Nashima @ Nasima Begum v. Union of India, WP(C)/8838/2019

Read the order here.

Date of the Decision: 29.01.2021

Court: Gauhati High Court

Judges: Justice Manojit Bhuyan and Justice Parthivjyoti Saikia

Summary: The Foreigners Tribunal declared the Petitioner a ‘foreigner’ for not being able to prove her linkage to her father via the school certificate. The certificate  was not considered because the Tribunal was not able to secure the attendance of its issuing author, i.e. Headmaster. The Gauhati High Court quashed the order and remanded the matter to the Tribunal to afford the petitioner another chance to present her case.

Facts: To prove her citizenship, the Petitioner put forth her case before the Foreigners Tribunal. The primary issue arose at the point of proving linkage. The petitioner had produced three documents for the said purpose: a Gaonbura certificate, a certificate issued by the Secretary of the Panchayat and a school certificate. However, the Gaonbura and the Secretary of the Panchayat were not examined before the Tribunal, rendering the school certificate the only document showing her linkage with her father. The Tribunal, in several instances, issued summons and warrants for securing the presence of the Headmaster who had issued the certificate. However, the Headmaster did not appear before the Tribunal. Finally, the Tribunal delivered the opinion without examining him and declared the Petitioner to be a ‘foreigner’.

Holding: The Gauhati High Court held that the Petitioner did not get the opportunity to prove her school certificate and that the “citizenship of a person is a valuable right” (paragraph 7). The High Court noted that paragraph 4 of the Foreigners (Tribunals) Order, 1964 provides the Tribunal with the powers in respect of summoning and enforcing the attendance of any person and to examine him/her on oath, and that in this case, however, “the Tribunal acted half heartedly while trying to enforce the attendance of the Headmaster of Indira Gandhi L.P. School” (paragraph 8). It was only because of the failure of the Tribunal to enforce his attendance that the Petitioner could not prove the document. As a result, the impugned order was found to suffer from perversity and consequently set aside. Therefore, the High Court directed the Petitioner to appear before the Foreigners Tribunal in order to afford her another opportunity to contest the police reference on merits. It also directed the Tribunal to take steps to release the Petitioner on bail, after her production before the Tribunal and on an application made for bail along with documents.

Significance: This order is significant as it duly acknowledges the error of the Foreigners’ Tribunal in not following the principles of natural justice. The High Court noticed that the Tribunal did not properly appreciate the evidence led by the petitioner. In the case of Asor Uddin v. Union of India, the Gauhati High Court has observed that “citizenship, being an important right of a person, ordinarily, should be decided on the basis of merit by considering the material evidences that may be adduced by the person concerned and not by way of default”. Since the petitioner was declared a ‘foreigner’ without hearing a crucial witness, the decision could not be said to have been made on the merits of the case. A fair hearing requires that concerned parties should be given the right to present their cases and evidence. In another case, the Gauhati High Court had previously pronounced that fair investigation and fair trial are “…basic fundamental/human right of a person, which are concomitant to preservation of the fundamental right of a person under Article 21 of the Constitution…” In this case, however, the half-hearted efforts of the Tribunal at securing the attendance of the witness deprived the petitioner of a fair hearing. This is not just limited to Nashima Begum’s case. A report analyzing 787 Gauhati High Court judgements and orders showed that one in two people are declared ‘foreigners’ because the issuing authorities fail to appear before the Foreigners Tribunals to testify that the documents produced are genuine and true to their knowledge. The Foreigners’ Tribunal is empowered with wide powers to enforce attendance, including the issuance of a warrant of arrest against the proceedee if they fail to appear before it. Although the Tribunal in the case had issued a non-bailable warrant of arrest for securing the presence of the witness after non-compliance with the summons and bailable warrants, it failed to take any action at the insubordination of the police in the non-execution of the arrest warrant. This lackadaisical approach of the Tribunals results in a drastic loss of rights and liberty of the alleged ‘foreigners’ as they fail to adequately present their case.

