People, Non-People, Citizens: A Feminist Perspective

Nivedita Menon is Professor, Centre for Comparative Politics and Political Theory, Jawaharlal Nehru University, New Delhi. This essay is developed from two earlier versions – a) Paul de la Gueriviere Memorial lecture, Indian Social Institute, Delhi; Jan 31, 2020 b) “Citizenship in Terminal Crisis? Thinking beyond twentieth century verities” in Richard Falk, Manoranjan Mohanty, Victor Faessel eds. Exploring Emergent Global Thresholds (Orient Blackswan 2017). A shorter Hindi version of this lecture was delivered at Shaheen Bagh, New Delhi on January 26, 2020.


This essay considers four interrelated questions.

First, are citizenship and citizenship rights unambiguously empowering? 

Second, why is citizenship a feminist issue?

Third, should we not cast citizenship rights within the frame of place of work, rather than place of birth?

Fourth, what about the place of the non-human in a just and ecologically aligned society?

I

Are citizenship and citizenship rights unambiguously empowering?

On the contrary, the very idea of ‘citizen’ produces simultaneously, as its shadow, the ‘non-citizen’ in the form of the Refugee and the Migrant.

The shadow cast by the idea of citizenship has been long recognised. This darkness arises from the location of citizenship rights in the nation state. As Ranabir Samaddar points out, a nation-state is made up of citizens, but it is the nation-state which defines who its citizens can be. Not everyone who is willing to be a citizen, not all those willing to participate in nationhood, can do so. The rights of citizenship are powerful precisely because they are available only to the community delimited by the discursive practices of the nation-state.[1] The point is that however inclusivist they may be, citizenship rights within nation-states are necessarily exclusionary. The resources of the nation, it is assumed, should be used for the benefit of citizens, thus creating a zone of privilege for them.

Thus, as Samaddar points out, the nation-state always has two subjects, the Citizen and the non-Citizen – the latter in the forms of the migrant and the refugee.

The refugee, according to Hannah Arendt, is the paradigm of a new historical consciousness – ‘Refugees expelled from one country to the next represent the avant-garde of their people.’[2] Giorgio Agamben, in an intense reflection on this essay fifty years later, notes that the appearance of refugees as a mass phenomenon comes into being with the emergence of the modern nation-state system that began to be put into place after World War I. Only a world of sovereign states that had categories of people called ‘citizens’ and that were intent on regulating population flows across/s ‘borders’ could produce the legal category of ‘refugees’. The collapse of multi-national, multi-ethnic empires (the Russian, Austro-Hungarian and Ottoman empires) and the creation of new, ethnically defined states forced minorities to flee, but with few places to go to because of the new, increasingly restrictive immigration laws. It is in response to this development that the High Commission of Refugees was formed in 1921, to deal with the enormous problem without impinging on the sovereignty of nation-states. After World War II this became a permanent international institution in the form of the UNHCR.

The UNHCR was clearly limited in the way in which ‘refugee’ was defined by the 1951 Convention relating to the Status of Refugees  – only displaced people on the other side of the territorial border were to be considered refugees, not internally displaced people, and only those who could prove ‘persecution’ by national governments – not those fleeing their countries because of economic hardship, ecological disasters, famines. The refugee law was also very clearly worded in order not to recognize Palestinians (Israel had been formed in 1948) as refugees.

‘In the best of cases’, writes Agamben, ‘the status of the refugee is always considered a temporary condition that should lead either to naturalisation or repatriation. A permanent status of man in himself is inconceivable for the law of the nation-state’.[3]

The migrant represents the phenomenon of movement of populations that has been widespread and common over the globe for several hundreds of years. This movement has been both voluntary (seafaring traders, pastoral nomads, invading armies that end up settling the lands they conquer) and forced (slave trade, indentured labour to run plantations). Thus what is called ‘migration’ is actually a continuation of natural human flows through the centuries, suddenly rendered illegal by new national borders. What now require to be called new rights, Samaddar says, such as the right to move across national borders for trade, work, or for grazing of animals for example, are not new privileges, but simply the re-legitimation of old practices.[4]

However, once the nation-state system was put firmly in place, such movements themselves came under scrutiny from the new ‘homelands.’ From this point onwards, (approximately the early 20th century), migration began to be closely linked to the issue of the security of nation-states. Migration is no longer simply an issue of demography or labour economics, it is now perceived as an issue that concerns a nation’s very survival.

But the other side of this is that not all immigrants want to become citizens in the country where they work. With reference to Bangladeshi workers in India, for example, Samaddar says, ‘in their own minds they are only temporary shelter seekers since they are still Bangladeshis to their own selves’.[5] Migration, thus, is accompanied often by a sense of desolation, loss, and nostalgia.

Across India, Adivasi migrant labour, for example, travels, driven by violent appropriation of their jal, jangal and jameen. Nirmala Putul, Adivasi poet, writes to “Maya”, an Adivasi woman she invokes, who has migrated to Delhi:

दिल्ली

नहीं है हम जैसे लोगों के लिए

क्या तुम्हें ऐसा नहीं लगता माया

कि वह ऐसा शमशान है जहाँ

जिंदा दफ़न होने के लिए भी लोग लाईन

में खड़े है ?

झारखण्ड की धरती संताल

परगना की माटी

दुमका के पहाड़

और काठीकुंड के उजड़ते

जंगल पुकार रहे हैं तुम्हें,

तुम जहाँ भी हो लौट आओ माया !

लौट आओ !!

All of this should lead us to question the nation as the space of liberation and emancipation, the natural home of the citizen – challenging this assumption requires us to recognise that nation states are formed by the unceasing, relentless drive to erase heterogeneity.

Take Europe, where the birth of nation states took place. Étienne Balibar points out that the construction of European nations involved the constitution of a ‘fictive ethnicity’ through the nationalisation of cultures, languages and genealogies with different histories, leading to ‘permanent rivalry’ from the inside.[6] Similarly, Crispin Bates points out that the English believe their own history to be continuous, but the so-called “English” culture is a mélange of ‘Celtic, Pict, Angle, Saxon, Viking, Norman, Asian, Caribbean, Polish, Italian, Huguenot, French, East European and of course, American cultures’.[7] By selecting from this mélange however, a set of ideas is upheld that somehow enshrines one ‘English’ identity.

The Indian project of ‘nation-building’ has been similarly beleaguered, whether we consider flash points like the North-East and Kashmir, or day-to-day politics among the state units of India’s federal polity, which in instances like river-sharing and linguistic reorganisation, take on the language of exclusive nationalism vis-à-vis one another. We have no option but to recognise such instances as illustrating the historical impossibility of attaining one kind of final nationhood. The ‘homelandist imagination’ is ever-limiting, and its ties to notions of shared historical culture can only be disempowering for those defined as the Other.[8] For example, within the North Eastern struggles for self determination vis-à-vis the Indian state are present also, internecine violence and rival claims to territory between different tribal and religious groups – between Bodos and Muslims, between Manipuris and Nagas.

Michael Mann has pointed out that murderous ethnic cleansing is quintessentially modern, it is ‘the dark side of democracy’. Democracy means rule by the people, but in modern times, ‘people’ has come to mean not just the masses but also nation, or particular ethnic groups, a people that share ‘a common heritage and culture.’ What happens, Mann asks, when ‘people’ is defined in ethnic terms, outweighing the diversity that is central to democracy? ‘If such a people is to rule (in its own nation state), what is to happen to those of a different ethnicity?’ Answers to this question, he adds, ‘have often been unpleasant’.[9]  

But if we remember that migration as human flows predate nation states, then we recognise yet another aspect of migration – migration as empowering. This aspect of migration leads us to our second question.

II

Why is citizenship a feminist issue?

Because citizenship is primarily based on proof of birth in a heterosexual patriarchal family, an institution that structurally undergirds caste, class, and gender injustice.

The structure and ideology of the patriarchal family is best illustrated by the reactions to the growing feminization of migration flows, both internal and external, and increasing flows of ‘single’ women migrating abroad as independent labourers in search of better lives for themselves and ‘their’ families.

One response has been to frame such movement in terms of ‘trafficking’. But an intensely destabilising perspective on citizenship and migration is provided by feminist critiques of anti-trafficking initiatives. The notion of ‘trafficking in persons’ has become closely linked to the abolitionist position on sex work, and has acquired great clout and visibility internationally, with feminists from the first world leading anti-trafficking campaigns. In their definition, trafficking is linked to migration, with trafficking being understood as ‘forced migration.’

Many other feminists on the other hand, are critical of anti-trafficking initiatives, particularly of the US Anti-Trafficking Act 2000.[10] They show how these initiatives collapse the distinction between (voluntary) sex-work and (coerced) trafficking, treating all cross-border movements of women as coerced; thus excluding these women from legal recognition, and casting their families as criminals. There has been pressure on the U.S. government from international groups working on public health and human rights to rethink current U.S. law that makes funds for HIV/AIDS-prevention programmes conditional on opposing prostitution. Such a requirement, it is argued by feminist critics of anti-trafficking campaigns, vitiates health programmes among sex-workers and fails to protect the most vulnerable sections. There is also militant opposition from sex-workers themselves to anti-trafficking policies being promoted by Western and South Asian countries and some feminists and human rights groups.[11]

Feminist legal scholar and activist Flavia Agnes has suggested a conceptual move away from the notion of a vulnerable subject to that of the risk-taking subject. She argues that migrants, including those in sex work, exercise agency and demonstrate decision-making abilities, which seek to maximise their own survival as well as the survival of their families. For example, many women negotiate the terms of their own movement and utilise technological networks to plan their migration and keep in contact with others in their country of origin. Women’s perceptions of themselves and of their ‘exploiters’ provide a further challenge to the traditional and stereotypical images of victim and perpetrator. For example while the dominant image of women in the sex industry is that of subjugated, dominated, objectified and abused persons who are preyed upon by conniving men, studies of women in the sex tourism industry in various countries reveal that women view it as an arena of negotiations to improve their own economic situation.

In addition, Agnes points out, as do many other feminists, that the trafficking agenda has come to be increasingly influenced by a conservative sexual morality, which casts ‘good’ women as modest, chaste, and innocent. Challenges to this understanding are seen as posing a dual threat – to women themselves and to the security of society. This produces a ‘protectionist agenda’, within which no distinction is drawn between willed and coerced movement. All movement of women is seen as coerced, thus reinforcing assumptions of third world women as victims, infantile and incapable of decision-making.[12]

From this feminist perspective, we can see migration not just as loss, but also as empowering, as producing new subjectivities.

But there is yet another layer here, when we consider the phenomenon of migration from the point of view of the transformations within these relocated communities. For instance, Naila Kabeer’s book on Bangladeshi women workers addressed the apparent paradox that while women garment workers in Dhaka entered garment factories and worked unveiled, Bangladeshi women in the garment industry in London were almost entirely confined to home-working. One of Kabeer’s main explanations for this is that women in Dhaka come from diverse geographical backgrounds into a relatively anonymous urban setting while the women in London came mostly from one province, Sylhet, where society is extremely conservative, even by Bangladeshi standards. In London, they tend to settle in one part of East London because of community networks drawing new migrants into that area where Bangladeshis have become concentrated. This concentration and regrouping of the community is of course, set within a context of growing racist hostility which leads to the familiar phenomenon of minority communities drawing “their” women “inside”. Men then, work in the factories and women at home – with the additional labelling of women’s labour as unskilled, and men’s as skilled. Kabeer argues that the processes of globalisation by which garment factory sweatshops get located in countries like Bangladesh empower women who, despite exploitative conditions of work, find their options increased. She suggests that the agency of women is enhanced by the effects of globalisation in the South.[13]

Many scholars and activists have suggested therefore that we need a political practice that questions the very legitimacy of sealed national borders that we have come to take for granted over the last century. National border regimes must be opened up as well as the labour markets organised through them. There must be an end to discrimination based on one’s nationality. These are the demands of the growing group of ‘No Borders’ activists across the world. A radical political practice is called for, ‘struggles for a decolonized commons’, that challenges the barbed-wire borders of nation-states.[14]

We need to question citizenship by birth also from the perspective of the biological, familial foundation of citizenship that we outlined at the beginning of this section.

This foundation remains un-thought and unquestioned in progressivist narratives of citizenship. Compulsory heterosexuality undergirds most forms of identity – caste, race and community identity are produced through birth. But what we fail to note and criticise adequately is that birth in a particular kind of family determines too the quintessentially modern identity of citizenship. The purity of these identities, of these social formations and of existing regimes of property relations is protected by the strict policing and controlling of sexuality, and by the institutions of compulsory heterosexuality. Thus, the family as it exists, the only form in which it is allowed to exist – the heterosexual patriarchal family based on marriage and the sexual division of labour – is key to maintaining nation, state and community. The imperative need is to restructure institutional and public spaces in a manner that will enable the breaking down of this division of labour as well as the normativity of this particular form of the family.

What then would be the basis of citizenship if the naturalised notion of ‘birth’ is deconstructed in this way? We would be forced to think of alternative sources of citizenship rights – through claims to ‘family’ ties by heterogeneous and fluid forms of intimacy that refuse to be legible to the state, and equally importantly, as located in place of labour, not birth.

And this brings us to our third question.

III

Should we not cast citizenship rights within the frame of place of work, not place of birth?

Mahmood Mamdani argues in the context of Africa, that the notion of citizens’ rights as attached to place of birth has increasingly anti-democratic consequences because of the history of large-scale migration on the continent, which means that at any given time, hundreds of thousands of people are not living in the land of their birth. They thus have no citizens’ rights for the large part of their lifetime. Mamdani rejects the post-colonial assumption that cultural and political boundaries should coincide, and that the natural boundaries of a state are those of a common cultural community. This assumption makes indigeneity the litmus test for rights under the postcolonial state.

