Abdul Maleque v. Union of India, WP(C)/2623/2021

Read the judgment here

Date of decision: 04.01.2022

Court: High Court of Gauhati

Judges: Justice N Kotiswar Singh and Justice Malasari Nandi

Summary: The Gauhati High Court set aside an order of the Foreigner’s Tribunal, declaring the Petitioner a “foreigner” on the grounds that the documents he produced were post 1971, and that the Petitioner is already a deemed “foreigner” in light of another order declaring his nephew a “foreigner.” The Gauhati High Court noted that cases must be decided on an independent basis, after proper appreciation of evidence on record. 

Facts: The Petitioner had appeared before the Foreigner’s Tribunal, Morigaon whereby he was declared to be a “foreigner.” He had submitted a written statement mentioning that his father, Kajimuddin’s name appears in the voters lists of 1966, 1979, 1985, and 1989. The Petitioner’s father’s name appears in Sl. No. 599 of the 1966 voter list, as a voter of Nagaon district. However, the Tribunal did not consider the 1966 voter list and declared all the documents as insufficient to support the Petitioner’s case as they were all post 1971. A jamabandi, which was submitted as evidence, was also not considered as it was a recent document. Additionally, in light of an order declaring his nephew a “foreigner,” the Tribunal held that the Petitioner had already been declared a “foreigner” as well. These were the reasons for the Tribunal’s order against the Petitioner, which the latter challenged before the High Court

Holding: The Gauhati High Court set aside the order of the Tribunal and remanded the matter for fresh reconsideration. Regarding the 1966 voter list, with the name of the Petitioner’s father, the Court instructed the Tribunal to give the Petitioner an opportunity to prove the said document. This direction was made on the basis that while the 1966 voter list had not been presented before the Tribunal, a photostat copy of the document was on record before the Tribunal and the Tribunal was aware of the existence of such a document. Therefore, in the interest of justice, the court directed the Tribunal to allow the Petitioner to prove the contents of the said document. 

Regarding the effect of the order against the Petitioner’s nephew on this case, the Court held that the citizenship of the Petitioner should be decided independently, based on the appreciation of the evidence on record. The Court held that as the Petitioner was not a proceedee in the order decreed in FT Case No. 142/2016 against his nephew, that order is not binding on the Tribunal where the Petitioner is concerned. Any adverse inference drawn from earlier opinions in which the Petitioner was not a party, was also held to be prejudicial against the interest of the Petitioner. 

Accordingly, the order has been set aside and the matter has been remanded to the Tribunal for fresh consideration on or before 08.02.2022. Since the Petitioner was already on bail, the court ordered that he will continue to be on bail. 

Significance: This decision is significant as the Gauhati High Court emphasizes firstly, on the importance of appropriate appreciation of evidence presented before a judicial body, in this case, the Foreigner’s Tribunal and secondly, the need to decide citizenship cases on an independent basis, without being prejudiced by other orders where the Petitioner was not a proceedee.

With regards to the first point,  while the voter list of 1966 was not exhibited before the court, it was mentioned in the written statement and the Tribunal also made a reference to the document in paragraph-4(iv) of its order. Furthermore, a photostat copy of the document was on record with the Tribunal. Once on record with the judicial body, the Tribunal, in the interest of justice, should have considered the document in determining the proceedee’s citizenship, even though the document was not exhibited.

With regards to the second point, Section 6A(1)(e) of the Citizenship Act 1955 states that “a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opinion to the effect that he is a foreigner to the officer or authority concerned.” On application of this provision, the mere fact that a relative was declared a “foreigner”, especially a case in which the person was not even a proceedee, cannot automatically make him a “foreigner” as well. A person can only be deemed a “foreigner” if the Foreigner’s Tribunal submits its opinion to that effect. 

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 Anushya Ramakrishna.

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