Up until 2013, there were 36 Foreigner Tribunals (FTs) in Assam. Grade 1 Judicial Officers who were retired presided over these tribunals. In 2014, the Supreme Court (SC) relaxed this criteria. Any lawyer with 15 years of experience aged 45 or above could become an FT judge. Following this judgement, 64 lawyers were recruited as FT judges.

In 2019, when the NRC process was nearing its end, the Supreme Court relaxed this criteria once again. Now, judicial officers, civil servants and lawyers with just 7 years of practice aged 35 and over could become FT members. Given the large number of exclusions in the final list, 200 new tribunals were to be established in the state, and each of these would need judges too. Already, 21 of the existing FTs do not have judges.

With this latest change, Sudipto (name changed) also found himself eligible. Applications were to be made online. Nearly 2100 people applied, Sudipto was one of them. Sudipto is an even-tempered person. His arguments are firmly rooted in the Constitution and the knowledge he has gathered from his vast and varied readings. He had been keenly observing the NRC exercise from the beginning. He would often be troubled about the constitutional validity of this exercise but he is also pragmatic. He knew there was no reversing it. Whatever had to be done, had to be done henceforth.

As a lawyer he had already been approached by several people who had been declared Doubtful (D) Voters and those who hadn’t been able to prove their citizenship in the draft and final NRC. He had also studied the orders given by the FTs in such cases. In all, he had a fair idea about how the tribunals and the minds of its judges worked.

So when he received an interview-call for the position, he was well-prepared. Having followed the case of 19 FT members whose services were terminated in 2017 because they had not declared as many people foreigners, he knew what not to say. Two High Court judges interviewed the applicants. Questions mostly centered around the history and geography of Assam – the Assam Accord, the Evidence Act, the Foreigners Act, FT procedures etc.

There were also questions about the applicant’s family background. They were asked about their views towards foreigners. Sudipto also recalls them asking how many foreigners he thought there were in his district. They asked him if he thought there were more foreigners there as compared to the other districts.

If these questions made him uncomfortable he did not show it. He stuck to the facts and figures that the draft lists had revealed and didn’t offer his opinion. Of the 2100 people who had applied to become FT members, 221 were selected and 50 were put on a waiting list. Sudipto was one of the selected.  

The contract was to be for a year with a provision for extension based on need and performance. The salaries and perks were handsome. Not as good as a full-fledged judge perhaps, but nothing that one could complain about. The more attractive part of being an FT member was the power that it allowed you to wield – the fate of determining something a person's citizenship was entirely in your hands.

It is important to note that the FT is only a quasi-judicial body, created by the legislature to perform judicial functions. The task of the FT is to determine whether or not a person is Indian. In the event that they find someone is not Indian, it is not a matter of their concern anymore. The question then arises– whose responsibility is it?

In a sense, a case in the FT is like having a civil matter with criminal consequences. It is also life imprisonment of sorts – once a person is sent to a Detention Center, there is no clear procedure as to what happens next nor any guidelines for deportation.  Article 21 of the Indian Constitution states that no one – irrespective of whether they are Indian or not – can be kept in detention indefinitely. This is something that Sudipto is aware of, but he also knows it is beyond the scope of his job.