Mamdani argues, contrary to nationalist wisdom, that cultural communities rooted in a common past do not necessarily have a common future. Political communities rather, are to be defined not by a common past but by the resolve to forge a common future ‘under a single political roof’. He believes therefore, that citizens’ rights should be attached to place of labour, not place of birth.[15]

Consider the supporters of Hindutva politics in India, who live in the USA and UK, and unquestioningly take advantage of citizenship rights that protect immigrants and minorities. They publicly celebrate the Prime Minister of their erstwhile country, publicly observe their festivals; build their temples, even direct the foreign policy of political parties in the countries in which they live and work – for instance, UK’s Labour party back-tracked on its Kashmir resolution[16] criticising the lockdown of the state, under pressure from multiple British-Indian bodies.[17] They demand full citizenship rights for themselves in their country of residence, while financially supporting the policies of Hindutva that disenfranchise minorities and immigrants in the country they have left.

The poet Rahat Indori’s famous words – sabhi ka khoon shaamil hai is mitti mein (‘the blood of each one of us is mingled in this soil’) –indicate, in my reading, not just the shared blood of birth and martyrdom. We can derive a different sense of ownership of “India” from Indori’s stirring words. I read khoon as used in the common term khoon pasina – the blood and sweat of toil. If our blood and sweat is fused with this soil, then that far exceeds the mere accident of birth.

In other words we take seriously the implications of the fact that the Preamble of the Indian constitution is in the name of hum bharat ke log, not hum bharat ke nagrik.

How will everyone be looked after? Resources are not lacking. Distribution is the point. In Kerala, for instance, the children of immigrants from Bihar and UP get free education and everything else that residents of Kerala get, not just those born in Kerala, or those who bear a “Malayali” identity.

We recently learnt that the total income of 63 crorepatis was greater than India’s annual budget for 2018- 2019.[18] Where did that income come from? Subsidies for the poor is vote-bank politics, subsidies for the rich is development?

What was the cost of the now rejected NRC in Assam? 1220 crores![19] A complete waste of public money especially as it will be repeated, if the Home Minister has his way. In December 2019, the Union cabinet sanctioned Rs 4000 crores[20] for the National Population Register, an exercise that overlaps with the Census and is therefore redundant, but which has the only feature the Census does not have – the category of the doubtful citizen.

Clearly there is no shortage of resources in India to ensure state funding for basic human rights for all residents – healthcare, education, food.

IV

Finally, can we speak about citizenship in a radically transformative way without considering the non-human?

What happens if we take seriously the idea that the separation of the world into the natural and the social-political is the founding mythology of modern thought, as Bruno Latour insists. The formative idea of Latour is that the natural and social orders are ‘co-produced’, produced together. Latour uses the word ‘collective’ to describe the association of humans and nonhumans, and the word ‘society’ to designate ‘one part only of our collectives, the divide invented by the social sciences’.[21]

If citizenship must be re-considered in terms of recognising the non-human world, then pre/non-modern cultural formulations and knowledge systems, both western and non-western, have much more to give us than Enlightenment thought. For instance, it is under conditions of modernity that the age-old domestication of animals has evolved into what Barbara Noske calls the ‘animal-industrial system’, which forces animals to specialise in one skill. The animal’s life-time ‘has truly been converted into working time, into round-the-clock production’.[22]

With regard to nature, Thomas Lemke has pointed out that even the discourse of ‘sustainable development’ is central to ‘the government of new domains of regulation and intervention’:

One important aspect of the ‘new world order’ is the reconceptualisation of external nature in terms of an ‘ecosystem’. Nature, which once meant an independent space clearly demarcated from the social with an independent power to act, and regulated by autonomous laws, is increasingly becoming the ‘environment’ of the capitalist system…In an age of ‘sustainable development’, previously untapped areas are being opened in the interests of capitalization and chances for commercial exploitation. Nature and life itself are being drawn into the economic discourse of efficient resource management. [23]

Or as Arturo Escobar puts it: ‘the key to the survival of the rainforest is seen as lying in the genes of the species, the usefulness of which could be released for profit through genetic engineering and biotechnology in the production of commercially valuable products, such as pharmaceuticals. Capital thus develops a conservationist tendency, significantly different from its usual reckless, destructive form’.[24]

The key idea here is ‘regulation’ – the environment is to be regulated in the interests of long-term extraction. Within this perspective, even renewable sources of energy are envisaged as necessary only to ensure endless consumption. There is no sense here that assumptions about consumption, urbanization, and endless growth will have to be drastically rethought.

Bolivia’s Law of Rights of Mother Earth (2010), which establishes seven rights of Mother Earth, including the right to life, biodiversity, pure water, clean air, and freedom from genetic modification and contamination, is potentially revolutionary.[25] However, who is to protect these rights? If local communities were the guarantors of these rights, this would mean a significant break from the nation-state paradigm. However, this law too, appears to be designed to enable the state to facilitate resource extraction and industrial development while protecting ‘Mother Earth’. Vice-President Alvaro Garcia Linera stated at the law’s promulgation ceremony: ‘If we have to extract some mineral, we have to extract it, but finding equilibrium between the satisfaction of needs and protecting Mother Earth.’[26]

So is that all it is – “sustainable” development, once again?

If the agency of the non-human is to be acknowledged, this has implications for the very idea of citizenship. This is because any attempt to deal with the looming ecological crisis in centralised ways at the level of states is bound to fail. The only way out is through secession into decentralised, local ways of life, a replenishing of the commons, and rejecting the idea of growth altogether, as the Degrowth Movement boldly states:

Sustainable degrowth is a downscaling of production and consumption that increases human well-being and enhances ecological conditions and equity on the planet. It calls for a future where societies live within their ecological means, with open, localized economies and resources more equally distributed through new forms of democratic institutions… The primacy of efficiency will be substituted by a focus on sufficiency, and innovation will no longer focus on technology for technology’s sake but will concentrate on new social and technical arrangements that will enable us to live convivially and frugally. Degrowth does not only challenge the centrality of GDP as an overarching policy objective but proposes a framework for transformation to a lower and sustainable level of production and consumption, a shrinking of the economic system to leave more space for human cooperation and ecosystems.[27]

Such a retreat is not a benign, apolitical act, but a deeply political blow to the continuing violence of corporate capital and the state systems that sustain it. Citizenship cannot but be radically rethought – perhaps even rejected – within such a framework, which insists on ‘societies’ rather than ‘states’, rejects the very idea of the national GDP as an indicator of the good life, and redefines good living in terms of conviviality and frugality. The Citizen grounded in the Nation-State imaginary is rendered utterly irrelevant.

We arrive therefore, at citizenship oriented towards the future, not based on a past.

Let me conclude by saying that Shaheen Bagh and all the other vibrant, massive anti-CAA protests all over India, can lead us to a more inclusive idea of citizenship. Not the narrow one that says who should be excluded, but one that embraces heterogeneous religions, political and other cultures and sexualities, and which challenges patriarchy and caste injustice. An idea of citizenship that claims solidarities based not on fictive histories of the past, but on hopeful narratives of the future.


[1] Ranabir Samaddar , The Marginal Nation: Transborder Migration from Bangladesh to West Bengal (Sage Publications 1999).

[2] Hannah Arendt (1943) quoted in Giorgio Agamben, ‘We refugees’ (1995) Symposium No 49 (2).

[3] Giorgio Agamben, ‘We refugees’ (1995) Symposium No 49 (2), p. 117.

[4] Ranabir Samaddar , The Marginal Nation: Transborder Migration from Bangladesh to West Bengal (Sage Publications 1999), p. 40.

[5] Ranabir Samaddar , The Marginal Nation: Transborder Migration from Bangladesh to West Bengal (Sage Publications 1999), p. 107.

[6] Étienne Balibar, We the People of Europe? (Princeton University Press 2004), p. 8.

[7] Crispin Bates, ‘Introduction: Community and Identity among South Asians in Diaspora’ in Crispin Batesed. Community, Empire and Migration South Asians in Diaspora, (Palgrave 2001), p. 22.

[8] Sanjib Baruah, ‘Nations within nation-states’ (Hindustan Times, October 13 2005).

[9] Michael Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing (Cambridge University Press 2005), p. 3.

[10] https://www.govinfo.gov/content/pkg/PLAW-106publ386/pdf/PLAW-106publ386.pdf

[11] Ratna Kapur, Erotic Justice: Law and the New Politics of Postcolonialism (Permanent Black 2005).

[12] Flavia Agnes, ‘The Bar Dancer and the Trafficked Migrant Globalisation and Subaltern Existence’ (30 December 2007) Refugee Watch, Issue No. 30.

[13] Naila Kabeer, The Power to Choose: Bangladeshi women and labour market decisions in London and Dhaka (Sage Publications 2001).

[14] Nandita Sharma, Home Rule: National sovereignty and the separation of natives and migrants (Duke University Press 2020).

[15] Mahmood Mamdani, (1992) ‘Africa Democratic Theory and Democratic Struggles’ (October 10 1992) Economic and Political Weekly,Vol – XXVII No. 41.

[16] https://www.firstpost.com/world/britains-labour-partys-u-turn-over-kashmir-issue-reveals-growing-clout-of-indian-diaspora-that-supports-narendra-modis-policies-7647241.html

[17] https://www.livemint.com/news/world/over-100-british-indian-bodies-challenge-corbyn-s-kashmir-stance-11571055787734.html

[18] https://www.thehindu.com/business/Economy/combined-total-wealth-of-63-indian-billionaires-higher-than-the-total-2018-19-union-budget-oxfam/article30604631.ece

[19] https://www.firstpost.com/india/rs-1220-cr-and-10-years-later-nrc-leaves-group-favouring-exercise-disastified-final-list-raises-questions-false-claims-on-migrants-7271991.html

[20] https://pib.gov.in/PressReleseDetail.aspx?PRID=1597350

[21] Bruno Latour, We Have Never Been Modern (Catherine Porter tr., Harvard University Press 1993), p. 4.

[22] Donna J. Haraway, ‘Otherwordly Conversations, Terran Topics, Local Terms’ in Stacy Alaimo and Susan Hekman (eds.) Material Feminisms (Indiana University Press 2008), p. 177.

[23] Thomas Lemke, ‘Foucault, Governmentality, and Critique’ (2002) Rethinking Marxism 14(3), p. 55.

[24] Arturo Escobar quoted by Lemke, ‘Foucault, Governmentality, and Critique’ (2002) Rethinking Marxism 14(3), p. 56.

[25] http://archive.wphna.org/wp-content/uploads/2014/07/2010-12-07-Bolivian-Law-of-rights-of-Mother-Earth.pdf

[26] https://nacla.org/blog/2012/11/16/earth-first-bolivia%25E2%2580%2599s-mother-earth-law-meets-neo-extractivist-economy

[27] https://degrowth.org/definition-2/

Deprivation of Citizenship

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Khush Aalam Singh, is part of the clinic’s outcomes.

Deprivation of citizenship can be defined as an involuntary loss of citizenship status that was previously held by a person. It is a predominantly legal concept which carries serious consequences. This is because citizenship of a state gives a person access to several rights and protections guaranteed by the state. Acquiring citizenship carries a sense of recognition in social, political, and legal terms. Citizenship also provides access to the conditions and services which are vital for a person’s dignified existence. If a person is deprived of their citizenship, they no longer have a claim to its benefits. This can also get carried forward to the person’s descendants, impacting their access to rights. Additionally, citizenship deprivation may result in the removal of the person from the territory of the state, thereby violating their right to reside in their country.

The idea of deprivation of citizenship has been echoed in various similar expressions. These include terms such as: revocation of citizenship, involuntary loss of citizenship, denationalisation, citizenship erasure etc. While revocation, denationalisation, and involuntary loss do not carry substantial difference from deprivation, citizenship erasure is a concept that requires further classification. Citizenship erasure is described as the “arbitrary retroactive non-recognition” of citizenship of a person. This has been considered distinct from deprivation as it denies the very existence of citizenship status claimed by a person outright, whereas deprivation is carried out in accordance with law. In other words, deprivation takes place in accordance with deprivation provisions contained in a state’s citizenship law, whereas erasure does not involve the formal procedure. Nonetheless, for the purposes of this note, citizenship erasure falls within the ambit of deprivation, as the consequence is the loss of nationality which was not voluntary in nature. In many situations, deprivation of nationality can result in a person becoming stateless. This may leave them vulnerable to human rights violations without any effective recourse.

Deprivation of Citizenship in Domestic and International Law

Under Indian law, the principal framework for deprivation of nationality is the Citizenship Act, 1955 as well as the rules made thereunder. Section 10(2) of the Act empowers the Central Government to deprive a person of their citizenship. This power to deprive citizenship, however, applies only in the case of persons who have acquired citizenship by naturalisation, registration or by ordinary residence in Indian territory five years prior to the commencement of the Constitution. This means that persons who are born in Indian territory or to parents who are Indian citizens cannot be deprived of their citizenship under this provision (jus soli and jus sanguinis citizenship).

Deprivation of citizenship under Section 10 of the Act can only be ordered on specific grounds. The implication of these grounds is that the state cannot arbitrarily deprive persons of their citizenship. The grounds set out in Section 10 must be adhered to. These include (among others) – obtaining citizenship by fraud, disloyalty or disaffection by act or speech to the Indian Constitution, unlawful trade or communication with an enemy, etc. Section 10(3) provides that the Central Government shall not deprive a person of their citizenship unless it is satisfied that the continuation of citizenship is not conducive to the public good. The Telangana High Court in Dr. Ramesh Chenammameni v. Union of India has held that the requirement under Section 10(3) is mandatory, and that a person cannot be deprived solely on the ground of satisfying the conditions under Section 10(3). The Central Government has to satisfy both counts – that the person in question has violated the provisions of Section 10(2) and that the continuation of citizenship is not conducive to the public good.

The principal framework under international law dealing with deprivation of citizenship is the 1961 Convention on the Reduction of Statelessness. Article 8 of the Convention prohibits depriving a person of their nationality where the result of such action would be the person becoming stateless. Clauses 2 and 3 of the Article contain exceptions to this prohibition, which include obtaining nationality of the Contracting State by fraud or misrepresentation, conduct that is seriously prejudicial to the vital interests of the state etc. Article 9 of the Convention prohibits deprivation of nationality of a person or a group of persons on racial, ethnic, religious or political grounds. While India is not a signatory to this Convention, its courts have been mindful of statelessness as a consequence of deprivation of citizenship.

