Procedure for disposal of NRC Appeal

-Dharmananda Deb, Advocate-

With roughly just a month left before the deadline for finalization of the updation of National Register of Citizens, 1951 in Assam hits, the central Government in exercising of the power conferred under Section 3 of the Foreigners Act,1946 has issued an amendment order of Foreigners (Tribunal)Order,1964 viz. Foreigners (Tribunal)Amendment Order,2019. Section 3(1) of the Foreigners Act, 1946 empowers the Central Government, by order, to make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigners. The order may be either for prohibiting or regulating or restricting the entry of foreigners into the country or their departure or presence/continued presence in the country

As per this Foreigners (Tribunal) Amendment Order, 2019, a person whose name is not part of the National Register of Citizens (NRC), currently being updated in Assam, can approach any such tribunal with a certified copy of the rejection order received from the NRC authorities along with the grounds for appeal.

Paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 lays down the provision of an appeal for persons –
“Any person, not satisfied with the outcome of the decisions of the claims and objections may prefer Appeal, before the Tribunal within a period of sixty days from the date of such order, and on the disposal of appeal by the Tribunals the names shall be included or deleted”.

After an appeal is filed, the tribunal shall issue a notice to the District Magistrate to produce NRC records within 30 days from the date of receipt of the notice and a copy of the said notice shall also be sent to the pleader appearing for the Government and to the Appellant. The District Magistrate shall provide the NRC records in original including the Application Form and documents submitted by the Appellant and orders passed by the NRC authorities to the pleader appearing for the Government against the claims or objections filed by the Appellant.

Upon production of the records, if the Tribunal finds merit in the Appeal, it shall issue notice to the Appellant and the District Magistrate for hearing specifying the date of hearing and such date shall be within thirty days from the date of production of the records. The District Magistrate may also refer to the Tribunal for its opinion the question as to whether the Appellant is a foreigner or not within the meaning of the Foreigners Act, 1946 (31of 1946), in case of such reference to the Tribunal, it shall be deemed as a reference to the Tribunal, the Tribunal shall examine the said reference along with the Appeal.

The final order of the Tribunal shall contain its opinion on the matter whether the Appellant is eligible for inclusion in the NRC or not. It shall also contain the opinion of the Tribunal on the reference of the District Magistrate in regard to the question as to whether the Appellant is a foreigner or not within the meaning of the Foreigners Act, 1946.The final order of the Tribunal shall be a concise statement of facts and conclusion based on which the Tribunal has arrived at such an opinion. The final order of the Tribunal containing its opinion shall be given within a period of one hundred and twenty days from the date of production of the records.

Persons against whom a reference has already been made by the competent authority to any Foreigners Tribunal shall not be eligible to file the appeal before the Tribunal. If any Foreigners Tribunal has already given opinion about a person earlier as a foreigner, such person shall not be eligible to file an appeal to any Tribunal.
Very recently in Abdul Kuddus Vs. Union of India case, the Supreme Court has observed that right to appeal before the Foreigners’ Tribunal against non-inclusion in National Register of Citizens is available only in those cases, where the Tribunal has not already adjudicated upon and decided the issue as to whether the person is an Indian National or a foreigner.

In Abdul Kuddus Vs. Union of India case, it also rejected by the Supreme Court that the plea to invoke Article 142 of the Constitution and create an appellate forum. The court said:-
“We would not give any such direction and entrench upon the field of legislation reserved for legislature. This is not a case of an unoccupied legislation nor would facts justify the Court to exercise powers as in the cases of vacuum and when there is a complete absence of active law to provide for effective enforcement of basic human rights.”