Interview with Advocate M.R. Shamshad

M.R. Shamshad is a New Delhi based Advocate-on-Record at the Supreme Court of India. His practice spans a wide range of constitutional, civil, arbitration, matrimonial, and personal law matters in the Supreme Court and various High Courts in India. He represents one of the petitioners challenging the Citizenship (Amendment) Act, 2019 – Mr. Asaduddin Owaisi, Member of Parliament from Hyderabad (a copy of the Petition can be accessed here). The Citizenship (Amendment) Act, 2019 received presidential assent on 12 December 2019, shortly after which ~200 petitions were filed before the Supreme Court challenging its constitutionality. More than two years after the petitions were filed, the challenges are yet to be substantially heard.

This interview has been edited for length and clarity.

Md. Tasnimul Hassan: You represent one of the petitioners who has challenged the Citizenship (Amendment) Act, 2019 (CAA). What prompted you to challenge it and why do you see it as unconstitutional?

M.R. Shamshad:  I am representing the petitioner in my professional capacity, but I feel from my heart that the CAA is arbitrary, unreasonable, discriminatory; a law which will ultimately hit all those who are politically inconvenient to the regime which has brought this law. A reading of it may look very innocent, but it has very serious consequences.

Prior to the CAA, the Citizenship Act, 1955 (‘1955 Act’) had undergone about 9 amendments between 1957 to 2015, but it remained region and religion neutral. In the CAA, for the first time, the government chose religion and region as the basis for granting citizenship to a foreign national. The CAA primarily aims to alter the current 1955 Act to provide for the acquisition of Indian citizenship for a certain category of ‘illegal immigrants’ from only Afghanistan, Pakistan, and Bangladesh. In doing so, it lays down qualifying criteria that fail to pass the tests laid down for such laws in Part III of the Constitution, as interpreted in numerous landmark judgments of the Supreme Court.

MTH: One of the main grounds for alleging the CAA to be unconstitutional is that it welcomes migrants from certain religious communities while rejecting migrants from others. By having such manifestly arbitrary standards, you argue that the CAA in some form is encouraging (and to some extent, necessitating) religious conversion. Could you elaborate on this?

MRS: As I said earlier, CAA brings elements of region and religion. The Amending Act, particularly Section 6, offers an incentive to persons from Afghanistan, Bangladesh, and Pakistan to change their faith so as to avail the relaxed requirement of only five (5) years of residence for obtaining Indian citizenship, down from eleven (11) years prescribed under the Third Schedule to the 1955 Act.  The present legal regime is that a Hindu coming into India from a war-torn country (like Afghanistan) will be granted a long-term visa and will be put on the fast track for citizenship to be granted after 5 years of residence in India. Whereas a Muslim from the same country seeking refuge will not be eligible for a long-term visa and will have to reside in India for 11 years before he/she can even apply for citizenship.

On the face of it, this way of creating rights on the basis of specific religions (by excluding one religion) is contrary to the legislative policy in India. We have seen various legislations being passed by States defining ‘forcible conversion’ to include an offer of ‘better lifestyle’ & ‘divine pleasure.’ Here the State is granting ‘citizenship’ based on religion. That is why we say that the present framework under CAA is nothing short of incentivizing conversion by the State, in gross violation of Article 25 of the Constitution. I can also say that this is action by the State to glorify the concerned religion(s).

MTH: India is not a signatory to the UN Convention relating to the Status of Refugees, 1951. The CAA has been justified as a law for protecting refugees from minority communities from Afghanistan, Pakistan and Bangladesh. Why do you think India has simply not adopted the UN Convention, and chosen to go down this path?  

MRS: Well, as we know, the original Refugee Convention of 1951 was Eurocentric, emanating from the Second World War and thus explicitly related to a particular geographical area. However, the 1967 Refugee Protocol expanded the scope of the 1951 Convention to all countries.