Additionally, India is obliged under its treaty obligations to prevent statelessness as a consequence of deprivation of nationality. It is also obliged to ensure that no person is arbitrarily deprived of their nationality. Article 15(2) of the Universal Declaration of Human Rights (UDHR) prohibits arbitrary deprivation of nationality. This prohibition has now been recognised as a well-established norm of customary international law. Furthermore, India had a vital role to play in advocating for the insertion of Article 15(2) during the drafting of the UDHR.

The Right against Arbitrary Deprivation of Nationality

The right against arbitrary deprivation of nationality finds mention in the UDHR and several international conventions, such as the International Covenant on Civil and Political Rights (ICCPR) etc. This is supplemented by its inclusion in regional frameworks, such as the American Convention of Human Rights (Article 20). This right is of crucial importance when looking at instances of deprivation of citizenship. This is because this right covers two situations of deprivation. Deprivation can be a result of the procedure established in municipal law or by discriminatory refusal to recognise a person or group of persons as citizens. The understanding of arbitrariness under international law is not limited to something being ‘against the law’. It has been understood in a broader sense, encompassing elements of unfairness, inappropriateness and injustice. Arbitrariness also seeks to ensure that ‘lawful’ interference with rights of a person is reasonable. This requires robust substantive and procedural safeguards, as well as conformity to both domestic and international law.

There are several aspects of citizenship deprivation in India that remain unaddressed, raising strong concerns about arbitrariness. Several bonafide Indian citizens face the threat of arbitrary deprivation of their nationality as a result of the process of expelling ‘foreigners’. In particular, over 1.9 million persons in Assam excluded from the National Register of Citizens (NRC) are at the brink of statelessness. Their fate will be decided by the Foreigners Tribunals which raise many significant due process concerns. The current policy on deprivation does not account for deprivation of citizenship through parallel procedures sanctioned by law. Furthermore, there are several inadequacies in terms of substantive and procedural rights for persons being deprived of their citizenship. As a result of wrongful deprivation, a person will languish in detention for the purpose of deportation. These consequences are particularly grave and debilitating, therefore requiring extreme caution and respect for human dignity. Thus, citizenship deprivation calls for greater attention as an urgent issue that needs to be addressed.

Suggested Readings:


Naturalisation

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where the students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Pritha Paul, is part of the clinic’s outcomes.

Naturalisation refers to the incorporation of migrants usually displaced due to economic, political, or environmental reasons, among others, or immigrants looking for better living conditions or educational and employment prospects in the state they move to. It is a process promising not only recognition of their socio-economic contributions but also improved socio-economic opportunities. Historically, the word ‘naturalisation’ is derived from Middle French ‘naturaliser’ which means “to admit (an alien) to rights of a citizen”.

Jus soli was the guiding principle of the eighteenth century feudal European citizenship until the French Revolution reintroduced the Roman jus sanguinis principle. Both proved inadequate when the two World Wars left numerous migrants, refugees, and stateless persons in foreign lands without protection under the laws of that state. Naturalisation provided an opportunity to people, who were neither born within a State nor had ancestral ties to it, to become citizens solely by virtue of their personal connection formed with the State. Such connections could be established through residence, intention to settle, or a lack of ties to other countries. However, most states hold elaborate and intrusive tests to scrutinise this connection. For instance, Denmark has prescribed housing, residence, employment, language, and lifestyle requirements.

In India, naturalisation is one of the five ways in which one may become an Indian citizen, governed by section 6 of the Citizenship Act of 1955. To be eligible for naturalisation, one must be of good character, reside in India for a period of eleven years, and speak any of the official Indian languages. Upon being granted Indian citizenship, one must renounce any prevailing citizenship, take an oath of allegiance, and reside in or serve India. Initially, one had to renounce one’s existing citizenship upon applying for naturalisation. This had the potential to render one temporarily or permanently stateless depending on the approval or rejection of the application, respectively. Hence, the change is appreciable. However, in a lower-middle income country like India, an application fee of Rs. 1500 and requirement of language proficiency create invisible barriers for poor and illiterate migrants. Contrarily, the privileged who have a symbiotic relationship with the state are overindulged. The state may waive any or all naturalisation requirements for “distinguished” persons. Proficiency in a local language can propel social and economic integration. However, in their home state, persecuted persons are often systematically denied education and employment. In the host state, they are put in isolated squalid detention camps without basic facilities as has been seen in the case of Rohingyas. Even when free to live in the community, they are compelled to settle in the peripheries, like the Afghans in Delhi. For such people, it is nearly impossible to fulfil the naturalisation requirements.

Naturalisation tests ensure not only a low number of naturalised persons but also fewer applicants out of fear of failure, which perhaps is the primary aim of the tests. Between 2011 and 2020, merely 1380 foreigners were granted Indian citizenship through naturalisation. Moreover, the Act, through the 2003 amendment, made “illegal migrants” completely ineligible for Indian citizenship through registration or naturalisation. The unwillingness of the State to incorporate migrants leaves them in a limbo. Most of them cannot be deported due to the principle of non-refoulement. They remain in India for the rest of their lives, but as non-citizens.

Section 6, however, is not applicable to the state of Assam, which is governed by section 6A of the Act. Unlike Section 6, which applies to all persons regardless of their origin, Sections 6A and 6B create special pathways to citizenship for persons migrating from Bangladesh. It ‘regularizes’ i.e. grants immediate citizenship to those who entered Assam from Bangladesh before 1966. Persons who entered between 1966 and 1971 are conferred all qualities of a citizen except the right to vote until ten years from the day of their detection as a “foreigner.” After ten years, they too are regularised. Those who were expelled but managed to re-enter illegally before 1971 or those who entered after 1971 are to be deported. This special provision created two artificial distinctions by:

  1. Granting regularisation to Bangladeshi migrants who entered Assam before 1971 but not to those who entered other bordering states,
  2. Allowing “illegal migrants” who entered India before 2003 to naturalise under Section 6 but not those who entered Assam after 1971.

Additionally, the Citizenship (Amendment) Act of 2019, excludes non-Muslims who entered India from Afghanistan, Pakistan, and Bangladesh before 2015 from the category of “illegal migrants.” It eases their residency requirement from eleven years to five years. The ease is a welcome move. However, the country and religion based classifications are non-secular, arbitrary, and unreasonable.  Many have argued that they violate the Indian Constitution which guarantees certain fundamental rights to all persons irrespective of their citizenship status.

A state cannot be compelled to grant citizenship. However, the Universal Declaration of Human Rights, 1948 includes in Article 15, “Everyone has the right to a nationality”. The UDHR has become customary international law binding on all states. Granting nationality through naturalisation is an important step in eliminating statelessness. Since India has an obligation towards reducing statelessness under customary international law and other international treaties, India must facilitate naturalisation of stateless persons. A provision obstructing “illegal migrants” from naturalisation is in tension with international law. Articles 31 and 34 of the 1951 Refugee Convention and Article 32 of the 1954 Convention relating to the Status of Stateless Persons instruct easing the naturalisation process for refugees and stateless persons. Ireland has reduced residency requirements for refugees and waived naturalisation certificate fee for refugees and stateless persons.

As a good practice, one may refer to Prabhleen Kaur v. Union Of India. The only country the petitioner had any real connection to under Section 8 of the Foreigners Act, 1946 was India. Denying her Indian citizenship was held a violation of Article 15 of the UDHR. The court stated that her good character evidenced in her school and college certificates, her knowledge of the nation and her being a part of a community entitle her to be naturalised under Section 6(1) of the Act and she cannot be denied citizenship.These are the factors generally looked at while granting Indian citizenship.

With the refugee crisis and statelessness becoming global phenomena, naturalisation is becoming increasingly important as a means for non-citizens to find a safe space and a community in a strange land. Ironically, the process does exactly the opposite of what it promises, acting as a constant reminder of the ‘otherness’ that one must shed for a mere chance at approval and acceptance. India must remove the restriction on “illegal migrants” and ease the naturalisation requirements for refugees and stateless persons, irrespective of religion and country. This would only be a small step towards ensuring equity and fairness.

Suggested readings:

  1. Katherine Tonkiss, ‘What’s So Bad about Citizenship Testing?’ (E-International Relations, 28 November 2014) https://www.e-ir.info/2014/11/28/whats-so-bad-about-citizenship-testing/ accessed 24 November.
  1. Oded Löwenheim & Orit Gazit, ‘Power and Examination: A Critique of Citizenship Tests’ (2009) 40(2) Security Dialogue.
  1. Albert Kraler, Migration and Citizenship: Legal Status, Rights and Political Participation (Amsterdam University Press 2006) ch 2.
  1. Pritam Baruah, ‘Not Just Equality, the CAA Betrays Constitutional Values of Dignity, Integrity’ The Wire (27 December 2019) https://thewire.in/rights/caa-constitution-equality accessed 24 November 2020.
  1. Vatsal Raj, ‘Statelessness in India – Seeking Solutions in International Law’ (Cambridge International Law Journal, 11 February 2020) http://cilj.co.uk/2020/02/11/statelessness-in-india-seeking-solutions-in-international-law/#:~:text=Migration%20is%20a%20phenomenon%20of%20human%20civilisation.&text=The%20solution%20lies%20in%20the,dictate%20the%20laws%20of%20citizenship accessed 24 November 2020.
  1. Asha Bangar, ‘Statelessness in India’ (2017) Statelessness Working Paper Series No. 2017/02 https://files.institutesi.org/WP2017_02.pdf accessed 24 November 2020.
  1. Oxford Handbook of Citizenship (Oxford University Press 2017) ch 16.
  1. Graziella Bertocchi and Chiara Strozzi, ‘The Evolution of Citizenship: Economic and Institutional Determinants’ (2006) IZA Discussion Paper No. 2510 http://ftp.iza.org/dp2510.pdf accessed 24 November 2020.
  1. Ministry of Home Affairs, ‘Procedure For Applying Online For Indian Citizenship’ https://indiancitizenshiponline.nic.in/Ic_GeneralInstruction.pdf accessed 24 November 2020.

Stateless Persons

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Niharika Jain, is part of the clinic’s outcomes.

A person is considered to be stateless if they are not recognised as nationals or citizens of any country. As per the UNHCR, at present there exist over 10 million stateless persons in the world, however only 3.9 million of them are accounted for. Civil society organisations have pointed out that this number can be as high as 15 million. In India, over 1.9 million people are facing the risk of statelessness after being excluded from the National Register of Citizens (NRC) implemented in Assam in 2019.

Statelessness is often a result of conflicting nationality laws, where one allows for nationality to be acquired at birth and the other through descent if one’s parent is also a national. It can also be a result of discrimination in nationality laws based on factors such as religion, ethnicity, gender, along with instances where the State arbitrarily deprives persons of their nationality, as in the case of Assam. Earlier the mandate of UNHCR on statelessness extended only to stateless persons who were refugees. However, it is now known that even though some stateless persons are refugees, many stateless persons never cross an international border. Statelessness affects the basic rights, including the right to nationality, that every citizen enjoys, which includes fundamental rights, civil and political rights, and economic rights.

The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness address various issues related to statelessness in the world. Article 1 of the 1954 Convention defines a ‘stateless person’ as one who is not considered a national by any State under the operation of its law. The 1961 Convention provides that a person may acquire nationality of a contracting state or not be deprived of it if they would otherwise be stateless. Part II of the Indian Constitution stipulates who is a citizen of India, but is silent on stateless persons. It is pertinent to note that India has not ratified either of the two conventions. However as per Article 51 (c) of the Constitution, the Government needs to foster respect for international law which includes treaty obligations that India is party to and customary international law. This includes the Universal Declaration of Human Rights, 1948 (UDHR), as well as the International Covenant on Civil and Political Rights (ICCPR), Convention on the Rights of the Child (CRC) and other treaty provisions that safeguard the right against arbitrary deprivation of nationality.

The Citizenship Act of India, 1955 was initially envisaged based on jus soli practice, wherein citizenship was granted by virtue of the person’s birth on state territory. This was followed by the Citizenship (Amendment) Act, 1986 that introduced restrictions based on jus sanguinis, wherein a person’s citizenship became dependent on citizenship of their parents. Section 3(1)(b) of the Act states that a person born on or after 1 July, 1987 but before the 2003 amendment shall be a citizen if either of their parents were citizens at the time of birth. However, this has the potential of creating a situation of statelessness where both parents are non-citizens or possess no nationality but the child is born in India.

The Citizenship (Amendment) Act, 2003 has the serious potential of aggravating the problem of statelessness in India as it excludes ‘illegal migrants’ and their descendents from citizenship. An ‘illegal migrant’ is defined as “a foreigner entering India without valid documents”. Section 3(1)(c) confers citizenship by birth only when at least one parent is an Indian citizen and the other is not an illegal migrant. Further, section 5 and section 6 of the Act explicitly disqualifies illegal migrants and their children from registration and naturalization respectively, and in any case as the registration of minors requires a valid foreign passport, which they do not possess due to statelessness. This poses a threat of statelessness as they are unable to acquire citizenship from any of the provisions of the Citizenship Act, despite residing in India for a long time, having family ties and attachment to India.

The identification of stateless persons within a jurisdiction is an important step in ensuring they are accounted for in legal documents and can benefit from various human rights commitments. In India, the Foreigners Act, 1946, which has been put in place to regulate the entry, presence and departure of foreigners in India, fails to distinguish between the different categories of non-citizens. The Act defines a foreigner as “a person who is not a citizen of India” and bundles both stateless persons and persons with another nationality together without differentiation. Section 8 of the Act on the determination of nationality does not account for the risk of statelessness where, after the completion of the determination procedure, a foreigner appears to have no nationality. There is no mention of ways in which the issue of statelessness can be resolved, or of the fate of such persons on identification.

