Read the judgement here
Date of the decision: 20.07.2021
Court: Gauhati High Court
Judges: Justice N. Kotiswar Singh and Justice Soumitra Saikia
Summary: The petitioner was declared as a foreigner by an ex parte order of the Foreigners’ Tribunal. The Gauhati High Court remanded the matter to the Foreigners’ Tribunal for reconsideration on the ground that citizenship should be decided on merit, and not by default.
Facts: The petitioner had appeared before the Foreigners Tribunal 6th, Silchar, after notice was served, filing her written statement along with certain documents. However, she did not get proper legal advice and later failed to appear before the Tribunal on several occasions. As a result, the Tribunal passed an ex parte order against her on 19.9.2017, declaring her a foreigner. Accordingly, the present writ petition was filed, the petitioner pleading that she be permitted to approach the Tribunal again to prove her case as an Indian citizen.
Holding: The petitioner argued that there was no wilful negligence or disregard on her part about the proceeding as she had duly appeared and filed her written statement. The Gauhati High Court granted the relief, remanding the matter to the Foreigners’ Tribunal for reconsideration. The Court, in its order, stated that “citizenship being a very important right of a person should ordinarily be decided on merit rather than by way of default as has happened in the present case” (paragraph 5).
Significance: The case deals with an ex parte order depriving an individual of their citizenship. It is significant because it reaffirms the importance of citizenship as a right, and that it cannot be taken away without proper consideration of its merits. While the Gauhati HC has also stated in previous orders that citizenship cases should not be determined on an ex parte basis, these orders are decided on a case-to-case basis, and it is unclear whether they indicate a general prohibition on ex parte orders.
More than 60% of cases are decided ex-parte by Foreigners’ Tribunals. A large number of these orders are because the persons do not receive notices, or stop attending the proceedings midway through. Ex parte orders often affect vulnerable and marginalised persons such as wage labourers, who cannot appear before the Tribunals either due to lack of sound legal advice or because they stand to lose a day’s wage. While Foreigners’ Tribunals have the power to summon and enforce attendance of persons, there currently exists no mechanism to ensure that persons are able to attend hearings, which points to larger structural issues in the functioning of the Tribunals. Although laws like the Legal Services Authorities Act provide free legal aid for marginalised and disadvantaged persons, experiences show that such laws are ineffective in practice, making it difficult for the poor and marginalised to access legal aid.
Table of Authorities:
Rahima Khatun v. Union of India WP(C)/8284/2019.
Nupur Thapliyal,Gauhati HC Sets Aside Ex Parte Order Declaring Woman As Foreigner, LiveLaw, 29 July 2021.
Sabrang India, Citizenship Should Ordinarily be Decided on Merit Rather Than by Default: Gauhati HC, Newsclick, 30 July 2021.
Challenging Ex Parte Orders on the Ground of Non-Availability of Legal Aid, Parichay Blog, 9 November 2020.
The Search for Foreigners in Assam – An Analysis of Cases Before a Foreigners’ Tribunal and the High Court, Parichay Blog, 23 June 2021.
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India.This note was prepared by Radhika Dharnia.