions made by policeâ. The source added that the state government had âalready challenged more than twenty such orders in Gauhati High Courtâ. A sacked member anonymously told journalist Sangeeta Barooah Pisharoty, âMost of the cases that came before me couldnât be declared foreigners because they had all the papers. How could I have gone against the rules?â
Data from the FTs indicate that the new regime did bring about a change in their functioning. For instance, government figures show that a total of 4,072 persons were declared âforeignersâ by the FTs in 2015, and 5,096 persons the next year. But in 2017, the numbers spiked to 15,541. In 2018, by August, 13,558 persons had been declared âforeignersâ. It was alleged that the interference of the executive in the FTs had also increased.
Terminated FT members moved the Gauhati High Court against the government order. One of the petitioners argued that the performance of the members should be âmonitored by a Bench of the High Court and not by executive officersâ. Submissions made by the state government and the high court in their affidavits during the proceedings of these cases revealed how critically performance appraisal of FT members was done by the Home and Political Department of the Assam government. Such reviews by the government curtailed the judicial independence of the FTs and laid it bare to the contentious influence of the executive.
FTs function in the midst of a jugalbandi between the Home and Political Department of the state government and the Gauhati High Court. The court interviews candidates for selection as FT members and monitors the functioning of FTs as per the apex courtâs order, but the members are appointed and their salaries are paid by the state government. The salaries of the members are paid by the state.
A state government affidavit in the case said that the high court had âexpressed the view in the monitoring meetings that the performance of the Foreigners Tribunal Members needs to be monitored and reviewedâ by the government. âPerformanceâ of the members has always been an important topic at the monitoring committee meetings, the affidavit said. âGovernment is of the view that the performance of Members is a key for success of detection of foreigners in Assam and hence, the performances were main indicator for granting extension.â
What exactly the state government meant by âperformanceâ and how it was measured became evident in a document annexed to the affidavit. In a âperformance appraisalâ report dated 30 April 2017, the state government compared how many cases were disposed of by members and in how many of them the suspect was declared a âforeignerâ. The criterion for terminating the nineteen members appeared to be that they had declared a comparatively lower percentage of people as âforeignersâ, even though their rate of case disposal was in some cases higher than those of the retained members. The performance of seventy-two members was listed in the report, and eighteen of them were marked as ânot satisfactoryâ by the state government. All but one among them had declared less than 10 per cent of cases as âforeignersâ.
In Dhubri, Karthik Ray had disposed of nearly 26 per cent of his cases, declaring only 1.32 per cent as âforeignersâ. His performance was ânot satisfactoryâ; whereas Narayan Nath, who got âgoodâ in his review and was retained, disposed of 15.85 per cent of his cases but declared over 34 per cent of those as âforeignersâ. In Nagaon, out of the 621 cases Mamoni Rajkumari disposed of, she declared only fifty persons as âforeignersâ and got a performance appraisal of ânot satisfactoryâ; while Moonmoon Borah, declaring 273 âforeignersâ from 401 cases, received a âgoodâ review. In Mangaldoi, Babita Das got ânot satisfactoryâ even after declaring 42.95 per cent of cases as âforeignersâ, probably because she could dispose of only 156 cases (11 per cent), an abysmally low number on the chart. Ray told the New York Times that âmost of the referencesâ that police made to his tribunal to investigate suspected foreigners âwere against Muslimsâ. He said, âYou have to declare âforeignersâ means you have to declare the Muslims.â
Rajkumari, who was formerly member of FT No. 6 of Nagaon district and was one of the members who petitioned the high court, told me that there was pressure from the government to dispose of a case within sixty days and that the FTs often suffered from manpower shortage, including that of peons, typists and clerks. The state government, however, denied any allegation of bias when I approached officials for a response for my story.
L.S. Changsan, the then principal secretary in the Home and Political Department, told me it was in the law that the FTs dispose of cases within sixty days. She said the allegation that the Border Police was given targets to make a certain number of references to the FTs was âcompletely wrongâ. âBuilding up institutions takes time,â she said, âand we are empowering them (FTs) to enhance their capacity in every way.â
On 22 December 2017, in an order on the petitions by the terminated members, the Gauhati High Court upheld the scrutiny of FT orders by the executive. âThere has to be a mechanism in place to scrutinize the opinions of the FTsÂ for the purpose of makingÂ a conscious decision as to whether such opinions are required to be assailed before a higher forum,â the order said. âTo that extent, constitution of the State Level Screening Committee and District Level Screening Committees cannot be faulted with though considerable arguments had been advanced that the executive could not have scrutinized the opinions given by the Members of FTs.â
The court said that since references are made by the state, the state âcan certainly form Committees to scrutinize the opinions renderedâ. The court set aside the government order and noted that it would be âobligatory for the High Court to assess the petitionersâ to decide whether an extension should be granted or not.
In February 2018, the state government was asked by a member of the legislative assembly (MLA) from the AIUDF whether people were declared as âforeignersâ despite their possessing proper documents. The government told the assembly that no such case of âbiasâ was reported and, moreover, the âmatters of the FTs are directly monitored by the Honourable Gauhati High Courtâ.
Â (Published with permission from Harper Collins Publishers)