The Passports Act, 1967 is the only Indian legislation that mentions the category of stateless persons and caters to their need to have a record of their identity. Section 4 of the Act provides for issuance of passport, travel document and certificate of identity. Schedule II part II of the Passport Rules, 1980 states that a Certificate of Identity can be issued for stateless persons residing in India, for foreigners whose country is either not represented in India or whose nationality is in doubt. However, the form for the certificate makes it mandatory to submit a ‘residential permit’ along with information regarding the ‘last permanent address abroad’. This is based on the assumption that the applicant is a migrant from abroad and fails to account for a person who may not have left the country. This was addressed in the case of Sheikh Abdul Aziz v. State NCT of Delhi, where the HC recognised the urgency of determining the legal status of the petitioner as he had been detained for seven years in addition to his sentence under Section 14 of the Foreigners Act. The Court directed the Government and the Passport authorities to issue a stateless certificate under Rule 4 and grant him a Long-Term Visa (LTV) after the failure of nationality determination. This enabled his right to a dignified existence upon Indian soil.

More recently, the National Register of Citizens implemented in India has left many on the verge of statelessness. The final NRC list, published on August 31st 2019, excluded about 1.9 million people, leaving them at the risk of statelessness. As per scholars, this coupled with the Citizenship (Amendment) Act, 2019 is discriminatory in nature as it only allows non-Muslims, who are religiously persecuted minorities in Pakistan, Bangladesh and Afghanistan, to be granted citizenship. Section 14A added by the 2003 Amendment to the Citizenship Act, 1955 authorized the Government to compulsorily register every Indian citizen in a National Register of Indian Citizens and issue National Identity Cards. The purpose of this is to identify and deport illegal immigrants. The first National Register of Citizen was prepared for Assam, after the 1951 census of India, to identify illegal immigrants, but it was not maintained. This was again taken up following the SC order in 2013 whereby the Government was directed to update the NRC for Assam. As per several high-ranking government ministers, NRC is proposed to be implemented across India. There are concerns that it may result in putting more people across India at the risk of statelessness if they are unable to show documents that prove their ancestors were citizens of India.

Suggested Readings:

  1. “Securing Citizenship India’s legal obligation towards precarious citizens and stateless persons”, Centre for Public Interest Law, Jindal Global Law School, September 2020.
  2. Bikash Singh, ‘Citizenship Amendment Bill: Why Assam is protesting?’ Economic Times (17 December, 2017)
  3. India and the Challenge of statelessness: A review of the legal framework relating to nationality, National Law University, Delhi, 2012.
  4. The Institute on Statelessness and Inclusion, The Worlds Stateless: Deprivation of Nationality, March 2020, Microsoft Word – FINAL PART I.docx (institutesi.org).
  5. United Nations Human Rights Office of the High Commissioner, Institutional Discrimination and Statelessness in India, Special Rapporteur on Freedom of Religion or Belief, Mr. Ahmed Shaheed, June 1st 2020, Microsoft Word – Statelessness in India.docx (ohchr.org).

Gauhati High Court on the issue of Res Judicata in Foreigners’ Tribunal Proceedings

This research 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 Sitamsini Cherukumalli and edited by Arunima Nair.

I. Background


Res judicata is a principle of law which states that the final decision given by a competent court on a matter between the same parties is binding, and cannot be put to litigation again. It is enshrined in Section 11 of the Code of Civil Procedure.

It was held by Gauhati High Court in Musstt. Amina Khatun vs. Union of India and Ors. [(2018) 4 Gauhati Law Reports 643] that the principle of res judicata, as articulated by Section 11 of the Code of Civil Procedure, would not apply in proceedings instituted under the Foreigners Act and the Foreigners (Tribunal) Order, since the Foreigners’ Tribunal was not a Court, and the proceedings could not be said to be judicial proceedings.

However, the Supreme Court in Abdul Kuddus vs. Union of India & Ors [(2019) 6 SCC 604] considered, among other questions, the nature of a Foreigners’ Tribunal proceeding. It held that the opinions given by the Foreigners’ Tribunal were quasi-judicial and not administrative in nature, because such orders by the Foreigners’ Tribunals had civil consequences. It elaborated on the difference at para 23:

The opinion by the Foreigners Tribunal is a quasi-judicial order and not an administrative order. The expression ‘quasi-judicial order’ means a verdict in writing which determines and decides contesting issues and questions by a forum other than a court. The determination has civil consequences. Explaining the meaning of quasi-judicial body in Indian National Congress (I) vs. Institute of Social Welfare & Ors (2002) 5 SCC 685, it was held that when anybody has a legal authority to determine questions affecting the rights of subjects and a duty to act judicially, such body of persons constitute a quasi-judicial body and decision given by them is a quasi-judicial decision. It would also be a quasi-judicial order if the statute empowers an authority to decide the lis not between the two contesting parties but also when the decision prejudicially affects the subject as against the authority, provided that the authority is required by the statute to act judicially. Further, what differentiates an administrative act from the quasi-judicial act is that a quasi- judicial body is required to make an enquiry before arriving at a conclusion. In addition, an administrative authority is the one which is dictated by policy and expediency whereas a quasi-judicial authority is required to act according to the rules.

II. Gauhati High Court judgments applying Abdul Kuddus in FT cases

Several recent Gauhati High Court orders and judgments have applied Abdul Kuddus to petitions challenging individuals’ second references to FTs after having been declared Indian citizens in a previous FT proceeding. The Jahir Ali v. Union of India and Ors. [WP (C) No. 3402/2020] judgment was given by the Court on 3-3-2021, in response to a writ challenging an order given by the Foreigners’ Tribunal (1st) Mangaldai, Assam in 2018 declaring the petitioner to be a foreigner, despite an earlier order from 2015 by the very same Foreigners’ Tribunal declaring him to be an Indian National. In the 2018 order, the Tribunal held that the principle of res judicata will not apply in a proceeding under the Foreigners Act, 1946, went into the merits of the case again, and found that the Petitioner had not adduced satisfactory evidence.

The Gauhati High Court held in Jahir Ali that as correct as the Tribunal might have been in following the ratio of Amina Khatun (supra) at that time, it was no longer tenable in light of the Abdul Kuddus judgment. They declined to get into the merits of the case or the quality of the evidence adduced, and reiterated that the earlier decision of the Foreigners’ Tribunal declaring the Petitioner to be an Indian would have a binding effect, given that the opinion rendered by a Foreigners’ Tribunal is a quasi-judicial order and not an administrative one. The Court further said that the Foreigners’ Tribunal cannot go into the merits of an earlier order given on the question as they are not exercising an appellate or review jurisdiction.

By applying the principle of res judicata, the Court remanded the matter and directed the concerned Tribunal to only look into the question of whether the present petitioner is the same person in favour of whom the earlier 2015 FT order declaring him to be an Indian national was passed. If found to be the same person, the case is to be dropped and the petitioner is to be “set at liberty without any condition.”

 In Alal Uddin v. Union of India and Ors. [WP (C) 3172/2020], the petitioner had been proceeded  against twice by the same Foreigners’ Tribunal (2nd) in Nagaon, with the Tribunal first declaring the petitioner as an Indian citizen in 2008 and then subsequently declaring him a foreigner in the impugned order from 2019. The petitioner had contested the maintainability of the second reference before the Tribunal by pleading that Abdul Kuddus would bar the second set of proceedings. The Tribunal rejected this contention by proclaiming that Abdul Kuddus was delivered in the context of Abdul Kuddus’ inclusion in the NRC, and is thus inapplicable to the petitioner’s case. The Gauhati High Court in a judgment dated 12-03-2021 disagreed and held that the Tribunal’s interpretation was incorrect. The bench reiterated that Abdul Kuddus explicitly discussed the legal implications of Sarbananda Sonowal Iand II [(2005) 5 SCC 665 and (2007) 1 SCC 174 respectively] and the nature of Foreigners’ Tribunals, especially that they are quasi-judicial authorities whose orders would operate as res judicata. The Court thus set aside the 2019 order by the Nagaon (2nd) Tribunal, and held that the previous Tribunal order from 2008 declaring the petitioner to be an Indian citizen will stand.

Similarly in Bulbuli Bibi v. Union of India [WP (C) 7810/2019], in a judgment rendered on 22-03-2021, the Court reinstated the petitioner’s first FT order from 2013 that held her to be an Indian citizen and set aside the subsequent FT reference from 2017 declaring her to be a foreigner. Although the two reports of the Government Verification Officer in the two references had inconsistencies in the names of the petitioner’s husband and father, the Court opined that these discrepancies are minor and it was clear that it was the same person, i.e. the petitioner, who had been proceeded against twice. By applying Abdul Kuddus,  the Court held that the second 2017 FT order is hit by res judicata and barred.

III. Table of Judgments from Gauhati High Court post-Abdul Kuddus (chronologically descending from latest first)

S.NoName and CitationDate of JudgementJudge(s) NamesRelevant Extracts
1Md. Abdul Syed v. Union of India  

WP(C) 2447/2021
8-4-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra SaikiaLearned counsel for the petitioner submits that the petitioner has been proceeded twice and, as such, the second proceeding will be hit by the principle of res judicata as held by the Hon’ble Supreme Court in the case of Abdul Kuddus vs. Union of India reported in (2019) 6 SCC 604.   Registry will call for the records in respect of Case No.BNC/FT/609/2016 from the Foreigners Tribunal, Tezpur 5th, Biswanath Chariali, Biswanath, Assam.   Learned counsel for the petitioner submits that the petitioner has not yet been detained on the strength of the impugned order dated 07.12.2019 passed in Case No.BNC/FT/609/2016 by the Member, Foreigners Tribunal, Tezpur 5th, Biswanath Chariali, Biswanath, Assam.   In that view of the matter, in the meantime, the petitioner, if not already arrested, may not be arrested and deported from India. However, the petitioner shall appear before the Superintendent of Police (Border), Biswanath within 15 (fifteen) days from today, who may obtain necessary information and documentation as required under the rules from the petitioner for securing his presence. On such appearance, the petitioner shall furnish a bail bond of Rs. 5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the said authority in connection with the aforesaid Case No.BNC/FT/609/2016, whereafter, the petitioner shall be allowed to remain on bail. The concerned Superintendent of Police (Border), Biswanath shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioner, if so advised. The petitioner also shall not leave the jurisdiction of Biswanath district without furnishing the details of the place of destination and necessary information including contact number to the Superintendent of Police (Border), Biswanath.
2Ramesha Khatun v. Union of India  

WP(C) 2451/2021
8-4-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra SaikiaLearned counsel for the petitioner submits that the petitioner has been proceeded twice and, as such, the second proceeding will be hit by the principle of res judicata as held by the Hon’ble Supreme Court in the case of Abdul Kuddus vs. Union of India reported in (2019) 6 SCC 604.   Registry will call for the records in respect of F.T. Case No.122/F/15 from the Foreigners Tribunal No.2, Dhubri, Assam.   Learned counsel for the petitioner submits that the petitioner has not yet been detained on the strength of the impugned order dated 28.02.2020 passed in F.T. Case No.122/F/15 by the Member, Foreigners Tribunal No.2, Dhubri, Assam.   In that view of the matter, in the meantime, the petitioner, if not already arrested, may not be arrested and deported from India. However, the petitioner shall appear before the Superintendent of Police (Border), Dhubri within 15(fifteen) days from today, who may obtain necessary information and documentation as required under the rules from the petitioner for securing her presence. On such appearance, the petitioner shall furnish a bail bond of Rs. 5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the said authority in connection with the aforesaid F.T. Case No.122/F/15, whereafter, the petitioner shall be allowed to remain on bail. The concerned Superintendent of Police (Border), Dhubri shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioner, if so advised. The petitioner also shall not leave the jurisdiction of Dhubri district without furnishing the details of the place of destination and necessary information including contact number to the Superintendent of Police (Border), Dhubri.
3Must. Afia Khatun v. Union of India  

WP(C) 1297/2020
31-3-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra Saikia[6] Be that as it may, perhaps the Tribunal could not have proceeded with the matter if it was found that the present petitioner is the same person, who was proceeded earlier in Case No.FT/H/106/2014, in view of the law laid down by Abdul Kuddus vs. Union of India reported in (2019) 6 SCC 304, as the subsequent proceeding will be hit by principle of res- judicata and as such, any subsequent initiation of proceeding against the same person will be impermissible.   [8] Considering the above, we are also of the view that apprehension of the petitioner can be dispelled if the Tribunal examines whether the present petitioner is the same person who was proceeded earlier, for which the petitioner would produce and adduce necessary evidence in that regard before the Tribunal. However, we make it clear that the said examination by the Tribunal would be only for the purpose of finding out as to whether the present petitioner, Musstt.Afia Khatun @ Musstt. Afia Khatoon, W/o Samsul Hoque aged about 42 years is the same person or not, who was proceeded in earlier case i.e. in Case No.FT/H/106/2014 before the Foreigners Tribunal, Hojai, Sankardev Nagar. If the Foreigners Tribunal on hearing of the parties is satisfied that the present petitioner is the same person, who was proceeded in Case No.FT/H/106/2014 before the Foreigners Tribunal, Hojai, Sankardev Nagar, the Tribunal will not proceed further with the present proceeding in F.T.(D) Case Nol.1276/2015 and close the same on the strength of the earlier opinion dated 26.06.2014 by holding the petitioner not to be a foreigner, but an Indian as the second proceeding will be hit by the principle of res- judicata as held by the Hon’ble Supreme Court in Abdul Kuddus (Supra). However, if it is found that the present petitioner is not same, the Foreigners Tribunal will proceed with the matter in accordance with law.
4Md. Sahar Ali. v. Union of India  