The High Court also observed that the Gaonbura and the Secretary of the Panchayat were not examined in relation to the secondary evidence showing linkage. The presence of the issuing authority is significant for proving the veracity of secondary evidence. If the Tribunal was of the view that the evidence on record is not relevant, a finding to that effect ought to have been recorded. The High Court did not go over the reasons as to why these two documents were not admitted. However, exercising its limited supervisory jurisdiction under writ jurisdiction, the High Court indicated that the Petitioner was not afforded an opportunity to be heard. Additionally, the language of the order (paragraph 9) suggests that the Petitioner will be allowed to adduce further evidence. Therefore, this order granting the Petitioner another chance to prove her citizenship on merits is appreciated.

References:

  1. Nupur Thapliyal, ‘Foreigners Tribunal Acted Half Heartedly’: Gauhati HC Quashes Order Declaring Woman As Foreigner Passed Without Examining Relevant Witness, (LiveLaw, 7th February 2021).
  2. Shruthi Naik and Leah Varghese, What 787 Cases in the Gauhati HC Tell Us About How ‘Suspected Foreigner’ Cases Are Decided, (The Wire, 11th March 2020).

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Khushi Singh. 

Mustt. Fulbanu Nessa @ Fulbanu Begum v. Union of India, WP(C)/725/2021

Read the judgement here

Date of decision: 28.01.2022

Court: Gauhati High Court

Judges: Justices N. Kotiswar Singh and Malasri Nandi

Summary: The Foreigners’ Tribunal reviewed its earlier order which declared the Petitioner as not a foreigner without giving a notice to the Petitioner. The High Court set aside this order as being impermissible in law because of the want of notice. 

Facts: The Petitioner had been proceeded against by the Foreigners’ Tribunal, Diphu, (‘FT’) which passed an order dated 04.03.2015 ascertaining that the Petitioner was an Indian citizen by birth and not a foreigner. On 16.03.2020, following a letter received by the Superintendent of Police (Border), the FT reviewed its earlier order without giving notice to the Petitioner. Following this, the Petitioner was taken into custody. The Petitioner argued before the Gauhati High Court that this review was ex facie illegal and also violated the principle of res judicata.

Holding: The High Court held that the review was impermissible in law and set aside the impugned order by the FT. Not giving notice to the Petitioner amounted to the FT changing its opinion behind the Petitioner’s back. However, the court did not go into the question of whether such a review by the FT was legally permissible  in the first place or not. 

Significance: The High Court affirms that the necessity of proper notice in a proceedings before the FTs applies equally to review of a previous order by the FT, even if such review is sought by the State. But the court remains silent on whether or not a review of an FT order can be sought by the State before the FT itself, as opposed to appealing to the High Court. Several Supreme Court judgments have held that tribunals cannot review their own orders unless such a power is provided to them in a statute and any such review order is ultra vires. One can locate such statutory power in Order 3C of the Foreigners’ (Tribunal) Order, 1964. This wording of this provision is such that such a review can only be sought in case of an ex-parte order against the procedee within thirty days of the impugned order. While the provision has been used in reviewing non ex-parte orders as well, such review can be sought by the proceedee, and a review after thirty days of the order may only take place in case of grave injustice. It is then unclear whether the State could seek a review in the present case. The High Court sidesteps this question explicitly, making no attempt to quash the review order on this ground and leaving the law on this point unclear. 

Table of Authorities:

  1. Mustt. Fulbanu Nessa @ Fulbanu Begum v. Union of India, WP(C)/725/2021

Resources:

  1. Harbajan Singh v. Karam Singh, (1966) 1 SCR 817
  2. Kalabharati Advertising v. Hemant Vimalnath Narichania, (2010) 9 SCC 437
  3. Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mill Ltd. (2005) 13 SCC 777
  4. Abdul Salam v. Union of India and Ors WP(C) 1505/2020
  5. Kulsum Bibi v. Union of India and Ors WP(C) 5632/2016

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 Farhan Zia.