AAMSU Challenges Foreigners (Tribunal) Amendment Order 2019 In SC [Read Petition]

The All Assam Minority Student's Union (AAMSU) has filed a petition under Article 32 of the Constitution challenging the constitutional validity of the Foreigner's (Tribunals) Amendment Order, 2019 which was issued by the Central Government on May 30th, 2019, in pursuance of its power under Section 3 of the Foreigner's Act, 1946.

It has been contended in the petition that the Order is violative of the fundamental liberties guaranteed under Article 19 and 21 of a large number of persons who have either

i) not been included into the draft National Registrar of Citizens (NRC) and

ii) those who will be preferring an appeal after their non-inclusion in the final NRC scheduled to be published later this month and after their claims have been rejected.

The petition filed through Advocate Fuzail Ahmed Ayyubi challenges Paragraphs 3A and 3B of the Order, and in particular- Clauses (6) and (10) of Paragraph 3A and Paragraph 3B.

The Supreme Court monitored NRC updation process in Assam is ongoing now, and the July 31 deadline set by the Court is nearing.

The petitioner has challenged the Paragraph 3A Clause (1) on the ground that there exists an ambiguity between this rule and what has been provided under Paragraph 8 of the Rules of 2003. Paragraph 3A Clause (1) provides that a person may file an appeal only upon production of a certified copy of the rejection order received from the NRC Authorities along with the grounds of appeal whereas Paragraph 8 of the Schedule to the 2003 Rules provides a period of 60 days from the date of order of rejection of claims/objection, as the time during which a person shall prefer an appeal. This leaves an ambiguity between Paragraph 8 of the Schedule to the 2003 rules and the procedure prescribed under the impugned provisions of the Amendment Order, 2019.

Further, there is no provision for condonation of delay; neither any safeguard is provided that the NRC authorities are obligated to issue certified copy of the order in a time bound manner.

Further it has been contended in the petition that the addition of Clause (6) to Paragraph 3A has resulted in the bypassing of the procedure already established which provided for the procedure for preferring an appeal for inclusion in the NRC. Clause (6) stipulates that a District Magistrate may refer a question as to if a person is a foreigner or not to the Foreigner's Tribunal. The result of conjoint reading of various provisions relevant provision because of the amendment means that the reference by the District Magistrate will be heard along with the appeal for inclusion in NRC. This has resulted in complete jumbling up of the two distinct judicial process.

Paragraph 3B of the Amendment Order has also altered the stipulated procedure for dealing with the cases of persons who have not preferred appeals within sixty days from the date of rejection of claims/objections. The same may be referred to the Tribunal as earlier, however, the Tribunal now has to deal with the reference in terms of the scheme provided under Paragraph 3A and not Paragraph 3.

Clause (10) of the Amendment order has also been challenged on the ground that it has the power to reject the application for appeal at the threshold, as the Tribunal is only required to issue notice for hearing the appeal if it finds merit in the appeal. Hence, there remains a possibility of denial or right to hearing.

The petitioners urged that 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.

Click here to download petition

Read Petition