WP(C) 2105/2021
25-3-2021HMJ. N. Kotiswar Singh, HMJ. Manish Choudhury[3] It has been submitted that in view of the decision of the Hon’ble Supreme Court rendered in Abdul Kuddus vs Union of India, (2019) 6 SCC 604 , as the principle of res- judicata is applicable in the proceeding before the Foreigners Tribunal, any subsequent initiation of proceeding against the same person will be impermissible. The petitioner submits that accordingly he filed an application before the aforesaid Tribunal on 23.11.2020 praying for not proceeding with the present proceeding initiated against the petitioner by claiming to be the same person in favour of whom the Foreigners Tribunal No.1, Barpeta had earlier on 16.01.2017 given a favourable opinion. Learned counsel for the petitioner submits that the matter is now pending before the same Tribunal. However, learned counsel for the petitioner apprehends that the matter may be proceeded on merit about his citizenship.   [5] We are of the view that apprehension of the petitioner is not warranted as the Tribunal can examine the petitioner as well as the original documents related to him as to whether the petitioner is the same person who was proceeded earlier. However, we make it clear that the said examination would be only for the purpose of finding out as to whether the present petitioner, Md. Sahar Ali @ Shar Ali S/o Rabi Uddin @ Rab Udin aged about 52 years is the same person or not, who was proceeded in earlier case i.e. in F.T. Case No.226/2016. If the Foreigners Tribunal on hearing of the parties is satisfied that the present petitioner is the same person, who was proceeded in F.T. case no.226/2016, the Tribunal will not proceed further with the present proceeding in F.T. Case No.387/2018 and close the same on the strength of the earlier opinion dated 16.01.2017 by holding the petitioner not to be a foreigner, but an Indian as the second proceeding will be hit by the principle of res-judicata as held by the Hon’ble Supreme Court in Abdul Kuddus (Supra). However, if it is found that the present petitioner is not same, the Foreigners Tribunal will proceed with the matter in accordance with law.
5Md. Mahar Uddin v. Union of India  

WP(C) 3128/2017
23-3-2021HMJ. N. Kotiswar Singh, HMJ. Manish Choudhury[25] The Hon’ble Supreme Court in Abdul Kuddus Vs. Union of India, (2019) 6 SCC 604 has already held that principle of res-judicata is applicable in a proceeding before the Foreigners Tribunal. However, it has been brought to the notice of this Court that, there are instances where proceedings have been reinitiated against the same person, inspite of the person being already declared an Indian. Thus, initiating a subsequent investigation and making another reference and initiating a proceeding again before a Tribunal can be avoided if such data are properly maintained, which will help detect such unnecessary duplication of efforts.   [26] It has been further observed that some of the proceedees though hail originally from one district go to another district for their livelihoods and are proceeded in a different district away from their hometowns. Thus, they face serious disadvantages about gathering evidences and producing witnesses in support of their claim in the remotely located Tribunals. Maintenance of such proper data can help proper investigation, reference and proceeding in the appropriate district to avoid such hardships.   [27] Accordingly, we deemed it appropriate to direct the State Government to examine the feasibility of applying Information and Communication Technology to the proceedings before the Foreigners Tribunals, to maintain and preserve data, to make the functioning of the Foreigners Tribunal more efficient, transparent and systematic. It has been stated at the Bar that a large number of cases of more than 1.4 lakhs of suspected illegal immigrants are pending before the Foreigners Tribunals and many more persons are being investigated for reference. Thus, use of Information and Communication Technology will certainly enhance efficacy, help proper management of the huge number of cases and avoid duplicating and conflicting opinions.
6Bulbuli Bibi v. Union of India  

WP (C) 7810/2019
22-03-2021HMJ. N. Kotiswar Singh, HMJ.  Soumitra Singh[7] Thus it appears that the only difference or inconsistency is about the difference is the name of the husband, viz. Nazim and Najimuddin. We feel that this difference is minor and not substantial and hence can be ignored. Similarly, the name of the father of the proceedee has been recorded as late Giapuddin Fakir in the first proceeding and in the second proceeding, it has been recorded as Giyas Fakir. We are also of the opinion that these are minor variations, and as such the same can be ignored.   [8] From the above, it appears that it was the same person who was sought to be proceeded against. However the finding given in the first proceeding under Case no. K/FT/D/771/11(B/KJR/D, voter/2010/164) vide opinion dated 30.09.2013 that the proceedee is not a foreigner of 1966-1971 stream and her name should not have been recorded in the ‘D’ voters list. The said finding given in earlier opinion dated on 30.09.2013 has not been interfered with and has attained finality. Accordingly, we are of the view that the subsequent finding opinion given by the Foreigners’ Tribunal in K/FT/D/714/10, (No. B/KJR/D.voter/2010/108, dated 23.12.2010) rendered 18.08.2017 is barred by principle of res-judicata, as has been held by the Hon’ble Apex Court in judgment reported in Abdul Kuddus vs Union of India, (2019) Vol. 6 SCC 604, that in the proceedings before the Foreigners’ Tribunal, the principle of res-judicata is applicable.
7Sabiran Khatun v. Union of India  

WP(C)/8372/2019
16-3-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra SaikiaLearned counsel for the petitioner submits that the subsequent proceeding initiated by Foreigners Tribunal No.2, Kamrup (M), Guwahati in FT (D.V.) Case No.457/2018 is hit by principles of res judicata in view of the order passed by the Hon’ble Supreme Court in Abdul Kuddus vs. Union of India, (2019) 6 SCC 604 . Accordingly, since the petitioner was earlier opined to be an Indian Citizen by the Foreigners’ Tribunal No.1, Dhubri, in F.T. Case No.1076/D/11, the present proceeding cannot lie being barred by the principles of res judicata. Accordingly, learned counsel for the petitioner submits that the order passed by the learned Foreigners’ Tribunal No.2, Kamrup(M) is not maintainable. We are also, prima facie, satisfied that in Abdul Kuddus (Supra) case the Hon’ble Supreme Court has clearly held that the Foreigners’ Tribunal is a quasi judicial body and the principles of res judicata will apply.   In view of above, we are prima facie satisfied that the order passed by the learned Foreigners’ Tribunal No.2, Kamrup(M) in FT (D.V.) Case No.457/2018 on 14.10.2019 needs to be stayed for further consideration and accordingly, the proceedings in FT (D.V.) Case No.457/2018 shall remain stayed until further orders.
8Alal Uddin v. Union of India and Ors.  

WP (C) 3172/2020
12-3-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra Saikia[4] We are, however, unable to agree with the said opinion of the learned Foreigners’ Tribunal No.II, Nagaon passed on 30.09.2019. Though, in Abdul Kuddus (Supra), the Hon’ble Supreme Court was considering the matter relating to inclusion of the name in the NRC, yet at the same time the Hon’ble Supreme Court had also considered the provisions of Foreigners’ (Tribunals) Order, 1964 and had discussed about the various legal implications arising out of Sarbananda Sonowal vs. Union of India, reported in (2005) 5 SCC 665 as well as Sarbananda Sonowal vs. Union of India, reported in (2007) 1 SCC 174 and elaborately discussed about the procedure for disposal of such matter by the learned Tribunal under the Foreigners’ (Tribunals) Order, 1964 and in that context it was held by the Hon’ble Supreme Court that the Tribunal functions as a quasi-judicial authority and it would be incorrect to hold that the opinion of the Foreigners Tribunal and/or the consequential order passed by the Registering Authority would not operate as res judicata.   [6] Accordingly, the present petition is allowed by setting aside the impugned order dated 30.09.2019 passed by the learned Foreigners’ Tribunal (2nd) Nagaon in F.T. Case no.1082/2011. As a result, the order passed by the learned Foreigners’ Tribunal (2nd), Nagaon on 19.08.2008 shall stand revived and the petitioner’s status as an Indian citizen in terms of the earlier opinion passed by the learned Foreigner’s Tribunal (2nd), Nagaon, on19.08.2008 will stand.
9Jahir Ali vs. Union of India  

WP (C) No. 3402/2020
3-3-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra Saikia[15] Be that as it may, since we have already held that the principle of res judicata will apply in view of the decision in Abdul Kuddus (supra), the Foreigners’ Tribunal in the present instant proceeding cannot re-examine the legality or otherwise of the opinion rendered earlier by the Foreigners’ Tribunal, except to ascertain as to whether the petitioner was the same person against whom the Foreigners’ Tribunal in F.T. Case No.771/2012 had given its opinion. If it is found on consideration of the materials on record and after hearing the parties that the present petitioner was indeed the same person against whom the Foreigners’ Tribunal had given its opinion in the earlier proceeding in F.T.Case No.771/2012, the present proceeding will be barred by application of principle of res judicata.   [16] Accordingly, for the reasons recorded above, we allow this petition by remanding the matter to the concerned learned Tribunal to consider the case of the petitioner afresh by giving him an opportunity to prove that the present petitioner, namely, Jahir Ali, aged about 52 years, S/O Nesar Ali @ Mesar Ali,R/O Ward No.6, PO & PS-Mangaldai, District-Darrang, Assam, is one and the same person in whose favour an opinion was earlier given by the same Tribunal on 15.07.2015 in F.T. Case.
10Musst. Fulbanu Nessa v. Union of India  

WP(C) 725/2021
15-2-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra SaikiaAccordingly, learned counsel for the petitioner submits that the subsequent review and the opinion rendered by the Foreigners’ Tribunal, Diphu, on 16.03.2020 is ex facie illegal apart from the fact that in the present case the principle of res judicata applies as held by the Hon’ble Supreme Court in Abdul Kuddus vs. Union of India & Ors. reported in (2019) 6 SCC 604.   It has been submitted that the petitioner is in custody since 17.03.2020 on the strength of the aforesaid order dated 16.03.2020 passed by the learned Foreigners’ Tribunal, Diphu.  On perusal of the materials available on records, we are prima facie satisfied that the petitioner has made out a case for her release on bail and suspension of the order dated 16.03.2020 passed by the learned Foreigners’ Tribunal, Diphu.  
11Sabita Das vs The Union Of India  

WP(C) 182/2020  
12-2-2021HMJ. Michael ZothankhumaThe plea was specifically taken before the Foreigners Tribunal-II, Lakhimpur, North Lakhimpur that the petitioner has been already declared as not a foreigner. Ext.-9, which, however was not accepted by the Tribunal. It has been submitted that the Hon’ble Supreme Court in Abdul Kuddus Vs. Union of India, reported in 2019 (6) SCC 604 has held that the principle of res judicata will also apply in the proceedings before the Foreigners Tribunal. The matter needs examination. We are prima facie satisfied that the impugned order needs to be stayed.  
12Rejia Khatun v. Union of India  

WP(C) 2811/2020
31-8-2020HMJ. Manojit Bhuyan, HMJ. Hitesh Kumar SarmaPetitioner has put to challenge the proceedings in FT Case No.2854/2012, pending before the Foreigners’ Tribunal Tezpur (1 st), Assam, primarily on the ground that in an earlier proceeding i.e. in FT Case No.14/2016, she was declared as not a foreigner. Reliance is placed on the principle of res- judicata by making reference to the case in Abdul Kuddus vs. Union of India and Others (Civil Appeal No.5012/2019), reported in (2019) 6 SCC 604.   Issue Notice.   No fresh steps are required to be taken as all respondents are represented. Heard on the interim prayer.   Pending disposal of the writ petition, the proceeding in FT Case No.2854/2012 pending before the Foreigners’ Tribunal Tezpur (1st), Assam shall remain stayed.
13Basanti Sarkar v. Union of India and Ors.  

WP(C) 6768/2019
18-12-2019HMJ. Suman Shyam, HMJ. Parthivjyothi SaikiaThis writ petition is directed against the final order and opinion dated 31/07/2019 passed by the Foreigner’s Tribunal(2), Lakhimpur, North Lakhimpur, in connection with FT Case No. 262/2007.   Mr.Bhowmik submits that besides being perverse, the impugned order is also barred under the principles of res judicata since the petitioner has already been declared as an Indian citizen by the Foreigner’s Tribunal by order dated 21/04/2010.   From the perusal of the materials on record, we find that by order dated 21/04/2010 passed in connection with LFT-II(D) case No. 274/2008, the learned Tribunal had declared that the petitioner is not a foreigner. The said order was passed after taking note of the documents including voters’ list of 1966 produced by the petitioner, which contains the names of the father and mother of the petitioner.   Under the circumstances, we are of the prima facie view that the subsequent opinion of the learned Foreigner’s Tribunal is untenable in the eye of law.
14Sribas Biswas v. Union of India  

WP(C) 495/2019
1-2-2019HMJ. Achintya Malla Bujor Barua, HMJ. Ajit BorthakurThe petitioner raises an issue that two parallel reference proceedings were initiated against the petitioner, where one of them resulted in judgment and order dated 30.05.2014 in FT.K.D.V Case No.8716/2011, wherein he had been declared to be a citizen of India. Upon the said fact being brought to the notice of the Tribunal in the other proceeding being FT.K.1746/2017, the Tribunal by the order dated 11.10.2018 by relying on the pronouncement of this Court in Amina Khatun –vs Union of India and others, reported in 2018 (3) GLT 1took the view that as the principle of res-judicata is not applicable, therefore, the other proceeding is maintainable.   An issue for consideration would arise as to whether a parallel proceeding in contradistinction with that of a subsequent proceeding would be maintainable merely by following the principle laid down in Amina Khatun (supra) that the principle of res-judicata is not applicable in respect of a reference under the Foreigners Tribunal Order, 1964.   In view of the above, in the interim, it is provided that further proceeding in the FTK No.1746/2017 before the Foreigners Tribunal No.4, Kamrup (M) be stayed.
15Maran Das v. Union of India

WP(C) 477/2019
1-2-2019HMJ. Achintya Malla Bujor Barua, HMJ. Ajit BorthakurThe petitioner raises an issue that two parallel reference proceedings were initiated against the petitioner, where one of them resulted in judgment and order dated 25.01.2017 in FT.K.D.V Case No.279/2016, wherein he had been declared to be a citizen of India. Upon the said fact being brought to the notice of the Tribunal in the other proceeding being FT.K.84/2018, the Tribunal by the order dated 11.10.2018 by relying on the pronouncement of this Court in Amina Khatun –vs Union of India and others, reported in 2018 (3) GLT 1 took the view that as the principle of res-judicata is not applicable, therefore, the other proceeding is maintainable.   An issue for consideration would arise as to whether a parallel proceeding in contradistinction with that of a subsequent proceeding would be maintainable merely by following the principle laid down in Amina Khatun (supra) that the principle of res-judicata is not applicable in respect of a reference under the Foreigners Tribunal Order, 1964.   In view of the above, in the interim, it is provided that further proceeding in the FTK No.84/2018 before the Foreigners Tribunal No.4, Kamrup (M) be stayed.

