Rahima Khatun v. Union of India, WP(C)/8284/2019

Read the judgment here

Date of the decision: 08.04.21

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh  and Justice Soumitra Saikia 

Summary: The Gauhati High Court set aside an ex-parte order passed by the Foreigners Tribunal, which declared the Petitioner to be an illegal migrant, on the ground that the order had been passed without hearing the Petitioner. The Court also remanded the matter back to the FT for reconsideration. 

Facts: The Petitioner, Rahima Khatun, was declared an illegal migrant by the Foreigners Tribunal (FT) in an order dated 09.06.16. It was the case of the Petitioner that on receipt of a notice from the FT, her son appeared on her behalf without her knowledge. However, he failed to appear before the FT for subsequent hearings. This resulted in the passing of an ex-parte order, which declared the Petitioner as an illegal migrant. Accordingly, this petition was filed challenging the impugned order.  

Holding: The High Court, on perusal of the records, noted  that the FT  passed an ex-parte order. The Court set aside the impugned order stating that, “citizenship is one of the most important rights of a person. By virtue of citizenship, one becomes a member of a sovereign country and becomes entitled to various rights and privileges granted by law in the country and, as such, if any question arises about citizenship of a person, in our opinion, the same should be adjudicated as far as possible on the basis of merit and on hearing the person concerned” (paragraph 6). In other words, since citizenship is one of the most important rights of a person, a question of citizenship should be determined only after hearing the person concerned. The Court also remanded the matter back to the FT for reconsideration. At the same time, the Court noted that since the Petitioner’s citizenship was under the cloud, she was required to appear before the Superintendent of Police (Border) within 15 days from the date of the order and furnish a bail bond of Rs. 5000 with a like amount of one surety. 

Significance: This judgment is significant as it is in line with recent High Court judgments (here, here, here, here, here and here) that have set aside ex-parte orders declaring people as foreigners. Such orders are common since in many cases, proceedees do not receive a notice, or discontinue attending the proceedings due to poverty and/or the complexity of the proceedings. This decision reiterates the stance that citizenship matters should be decided upon merit, after hearing the person concerned, instead of ex-parte orders.

Although there is no blanket order against ex-parte decrees, Paragraph 3C of the Foreigners (Tribunals) Order, 1964 states that, “where the Foreigners’ Tribunal has passed an ex parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners’ Tribunal, it may, on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly.” This was supported by the court in The State of Assam v. Moslem Mandal, in which the court observed that an ex-parte order can be set aside only on the basis of “sufficient cause”. In the instant case, the Court placed emphasis on the principle of natural justice rather than examine the reasons for the non-appearance of the Petitioner. While the court did not expressly invoke the “sufficient cause” standard or the ratio in The State of Assam v. Moslem Mandal, it perhaps can be inferred that the meaning of the expression “sufficient cause” should be interpreted keeping in view the principles of natural justice and in line with the realities of access to justice for poor and marginalized persons. 

Another significant ratio that the HC seems to have relied on is how the improper service of notice and the absence of reasonable procedure results in the violation of the basic principles of natural justice. In The State of Assam v. Moslem Mandal, the Court said, “unless the Tribunal ensures just and proper service of notice, the requirement of giving reasonable opportunity would be defeated. The same would also then be in violation of the basic principles of natural justice.” One of the  questions that arise in the instant case is that the service of notice to the son of the proceedee, would amount to just, proper and reasonable procedure for the purpose of service of a notice? While The State of Assam v. Moslem Mandal clarifies that service of notice on an adult member of the family is permissible when the proceedee is found to be unavailable at the time of service, chances are high that the proceedee may not have been informed or involved in the process. 

Furthermore, the proceedee did not get a reasonable opportunity of being heard before the Tribunal as her son appeared for the proceeding without her knowledge. A family member can only appear in Court on authority of the actual proceedee. In the absence of knowledge by the petitioner as to the proceedings, it cannot be said that her son had any authority to appear and his negligence to appear for the subsequent proceedings cannot be attributed to her. Therefore HC recalled the ex-parte opinion and gave the proceedee the opportunity to discharge the burden of proving that she is not a foreigner. 

Another significant element is bail. The conditions of bail in the present case is akin to the previous orders of Gauhati High Court directing the authorities to release ‘foreigner’ detenues who have completed two years of detention on a personal bond of Rs. 5000 with a like amount of one surety. What the courts time and again fail to consider is that these detainees come from the most marginalized segments of society and may not be able to afford this amount. 

Resources:

  1. Dharmananda Deb, Foreigners Tribunals In Assam : Practice & Procedure, Live law, 13 June 2019
  2. Assam: Since 1985, Ex-Parte Tribunal Orders Have Declared Almost 64,000 People as Foreigners, The Wire, 02 July 2019 
  3. Tora Agarwala, Gauhati HC sets aside Foreigners’ Tribunals order: Citizenship important right, The Indian Express, 14 September 2021
  4. Challenging Ex Parte Orders on the Ground of Improper Service of Notice, Parichay – The Blog, 11 February 2021
  5. Kailash Ram, Ex-Parte Decree And “Sufficient Cause” For Non-Appearance, Live Law, 13 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 Sahla N.