File Photo: A woman shows her documents at NRC Seva Kendra in Guwahati Credit: Sadiq Naqvi

As over 170 Foreigners Tribunal (FT) members wait for work 17 months after they were appointed, the Gauhati High Court has lashed out at the Assam government for not utilising their services to dispose of pending cases.

Court filings reviewed by EastMojo show that the state government flip-flopped on the issue since early 2020 when it sought the Centre’s permission to allow new FT members to start dealing with old cases.

“Despite repeated opportunities granted to the state and notwithstanding the approval of the Government of India, Home Department, allowing the State Government to utilise the services of the newly appointed FT Members for deciding pending reference cases, it is unfortunate that no concrete action has been taken by the State till date to assign proper duties to those Officials,” Justice Suman Shyam said in an order on January 22. “What is even more surprising is that no valid reason for such delay has been brought to the notice of this Court,” the order adds.

Why were the new FTs established?

In May 2019, a bench led by the then Chief Justice of India Ranjan Gogoi, hearing the National Register of Citizens (NRC) case, ordered 200 new Foreigners Tribunals to be established and made functional by September 1, 2019.

These tribunals—quasi-judicial bodies which have the mandate to give opinions on cases of doubtful citizenship referred to them—were meant to cater to the NRC appeals.

A total of 1.9 million applicants could not make the cut for the NRC final list published in 2019. They were to be given a rejection slip, which would contain the reasons for their exclusion, and would form the basis of their appeals to the new FTs.

In September 2019, Assam government completed the process of appointing 221 foreigners tribunal members, including 21 for existing vacancies in the 100 FTs which are already functional in the state.

An official of the Assam Home Department said 19 new members either did not join or resigned since their appointment in September 2019. A total of 23 others have been appointed to fill vacancies in the existing 100 FTs.

“179 new members continue to be attached to existing foreigners tribunals,” a Home Department official told EastMojo. “They are paid Rs 89,000 per month as remuneration,” the official said, adding that the salaries are paid from the state exchequer, but reimbursed by the Centre. “It takes years for the reimbursements. Right now, we are getting reimbursements of 2015 and 2016,” the official said.

The services of new FT members were extended for another year in October 2020.

The issue of assigning pending cases to the new FTs arose because NRC rejection slips have not been issued yet. The officials have cited multiple reasons, including COVID-19 pandemic and questions on the integrity of the NRC list which has come under attack from various quarters including the ruling BJP and the office of the state coordinator himself.

State government’s flip-flop

The state government has told the court that a concrete decision would be taken within 15 days, the January 22 order read citing the government’s counsel.

But court orders reviewed by EastMojo show that the state government first told the High Court in March 2020 that they and the Centre have taken an in-principle decision to post the new members to dispose of old cases.

In December 2019, the Gauhati High Court first questioned why the new FT members have not been posted in their respective stations.

In January 2020, the HC reiterated that it has taken note of the fact that although 221 newly-appointed members were inducted in September 2019 and they are being paid a regular salary, yet, neither any order of posting has been issued nor any work been assigned to these members till today.

The state government’s counsel, however, told the HC then that since the NRC has not yet been notified by the Registrar General of India, there is some confusion as to the nature of duty that can be assigned to the newly-appointed members. The state government’s lawyer also mentioned that the state government would need instructions from the Centre since the money comes from North Block.

In February 2020, the state government’s counsel told the Gauhati HC that the state government has sent a proposal to the Government of India seeking their approval to assign duties to the new FT Members. In March, the then Assistant Solicitor General, SC Keyal, told the court that “on 22.02.2020 a meeting was held between the officials of the State Government of Assam and the Union Home Ministry whereby, an ‘in-principle’ decision has been taken to assign place of posting to all the newly recruited Members of the FT.”

In May 2020, the state government’s counsel cited lockdown as the reason for not issuing orders posting the new members and that a written communication of approval has been received from the Centre in March itself “paving the way for assigning the newly recruited members of the Foreigners Tribunals the work of disposal of the reference cases pending in the various Foreigners Tribunals.”

As the lockdown eased, in August 2020, the state government took a U-turn and told the Gauhati High Court that it’s not possible to assign old cases to the new FT members.

In an affidavit to the court, the state government said that the newly appointed members will have to deal with appeals against the rejection slips issued by the NRC authorities. It said they have not been posted due to the non-issuance of the rejection slips.

“That it is further stated that the purpose for which they were recruited, have not taken place due to the non-issuance of the rejection slips by the NRC Authority. Therefore, the Government cannot utilize their services in any other manner, other than their mandated work,” the state government affidavit read.

When the affidavit came up for hearing in September, the Gauhati HC pointed out the contradictions after the then ASG Keyal said Centre had no objections to FT members being assigned new duties. Keyal cited several petitions pending in the Supreme Court seeking re-verification of the NRC list as the reason for the non-issuance of the NRC rejection slips.

“Mr Keyal, however, submits that the Ministry of Home Affairs would have no objection if the newly recruited FT Members are assigned a duty to dispose of reference cases pending before the various Tribunals in Assam,” the HC order said.

Asked if the state government was deliberately sitting on the issue, a senior official directly dealing with the matter in the court said, “the state government would take a decision soon. It has been pending because of COVID-19.”

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