This note was last updated on 11 May 2021.

Case Note: Md. Misher Ali v Union of India & Ors.

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 Sitamsini Cherukumalli.

Full case name: Md. Misher Ali @ Meser Ali v Union of India & Ors

Case No.: CA 1058-1059/2021

Brief Facts:

A reference was made by the Superintendent of Police (Border) Sivsagar district against the Petitioner in Police Enquiry No. 135/10, alleging that he is an illegal migrant who entered India after 24th March 1971 without valid documents. A notice of the subsequent Foreigners’ Tribunal proceedings was served to the Petitioner “by hanging” the same at his temporary address in the district of Sivsagar. No attempt was made by the investigating agencies or the process server to issue a notice at his permanent address in Dhubri district, Assam.

Following the service of notice at his temporary address, the Foreigners’ Tribunal, Jorhat, Assam, pronounced an ex-parte order in FT Case No. SVR/310/2010, holding that the Petitioner was indeed a foreign national on 22nd March 2018. The Petitioner has since been in custody since 15th May 2019. The Petitioner’s appeal as well as his review petition against the FT order were dismissed by the Gauhati High Court, following which he has approached the Supreme Court of India.

Issues

  1. Was the notice issued to the Petitioner in the FT Case No. SVR/310/2010 in accordance with Paragraph 3(5)(f) of the Foreigners (Tribunals) Order 1964?
  2. Is the Petitioner barred from approached the Supreme Court of India under 3A of the Foreigners (Tribunals) Order 1964, which grants a time period of 30 days for the Aggrieved to move proceedings against an ex-parte order?

Relevant Laws:

  • Paragraph 3(5)(f) of the Foreigners (Tribunals) Order 1964

If the proceedee has changed the place of residence or place of work, without intimation to the investigating agency, the process server shall affix a copy of the notice on the outer door or some other conspicuous part of the house in which the proceedee ordinarily resides or last resided or reportedly resided or personally worked for gain or carries on business, and shall return the original to the Foreigners Tribunal from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

  • 3A of the Foreigners (Tribunals) Order, 1964 [Renumbered to 3C from 3A by G.S.R. 409(E). dt. 30-5-2019 (w.e.f. 4-6-2019)]

3C (1) 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.


Arguments of the Petitioner

  1. The Petitioner contended that the authorities had knowledge of his permanent address, in spite of which there was no attempt made to serve a notice of the proceedings at the permanent address despite being aware that this omission goes against the principles of natural justice.

Arguments of the Respondent-State

  1. The notice was hung outside the door in pursuance of Para 3(5)(f) of the Foreigner’s (Tribunals) Order. If there is a change in the place of residence or work without intimation to the investigating agency, the process server is authorised to serve the notice at the place where an individual ordinarily resides, and in doing so, the authorities have complied with the aforementioned provision.
  2. The Petitioner is barred from approaching the Supreme Court as it contravenes 3A of the Foreigner’s Tribunals Order, which gives a period of 30 days to move proceedings against an ex-parte decree passed by the FTs.

Ruling

  1. The Authorities were aware of the Petitioner’s permanent residence. This is reflected in several documents, including the impugned order of the Foreigners Tribunal; a statement by the Appellant which was recorded by the Senior Inspector of Police in 2010; and the interrogation report before the Inspector of Police dated 22 January 2010 – all the aforementioned documents make note of the Petitioner’s permanent address being in Dhubri district, Assam.
  2. Paragraph 3(5)(f) deals with situations where a proceedee has changed his place of residence or work without intimation to the investigating agency, and this provision is not attracted when it is proved that the investigating agency had knowledge of the proceedee’s permanent address.
  3. Paragraph 3A (now Paragraph 3C), prescribing a period of thirty days for a person to move proceedings against an ex-parte order by demonstrating sufficient cause for their non-appearance is only applicable when notice has been duly served. When it has been held by the application of facts that the notice was not duly served, the thirty-day limit prescribed by Paragraph 3C cannot be attracted.
  4. The ex-parte order of the Foreigners’ Tribunal and the dismissal of the review petition by the Gauhati High Court dated 6th December 2019 are set aside. Foreigners’ Tribunal, Jorhat, Assam is ordered to restore Case No. FT/SVR/310/20

Solving a Trilemma — The Way Forward for the NRC

This is a guest post by Alok Prasanna Kumar. He is the Co-Founder and Lead of Vidhi Karnataka. His areas of research include judicial reforms, constitutional law, urban development, and law and technology. He has also previously practised in the Supreme Court and the Delhi High Court.

The preparation of the National Register of Citizens (NRC) for the State of Assam, carried out under the supervision of the Supreme Court of India — between 2014 and 2019 — has been a source of much anguish. Not just for the tedious procedure it involved, but also the eventual consequences on those left out of the list. Out of Assam’s estimated population of 3.3 crores, 3.1 crore, or so, were included in the list; but approximately 19 lakh people were left out. There is no legal certainty for the residents of Assam who have been left out of the NRC.

Merely being excluded from the NRC does not amount to cancellation or loss of citizenship. That can only be done by the Union Government on the recommendation of the Foreigners’ Tribunal under the Foreigners Act 1946. The Foreigners’ Tribunal, set up under the Foreigners (Tribunals) Order, 1964   can, on the basis of evidence before it, render its opinion that someone is a “foreigner”, and, therefore, not a citizen.

Those left out from the NRC are in a state of limbo — being persons whose citizenship status is now in doubt. Section 9 of the Foreigners Act places the onus of proving citizenship on the person whose citizenship is in question. Failing to do so will render the person stateless unless they can show some connection to  another country (under Section 8 of the Act) – which might not be possible for most since there is little hard evidence to connect them with any country beyond. What the NRC has done is create a population of 19 lakh trishankus — the figure from Hindu mythology who was unwanted, both in heaven and on earth, and therefore suspended upside down between the two realms.

Following the publication of the NRC in August 2019, things have remained at an uneasy status quo. Neither the Union Government, the Assam State Government, nor the Supreme Court has charted a clear way forward. There have been attempts to “reverify” the NRC but they have come to nought. A recent effort was made to remove more names from the NRC but the same is under challenge in the Supreme Court.

As it stands, the only path that seems obvious is the one of inertia — as the law stands, simply being left out of the NRC does not cancel one’s citizenship. A Foreigners’ Tribunal has to adjudicate on the merits of each person’s case before arriving at that conclusion. Is the judicial route —  often the path of least resistance in India — an appropriate way to address the future of the 19 lakh persons left out of the NRC?

The task of addressing the citizenship claims of 19 lakh people before a Foreigners’ Tribunal is a gargantuan one. To give some perspective: the total number of cases referred to the Foreigners’ Tribunals between 1985 and 2019 (over 34 years) was 4,68,905. In 2018, the last year for which complete data was available, only 14,552 cases were disposed of by the Foreigners’ Tribunals in Assam. Needless to say, at the present capacity, FTs are woefully ill-equipped to handle 19 lakh cases, in any reasonable period.

Implicit in the discussion about the people left out of the NRC, so far, has been that:  a lot of genuine citizens have been left out of the list, for a variety of reasons. If we assume that approximately half the people on the list can prove, in some manner, that they are in fact citizens of India, that still leaves nearly 10 lakh people who are now rendered stateless.

But, they are not entirely without remedy —  they can still approach the Gauhati High Court, through a writ petition, and challenge the order finding them to be non-citizens. Even assuming that only half of the persons rendered stateless may have the resources or the capacity to approach a higher forum, this would mean, about, five lakh cases flooding the Gauhati High Court, over a period of time. For a Court that, as on date (according to the NJDG portal), has only about 52,000 pending cases, this is a veritable tsunami it will be unable to handle. Even if the cases are staggered over ten years, it would amount to more than double the annual number of cases filed in the High Court!

The judicial process is not going to provide any clarity, in any reasonable period of time, to those left out of the NRC. Rather, it is likely to compound their misery as the financial, emotional and psychological costs of litigation will take a severe toll on them. 

Should, then, the NRC be junked as a whole?

There is one school of thought that argues that the entire NRC exercise is entirely illegal and unconstitutional. One argument is that the NRC, sought to be done under the Registration of Citizens and Issue of National Identity Card Rules 2003, is contrary to the Citizenship Act 1955, and therefore ultra vires. There is also the argument that contends: creating a separate citizenship regime for residents of Assam would be unconstitutional. The latter question especially, in so far as Section 6A is concerned, is pending adjudication in the Supreme Court, before a Constitution Bench.

This certainly raises the question as to why the Supreme Court proceeded with overseeing the NRC exercise when fundamental questions about its legality and constitutionality were pending. The Supreme Court itself has clarified that the NRC updating exercise will be subject to the orders in the pending challenge to the constitutionality of Section 6A and other provisions relating to citizenship, applicable only to Assam.

If the SC upholds the validity of these provisions then the present (unsatisfactory) status quo, continues. If the Supreme Court does not — and the entire NRC is held to be unconstitutional — it will not necessarily address all the problems.

Leaving aside what it means for the institutional credibility of the Supreme Court or the sanctity of the Assam Accord —  there is also the fact that the NRC has provided a measure of security to those who were included in it, from accusations of being “outsiders”. The fact that those who were accused of being “outsiders”, solely by virtue of their religion or language, are more confident of their status has become the basis for dismissing the NRC as “flawed”! There is no guarantee that a fresh NRC will in any way provide a solution to the problems of those included and those left out without causing an increased burden to all the inhabitants of Assam, once again. The existing procedure was traumatic for the economically vulnerable, and inflicting it on them again would not serve any purpose; it will only recreate an unhappy status quo.

The NRC itself is not a recent judicial or legislative innovation. Demands for its updation precede the Assam Accord itself, and it was intended to address concerns of indigenous people and native Assamese about the large-scale influx of people from Bangladesh (mostly illegally), and what that might do to the cultural and demographic character of the State. It would not behove anyone (let alone a savarna mainland Indian such as myself) to simply dismiss such concerns as “ethno-fascism” or xenophobia.

The demand for an NRC has its origins in the immediate aftermath of India’s chaotic partition — in 1947 — when peoples left their homes in panic, unsure of whether they will end up in Muslim-majority Pakistan or Hindu-majority India. Assam, which has historically seen the movement of peoples from what is now West Bengal and Bangladesh, was faced with an influx of people — in a manner that threatened to completely change the demographic and indigenous character of the state. The worries of both the native Assamese and the Bengalis, who had come over from what would eventually become East Pakistan, are reflected in the representations sent to the Constituent Assembly and the then Central Government on the question of citizenship. At the same time, there were Bengalis who had been living in Assam for generations who did not wish to be caught in this conflict over identity and citizenship and also sought the protection of the Government. The solution proposed was the National Register of Citizens, which was first prepared in 1951.

When the Assam Accord was signed in 1986, the Indian government shifted the cut-off date to 1971, effectively putting to rest the citizenship status of those who had come to Assam before that. Even for those who had entered the country illegally — between 1966 and 1971 — a process was provided for them to become citizens, with a few limitations on exercising franchise. This was reflected in Section 6A of the Citizenship Act. A total scrapping of Section 6A might, therefore, jeopardize the rights of even those who have benefited from it, and unravel the Assam Accord.

Here then is the trilemma which presents itself —  how to chart a path forward, with respect to the NRC, that addresses the human rights of those left out of it, without unsettling the rights of those already on the list, or scrapping a key part of the Assam Accord, which embodies a key demand of native Assamese and indigenous people of the region?

One way out of this is to offer a path of full citizenship to the individuals left out of the NRC, without fundamentally altering the demographics of the State of Assam, or disturbing the rights of anyone already deemed a citizen under the NRC. This would be a one-time measure available to those who sought inclusion in the NRC and did not get it. It would not be available to those who entered India illegally after August 31, 2019. Such a measure is already on the books in Section 6A of the Citizenship Act.

However, this does not fully address the concerns of genuine citizens of India who have not been able to get enlisted in the NRC. For them, the appropriate solution would be to widen the set of proofs; and the manner in which they can show residency, parentage, et al in a manner that would conclusively show their citizenship. The present list of documents permitted, to show proof of citizenship, is in no way exhaustive of the ways in which one can prove one’s citizenship in accordance with the Citizenship Act, 1955. Further, it privileges documentary evidence (a significant barrier) over oral and other evidence which are just as valid in law and might be easier for people to produce. It has to be kept in mind that citizenship is a legal fiction that comes into effect after certain facts are established and establishing these facts should not become an ordeal.

This should be offered as an option. Those who are confident of being able to prove their citizenship should be allowed to do so. Those, however, who are not going to be able to, for whatever reason, should be offered a pathway to citizenship.

A caveat is necessary here — the NRC and its fallout is the result of social and political processes more than a hundred years in the making. From colonial administrations which saw Assam as no more than a place to grow tea and extract oil to Hindutva right-wing parties looking to divide the state on religious lines for political ends — Assam has seen much turmoil and disturbance over the issue of immigration and ethnicity. Even as the Constitution of India attempted to give clarity on issues of citizenship across the country, this question was left unresolved in the context of Assam. Yet, the Constitution lays down certain principles that can guide us out of this thorny thicket and find a way out to protect the future of those left out of the NRC.

Absence of Jurisdictional Fact of Application of Mind in the Reference

This research 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.

  1. The Referring Authority is required to show the application of mind to the facts and law before him, and then record his satisfaction based on the materials collected by the Investigating Officer before forwarding a reference to the Tribunal.
  • State of Assam v. Moslem Mandal reported in (2013) 3 GLR 402 at para 98 [Full Bench]

[97] The reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee.”.

  1. Meaning of Application of Mind:
  • Application of mind is not defined in any case but has been applied in various contexts where an authority is given discretionary powers and it has been held that the power is to be exercised by application of mind to the facts and circumstances of the case in hand.
  • When discretion is conferred on an authority, it must personally exercise the same; it must apply its own mind to the facts and circumstances of each case and come to its own decision. If the authority acts without applying its mind to the case before it, then the action or decision taken by it will be without jurisdiction because it has not exercised its discretion in accordance with the law.
  • In accordance with State of Assam v. Moslem Mandal reported in (2013) 3 GLR 402 at para 98, along with the case file, the referring authority must forward their observations recording their satisfaction in such manner that demonstrates their application of mind to the facts and circumstances of the case. The absence of such reasons must be held to vitiate the entire proceeding before the Foreigners’ Tribunal.
  • The non-application of mind is even more relevant in ex parte cases where the opinion of the Foreigners’ Tribunal is based entirely on the main grounds along with the supporting materials forwarded with the reference.
  1. Facets to demonstrate the application of mind:
  • Material facts of the case should be taken into consideration:

In the case of Satpal v. State of Haryana (AIR 2000 SC 1702), in the context of the pardoning powers of the Governor under Article 161 of the Constitution, the Supreme Court held that the decision-making authority must be apprised of the materials facts in the case to demonstrate proper application of mind.

  • The authority should be personally satisfied:

The appropriate authority must be personally satisfied as to the grounds on the basis of which the decision is taken. For example, in the case of Jaganath v. State of Orissa (AIR 1966 SC 1140), an order of detention under rule 30(1) (b) of the Defence of India Rules was challenged on the ground that it was as not based upon the satisfaction of the Government. The Supreme Court observed that in the order of detention, six grounds were verbatim reproduced from the relevant empowering section, whereas the affidavit of the Minister who issued the order indicated that he was “personally satisfied” of only two out of the six grounds mentioned in the order. The Supreme Court ruled that the Minister had acted mechanically in passing the order and quashed the order of detention.

  • Application of mind must be apparent from the order itself:

In the context of the issuance of summons on a private criminal complaint, the Supreme Court in Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others ((1998) 5 SCC 749), has held that application of mind has to be indicated by disclosure of mind on the satisfaction. The Magistrate is not to act as a post office in taking cognizance of the complaint. There must be sufficient indication in the order as to the application of mind. Similarly, in Birla Corporation Limited v. Adventz Investments and Holdings Ltd. & Another (AIR 2019 SC 2390), the Supreme Court has held that application of mind has to be indicated by disclosure of mind on satisfaction, through a reasoned order (though not elaborately reasoned). To give reasoned decisions is a requirement of natural justice and the order must show which particular circumstance received due consideration while arriving at the decision [State (Delhi Administration) vs Anil Puri And Ors. 28 (1985) DLT 474, para 10]

  • Application of mind must be prima facie through the reasons recorded:

As per Section 147 of the Income Tax Act, 1961, the Income Tax Department has the power to reassess an individual’s previously filed income tax returns by sending a notice under section 148 of the Income Tax Act, 1961 along with recording one’s satisfaction that the income has escaped assessment. In Joint Commissioner of Income-Tax v. George Williamson (Assam) Ltd. (2002 SCC OnLine Gau 351; (2002) 258 ITR 126; (2003) 181 CTR 69), a Division Bench of the Gauhati High Court held that in the absence of specific material before the assessing authority and any independent enquiry, there did not appear to be a link between the facts found and the satisfaction arrived at by the assessing authority. It was accordingly held that there was no application of mind to the facts alleged to have been found, and the action taken was quashed as being not maintainable in law. Similarly, in the case of Pr. CIT vs. G & G Pharma India Ltd. ((2016) 384 ITR 147 (Del.)), the Delhi High Court held that application of mind by the Assessing Officer to the material produced before issuing the notice for reassessment was a basic jurisdictional requirement for reassessment. Without analysing and forming a prima facie opinion on the basis of the material produced, it was not possible for the Assessing Officer to conclude that he had reason to believe that income had escaped assessment. For other High Courts, see Yuvraj v. Union of India ((2009) 315 ITR 84) [Bombay High Court Division Bench]; Kamala Properties v. Inspecting Assistant Commissioner of Income Tax, Special Range-IV Calcutta (1992 SCC OnLine Cal 124; (1992) 2 CHN 295) [Calcutta High Court Single Judge].

  • Non-application of mind is a jurisdictional error and would result in vitiation of the proceedings:

In Anirudhsinhji Karansinhji Jadeja v. State of Gujarat ((1995) 5 SCC 302), a three-judge bench of the Supreme Court quashed proceedings initiated under the TADA for the reason that the sanction granted by the State Government for the prosecution was without the proper application of mind. It observed that the State Government merely followed the advice of the Deputy Superintendent of Police without any independent application of mind to the facts and held as follows:

[14] The present was thus a clear case of exercise of power on the basis of external dictation. That the dictation came on the prayer of the DSP will not make any difference to the principle. The DSP did not exercise the jurisdiction vested in him by the statute and did not grant approval to the recording of the information under TADA in the exercise of his discretion.

[15] The aforesaid is however not all. Even if it be accepted that as an additional safeguard against the arbitrary exercise of the drastic provisions, the State Government had provided by administrative instructions an additional safeguard whereunder the DSP was required to obtain the sanction/consent of the State Government, we are of the view that in the present case the same was given by the State Government without proper application of mind. We have taken this view because the sanction/consent was given by the Government merely on the basis of the fax message dated 17-3-1995 of the DSP. The reason for our saying so is that though there is no record a fax message of Deputy Director General of Police also, which is dated 18-3-1995, the sanction/consent order has mentioned above the fax message of the DSP only. Now, no doubt the message of the DSP is quite exhaustive, as would appear from that message which has been quoted above in full, we are inclined to think that before agreeing to the use of harsh provisions of TADA against the appellants, the Government ought to have taken some steps to satisfy itself whether what had been stated by the DSP was borne out by the records, which apparently had not been called for in the present case, as the sanction/consent was given post-haste on 18-3-1995, i.e., the very next day of the message of the DSP… The State Government gave the sanction without even discussing the matter with the investigating officer and without assessing the situation independently. All these show lack of proper and due application of mind by the State Government while giving sanction/consent.

[16] For the aforesaid twin reasons, we state that the entire proceeding against the appellants under TADA is vitiated and the same is, therefore, quashed.”

Challenging Ex Parte Orders on the Ground of Improper Service of Notice

This research 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.

  1. Relevant Statutes/Rules/Orders:

Paragraph 3C of the Foreigners (Tribunals) Order, 1964 provides for applying before the FT for setting aside an ex parte order within thirty (30) days from the date of the said FT Opinion in the following words:

“3C. Procedure for setting aside ex parte order:

  1. 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.
    • The Proceedee may file an application to the Foreigner Tribunal within thirty days to review the decision of the Foreigners’ Tribunal claiming that he/she is not a foreigner and the Foreigners’ Tribunal may review its decision within thirty days of the receipt of such application and decide the case on merits.
    • Subject to the provisions of this Order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.”

  2. Full Bench Decision in State of Assam v. Moslem Mondal, 2013 (1) GLT 809:

Important Extracts on the Issue of Service:

[80] The procedure laid down in the Code of Civil Procedure as such is not applicable in a proceeding before the Tribunal, except in relation to the matter stipulated in clause 4 of the said Order.

[99] One of the most important stages is, apart from serving the main grounds on which the proceedee is alleged to be a foreigner, just and proper service of notice. The 1964 Order also envisage giving a reasonable opportunity to the proceedee to demonstrate that he is not a foreigner. Unless the Tribunal ensures just and proper service of notice, the requirement of giving reasonable opportunity would be defeated. The same would also then violate the basic principles of natural justice.

[100] Though the Tribunals under the 1964 Order, as amended by the 2012 Order, can regulate its own procedure for disposal of the reference proceeding, it is seen from various cases that no uniform procedure is adopted by the Tribunals in the matter of service of notice. Unless there is proper service of notice it cannot be said that the person against whom such notice is issued is treated fairly and he has been given a fair trial.

[101] The proceeding before the Tribunal being quasi-judicial and in the nature of civil proceeding, in our considered opinion, the procedure for service of notice has to be evolved in the light of the procedure laid down in the Code of Civil Procedure for service of summons on the defendants in a civil suit. The proper service of notice also assumes importance as the Tribunal has to render its opinion also in an ex-parte proceeding, on the question referred to it, even in the absence of any evidence on record and solely on the basis of materials initially submitted by the referral authority before the Tribunal and at the time of making the reference, as the referral authority is not required to adduce any evidence to substantiate that the proceedee is not a foreigner, which burden, in view of Section 9 of the 1946 Act, lies on the proceedee.

[102] The procedure laid down herein below shall apply to all the proceedings pending before the Tribunal where the notices are either yet to be issued or issued but not yet served:

  • The proceedee shall be served with the notice, together with the main grounds on which he is suspected to be a foreigner, as far as practicable, personally, whose signature/thumb impression, as proof of service, is to be obtained.
  • Such notice shall be issued in the address where the proceedee last resided or reportedly resides or works for gain. In case of change of place of residence, which has been duly intimated in writing to the investigating agency by the proceedee, the Tribunal shall issue a notice in such changed address.
  • The notice shall be issued by the Tribunal in the official language of the State also indicating that the burden is on the proceedee to prove that he is an Indian citizen and not a foreigner.
  • The service of notice on any adult member of the family of the proceedee, in case he is found to be not present at the time of service, shall constitute the service on the proceedee. In token of such service, the name and signature/thumb impression of such adult member shall be obtained. In case such adult member refuses to put the signature or thumb impression, a report in that regard shall be submitted.
  • If the proceedee or any available adult member of his family refuses to accept the notice, the process server has to give a report in that regard along with the name and address of a person of the locality, who was present at the time of making such an effort to get the notices served, provided such person is available and willing to be a witness to such service. The signature/thumb impression of such witness, if present and willing, must be obtained.
  • In case the proceedee has changed the place of residence or place of work, without intimation to the investigating agency, a report in that regard shall be submitted by the process server. A copy of the notice shall then be affixed in a conspicuous place where the proceedee last resided or reportedly resided or worked for gain, containing the name and address of a respectable person of the locality, if available and willing to be a witness for that purpose. The signature/thumb impression of such person, in that case, shall also be obtained in the said report.
  • Where the proceedee or any adult member of his family are not found in the residence, a copy of the notice shall be pasted in a conspicuous place of his residence, witnessed by 1(one) respectable person of the locality, subject to his availability and willingness to be a witness in that regard. In that case, the signature or thumb impression of that person shall also be obtained in proof of the manner in which such service is effected.
  • Where the proceedee resides outside the jurisdiction of the Tribunal, the notice has to be sent for service to the officer-in-charge of the police station within whose jurisdiction the proceedee resides or last resided or last known to have been resided or works for gain. The process server shall then cause the service of notice in the manner as provided hereinabove.
  • In case no person is available or willing to be the witness of service of notice, as mentioned above, or refused to put his signature or thumb impression, a signed certificate/verification is to be filed by the process server to that effect, which shall be sufficient proof of such non-availability, unwillingness and refusal.”

    3. Amendment to the Foreigners (Tribunals) Order 1964:

Pursuant to the guidelines in State of Assam v. Moslem Mondal (supra), paragraph 3(5) of Foreigners’ (Tribunals) Order, 1964, was amended by way of the Foreigners’ (Tribunals) Amendment Order, 2013, vide Order No. GSR 770(E) dated 10.12.2013 to include the said guidelines.

Table of Cases

S. No.CASE NAME  FACTS  DECISION  
 Abdul Barek vs Union of India WP(C) No. 2989 of 2018Upon being approached for receiving the notice, the petitioner refused to accept the same. Accordingly, notice put up on the wall of the house of the petitioner[5] Refusal of notice cannot be construed to be a service of the notice under Rule 3(5)(f) of the Foreigners (Tribunals) Order. 1964. [6] As the notice was not served on the petitioners, we, therefore, set aside the order. But at the same time, we also cannot be oblivious to the fact as per the report of the process server the petitioner had refused to accept the notice. Although in the course of the present proceeding, the petitioner seeks to justify the same by stating that her name was incorrectly written in the notice of the Tribunal but incorrect spelling of the name cannot be the basis for a proceedee to refuse to accept the notice. If there is any doubt on the mind of the proceedee that the notice may actually have been meant for some other person, it is for the proceedee to appear before the Tribunal and bring to its notice for verification as to whether the person appearing before the Tribunal was itself the person upon whom the notice was intended. [7] As the petitioners are declared to be foreigners without appropriate materials on record for adjudication on merit, we are of the view that the petitioners deserve another opportunity. But at the same time as the petitioners had refused to accept the notice, from that point of view, there cannot be any infirmity in the order dated 28.9.2016. (Costs imposed on the petitioners and case sent to FT for hearing)
 Abdus Salam vs Union of India   WP(C) 1357/2019Petitioner could not be traced out at   the   appropriate place; the signature of the house owner was taken as a witness. The Report also doesn’t indicate where the notice was kept hangingThe manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Abul Hussain vs Union of India   WP(C) 44/2019Petitioner could not be traced, after taking signature in the main copy, the duplicate was hung. The report silent on whose signature was taken & where the notice was hung.The manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Ahmed Darbesh vs Union of India   WP(C) 354/2019Petitioner not found in the given address; notice served on another person who according to the process server was the maternal uncle of the petitioner.We are of the view that in the manner, the notice was served as indicated by the process server, the same is not in conformity with the requirement of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Atabur Rahman Vs Union of India   WP(C) 45/2019Petitioner not found in the address; notice was hanged on a tree in a public place.We are of the view that in the manner, the notice was served as indicated by the process server, the same is not in conformity with the requirement of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Babul Hussain vs  Union of India   WP(C) 60/2019Petitioner couldn’t be located meaning thereby that the notice remained unserved.In view of the procedural aberration of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964, we are of the view that the manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Benu Bhowmick vs Union of India   WP(C) 4974/2018The notice in a substituted manner was served as the petitioner was not found at her address. The Tribunal relied upon the pronouncement by the Supreme Court in CIT vs. Daulat A. 1967 SC 1952 which was as follows: “Substitute service is a valid service even through no copy is affixed in the court. House, affixing in the last residence is sufficient.” The said pronouncement of the Supreme Court was in a proceeding under the Income Tax Act, 1961 which has its own prescribed procedure for service of notice.[7] We have perused the report of the process server which provides that as the petitioner was not found in the address given, therefore, a copy of the same was hung. But the report of the process server does not state as to where the notice was hung. [8] In view of the above, we are of the view that the manner in which the notice was served is at variance from the procedure prescribed under Rule 3(5)(F) of Foreigners (Tribunal) Order 1964. [9] In view of the procedural aberration of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964, we are of the view that the manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Farida Begam Vs Union of India   WA 333/2015Notices of the proceeding issued by the Tribunal were served thrice, on the first two occasions on her husband and on the third occasion on her brother.[11] The Foreigners’ (Tribunals) Order, 1964, as amended, makes it abundantly clear that in the absence of the proceedee, notice can be validly served on any adult member of the family. Therefore, a plea of the appellant regarding nonreceipt of notice is untenable and cannot be accepted. (Writ petition dismissed)
 Fazina Khatun vs Union of India   WP(C) 7454/2018Petitioner had changed her place of residence without intimation, a copy of the Notice affixed/pasted on the wall where the petitioner last resided. The fact of service of Notice in the substituted manner, as above, is also recorded by the Tribunal.[5] Having regard to the above, we find that there was due compliance of service of Notice in substituted manner, as required to be done under Clause 3(5)(f) of the Foreigners (Tribunals) Order, 1964. From the Service Report, it clearly transpires that copy of the Notice was affixed on the outer wall of the house in which the petitioner last resided. In this connection, we may also place on record that according to the petitioner she is still living in the same village. [6] Despite Service of Notice in substituted manner in accordance with law, the petitioner neglected to appear before the Tribunal and/or to file written statement. [7] grant of fair and reasonable opportunity cannot be enlarged to an endless exercise. A person who is not diligent and/or is unmindful in taking steps to safeguard his/her interest, he/she does so at his/her own risk and peril. In a situation where no evidence is adduced or the burden is not discharged, the only option left to the Tribunal would be to declare the proceedee to be a foreigner, based on the grounds of reference upon which appropriate proceeding was initiated, notice was duly issued and duly served upon the proceedee in accordance with law (Writ petition was dismissed)
 Malekjan Bibi vs Union of India   WP(C) 1142/2019Petitioner not found at her place of residence, notice hung at a conspicuous place of the village in presence of a witness and submitted report.”Hanging of the notice at a conspicuous place of the village in presence of witnesses is contrary to the requirement of Rule 3(5)(f) of the Foreigners Tribunal Order, 1964. It is taken note that the report of the process server does not even indicate as to where the notice of the petitioner was kept hanging. The manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Monir Uddin vs Union of India W.P.(C) No. 219 of 2019Non-availability of the proceedees at their given address. The process server thus served notice by hanging. The order does not clearly show as to in what manner the hanging was made.In view of the procedural aberration of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964, we are of the view that the manner in which the notice was deemed to be served was in violation of the provision of Rule 3(5)(f) of the Foreigners (Tribunals) Order, 1964. (Order of FT set aside)
 Muzibur Rahman vs Union of India   WP(C) 6404/2019As the petitioner could not be found, a copy of the notice was affixed on the notice board of the office of the Gaonburah.[6] Having regard to the manner of service, as above, we are of the considered view that substituted service of notice, as required to be done under 3(5)(g) of the Foreigners (Tribunals) Order, 1964, was not complied with. We are also of the view that the petitioner was denied the opportunity of hearing to contest the case on merits. It clearly appears that no notice was served on the petitioner by affixing a copy of the notice pasted in a conspicuous place of his residence, witnessed by one respectable person of the locality who has given his signature or thumb impression and has agreed to be available and stand as a witness with regard to such service of notice. (Order of FT set aside)
 Sahinur Islam vs Union of India WP(C) 7818/2019As the petitioner was not available in the given address, notice was returned unserved.[5] Having regard to the admitted fact that service of notice was not effected in any manner on the petitioner, as required to be done under Paragraph 3(5) of the Foreigners (Tribunals) Order, 1964, we are of the view that the petitioner was denied the opportunity of hearing to contest the case on merits. (Order of FT set aside)

The Indian Judiciary and Its Record on Statelessness

Anushri Uttarwar is a fourth-year B.BA. LL.B.(Hons.) student and Student Fellow at Centre for Public Interest Law, Jindal Global Law School. Arunima Nair is a second-year LL.B. student at Jindal Global Law School and an Editor of the Parichay Blog. Anushri and Arunima are among the authors of Securing Citizenship: India’s legal obligations towards precarious citizens and stateless persons, released in November 2020. 

Securing Citizenship highlights India’s legal obligations towards stateless persons and precarious citizens within its territory. It does so by expounding the applicable international human rights framework to the state, with every person’s right to nationality and every state’s duty to prevent statelessness as its two integral interwoven threads. Additionally, the report links the said international framework to the Indian state’s corresponding obligations under present domestic law. This article discusses one such aspect viz. the approach of Indian courts in cases involving persons of uncertain nationalities.  

The Indian state’s efforts to uphold every individual’s right to nationality and its duty to avoid and reduce statelessness have been minimal. It has not signed either of the two international conventions on statelessness and has not actively engaged in any global efforts to fight statelessness. As we have noted in our report, neither the Foreigners Act, nor the Citizenship Act, nor the Passport Act and their attendant rules, account for the legal lacunas that can create statelessness. The statutory terms ‘illegal migrant’, ‘foreigner’, and ‘citizen’ cannot be interchangeably applied to a stateless person. The present citizenship determination regime, which places the burden of proof upon the impugned individual and suffers from a well-documented lack of functional independence and procedural safeguards, has actively jeopardized the citizenship status of 1.9 million individuals in Assam in August 2019 (with subsequent deletions and an ongoing Government-led demand for 10-20% re-verification of the 2019 NRC).  

The Indian judiciary’s record on this front has been mixed. The Supreme Court’s judgments in the Sarbananda Sonowal cases (2005 and 2006) decisively laid down the roadmap governing citizenship determination in India. In these cases, the petitioners had impugned the Illegal Migrants (Determination by Tribunal) Act, 1983 (‘IMDT’) and the Foreigners (Tribunals for Assam) Order, 2006, both of which placed the onus upon the state to prove an individual’s foreigner status. The Court agreed and struck them down as unconstitutional. It anchored its reasoning in a broad interpretation of “external aggression” in Article 355 of the Constitution, stating that a “vast and incessant flow of millions” of illegal migrants from Bangladesh into Assam was akin to a “war”, posing a serious existential threat to the economic and social fabric of Assamese society. The Bench cast it as the Central Government’s “foremost duty” to protect its citizens from such aggression; statutes like the IMDT made it far too “cumbersome” to detect and deport foreigners and fulfill this duty, as opposed to the far more “effective” Foreigners Act. Sarbananda Sonowal is still good law; it is the underlying foundation for subsequent Supreme Court decisions, such as the one kick-starting the updation of the NRC and its eventual monitoring of the modalities of the entire NRC exercise

Nevertheless, the Indian Judiciary has occasionally taken cognizance of the tumultuous issue at hand. In each of those occasions where the courts decided to address the said issue, they have consistently observed the insufficiency of domestic laws addressing statelessness and the disastrous consequences of statelessness. These observations have aided them in interpreting the existing domestic statutes liberally so as to prevent the individual in question from being rendered stateless. Interestingly, in these cases, while the courts reasoned their judgments in line with international law on statelessness, they did not make concrete references to it. Four such cases have been outlined below. 

In Gangadhar Yeshwanth Bhandare, the respondent was found to have been a part of a secret Indian governmental mission. His participation in that mission had caused him delay in adhering to the guidelines that had to be followed by those in pre-liberation Portuguese territories who wanted to be considered Indian citizens. It was then alleged that he was not an Indian citizen. The Supreme Court held that the respondent was indeed an Indian citizen since he had renounced his Portuguese nationality already and to hold him to not be an Indian citizen at this stage would render him stateless. Such a consequence was unacceptable for the Court. 

Similarly, in Jan Balaz, the Gujarat High Court interpreted the Indian Citizenship Act, 1955 liberally to prevent the chances of the children born to an Indian surrogate from becoming stateless. The court observed that the children in question would not be able to claim citizenship by birth in Germany (due to the country not recognising surrogacy). It observed that they would have been rendered stateless if they were not accorded Indian citizenship, thereby affirming that they would be eligible for Indian citizenship by birth.  

In Prabhleen Kaur, the petitioner’s nationality was suspected, thereby causing her passport renewal application to be rejected by the relevant authority. The Delhi High Court held that rejecting her application on a mere doubt is manifestly unjust at that stage, as it could leave her stateless, indicating that she can only be ascribed an Indian nationality. 

Once again, in Ramesh Chennamaneni the Telangana High Court pioneeringly held that the power of the Indian government to deprive one’s citizenship under Section 10 of the Act is restricted by several constraints, including the duty of a state to avoid statelessness within its territory. Since in the situation before it, deprivation of citizenship would result in the petitioner being left stateless, the court set aside the committee decision that cancelled his citizenship. 

Apart from circumstances where a petitioner was at the risk of statelessness by virtue of the (in)actions of the Indian state, Indian courts have also acknowledged the need to legally recognize the status of stateless persons existent on Indian territory. By this we mean persons in India who have been rendered stateless by the actions of another state, not India. The Delhi High Court in Sheikh Abdul Aziz (W.P. (Crl.) 1426/2013) was confronted with a petitioner who had been languishing in immigration detention, far beyond his initial sentence under the Foreigners Act. The petitioner’s nationality determination had failed i.e. the Government could not confirm which nationality the man belonged to. The Court here pulled up the Government for its inaction in issuing a stateless certificate to the petitioner, and directed it to do so as the necessary first step towards the petitioner’s overdue release from detention. The stateless certificate, and the subsequent granting of a Long-Term Visa, were essential steps to ensure the petitioner did not become a phantom within the legal and civic community.  

Moreover, our report also argues that stateless certificates cannot and should not operate as obstacles to any application for citizenship. The Indian state has an obligation under international law to prevent and reduce statelessness, and to ensure that individuals can enjoy their right to nationality. Stateless individuals must not be stateless in perpetuity; their continuous residence and community ties in India should entitle them to be naturalised as citizens, per the procedures for naturalization. In the celebrated Chakma case, the Supreme Court created precedent by holding that stateless individuals like the Chakmas in Arunachal Pradesh had a statutory right to be considered for Indian citizenship under Section 5 of the Citizenship Act. Local administrative officials therefore had no grounds for stalling and refusing to forward Chakma individuals’ citizenship applications. The Delhi High Court, in a subsequent case dealing with a plea by a Tibetan individual who was born in India in 1986 to two Tibetan refugees, held that the petitioner’s stateless identity certificate did not bar her from being eligible for Indian citizenship by birth under Section 3(1)(a) of the Citizenship Act, and directed the MEA to process her application expeditiously. 

The pattern of the judiciary utilising international law standards on statelessness continues even in cases where the Court could not come to a decision immediately in favor of the petitioner, as the Patna High Court did recently in Kiran Gupta v State Election Commission. The appellant here was challenging an Election Commission decision that cancelled her Panchayat electoral victory, on the grounds that she was not an Indian citizen when elected. She was a Nepali citizen at birth, and had resided in India and raised her family for 17 years since her marriage to her Indian husband, along with possessing a Voter ID, a PAN card, and property in her name here. She had even terminated her Nepali citizenship in 2016. However, she admitted that she had failed to register for Indian citizenship under Section 5 of the Citizenship Act.  

The Court’s hands were tied: the conferral of Indian citizenship is clearly an Executive function, with the various procedures laid out in the statute. It held that it could not step into the shoes of the Executive and declare her an Indian citizen. Despite this, however, the Court demonstrated sensitivity towards the petitioner’s unusual situation. She was caught in a precarious situation where she possessed neither Indian nor Nepali documents of citizenship. In its final few pages, the Court crucially reiterates the duty upon the Indian state to prevent and reduce statelessness, in spite of signing neither statelessness convention. India has signed and ratified several other human rights treaties with provisions limiting nationality deprivation, such as the ICCPR, CEDAW, ICERD, and CRC. In its operative portion, the Court directed the Government to be mindful of the petitioner’s peculiar circumstances as and when she applies for citizenship. The Patna High Court demonstrates the capacity of courts to step in and affirm the internationally recognised and binding duties to prevent and reduce statelessness.  

At this juncture, it is imperative to note that the aforementioned cases present what we would consider ‘aspirational’ statelessness jurisprudence in the context of India. They are, unfortunately, exceptions rather than the norm: a litany of court decisions follow the overarching rationale of Sarbananda Sonowal and are either unaware of or wholly indifferent to individuals’ right against arbitrary deprivation of citizenship and the duty to prevent statelessness under international law. Foreigners Tribunals (‘FTs’) have consistently been passing orders that are arbitrary and ripe with procedural inadequacies, thereby designating an increasing number of individuals as foreigners. Adverse FT decisions are based on any and every minute clerical error or inconsistencies within their documents. Many such decisions have been upheld on appeal in the Gauhati High Court; as an indicative selection, in Nur Begum v Union of India and Sahera Khatun v Union of India, the burden of proof as per Section 9 of the Foreigners Act was interpreted stringently as one that rests absolutely upon the proceedee. In Jabeda Begum v Union of India, 15 official documents were found to be insufficient to discharge the said burden.  

To conclude, given the polar contrasts within the Indian statelessness jurisprudence, the judiciary’s role will remain incomplete unless accompanied by comprehensive legislative and policy changes. This would require India to not just formally accede to the 1954 and 1961 Conventions, but to also reform its current citizenship framework and explicitly allow for the expedited naturalisation of stateless persons. One hopes that the Executive catches up soon and fortifies its obligation.