India is not a party to the 1951 Refugee Convention. However, it is important to remember that India is a signatory to several other human rights conventions like the UDHR, ICCPR, ICESCR, CERD, CTCIDTP. Indian courts can also give directions to implement these international laws as it was done in the famous Vishaka (1992) case. The principle of non-refoulement, which states that no persecuted refugee must be deported to any country where they are liable to face persecution, has been recognised as a part of international law. It has become imperative that India does need a refugee law, however; even in the absence of India not being a party to the Refugee Convention, India must follow the other human rights treaties that it has signed and our country’s actions viz. CAA cannot be justified on the sole ground of it not being a party to the Refugee Convention.

MTH: You assert in your petition that CAA offends the principle of constitutional morality. What in your view should be ‘constitutional morality’ apropos of immigration?

MRS: The concept of ‘constitutional morality’ was conceived by Dr. Ambedkar as the shield of the minority against the tyranny of the majority. Recently, the concept has been defined by the Supreme Court in the Navtej Singh Johar case (2018) where the court has said that “‘constitutional morality’ which strives and urges the organs of the State to maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in multifarious ways.” The court also said that it is“the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality.” Regarding the CAA, this principle read with what Dr Ambedkar said is the answer to the question. In the present case, we witness that the State, instead of curbing the majoritarian sentiment, has very much legalized and institutionalized the ‘tyranny of the majority’ and populist ideas, and in doing so has adopted a standard apropos of immigration through certain notifications and the CAA, which clearly violates the concept of constitutional morality as adopted by the Supreme Court and as conceived by Dr. Ambedkar.

MTH: The CAA presumes religious persecution for persons belonging to certain communities. Some commentators have speculated on a CAA-NRC (National Register of Citizens) nexus, by which the CAA allows a pathway back to citizenship to a section of people left out of the NRC in Assam. When the Supreme Court adjudicates on the constitutional validity of the CAA, do you think it is important for the court to take the NRC exercise into account as well?

MRS: It is true that in the absence of a requirement to prove or even claim persecution to apply for citizenship, the CAA clearly appears to have an ‘unholy nexus’ with the NRC, aimed at identifying ‘illegal migrants’ residing in India. While the NRC exercise would result in identification of persons as ‘illegal migrants,’ the CAA seeks to simultaneously offer citizenship to illegal migrants who are Hindu, Sikh, Buddhist, Jain, Parsi or Christian on the presumed ground of persecution.

The other aspect is that the state has, in a way, placed the onus upon the individuals concerned to prove their citizenship by giving extraordinary power to the person who will scrutinise the documents, although it should be the other way around. Only those persons against whom the State has doubt of not being a citizen of India, should be called upon to produce the documents and not every ordinary Indian. We live in a system where making of documents inter alia ration card, income certificate, death certificate makes you run from one table to another, involving severe administrative hurdles – all that without any accountability of the officers concerned. Do you think the issue of citizenship will be easy for a lay person? Don’t you think religion, money, connections, education, etc. of the individual will play a crucial role in the process, which is undesirable, to say the least?

MTH: The NRC has been seen as one of the most ambitious judiciary-led bureaucratic exercises in the country. How do you see the role played by the Supreme Court in overseeing the preparation of the NRC list? Do you believe that the court acted in consonance with its constitutional mandate?

MRS: Firstly, it was a court-initiated drive. There can be a difference of opinion as to whether the Court should have taken initiative on this or not. Definitely, the Supreme Court has a role to play in this process. The Supreme Court bench presided by Justice Ranjan Gogoi (who himself came from Assam, and after demitting office as Chief Justice of India became a nominated Member of Parliament) passed various directions while undertaking the exercise of NRC in Assam. The Court gave validation to the set of documents which could be the basis for inclusion of names in the NRC. It fixed deadlines for this process. It appointed administrators to carry out this process. It recorded the provisions of funding for this purpose: obviously the government had to bear it. All this happened in the Supreme Court. In my opinion, there were severe complications involved. Many people did not understand the consequences of this process as a substantial number of people in that area are extremely poor and illiterate. Moreover, geographically, it is a flood prone area where houses keep shifting. However, the Supreme Court moved very fast to achieve this complicated exercise. And now, after this exercise was announced to be completed, the Executive appears to be saying that it shall be re-done. Why? Why after spending time—including the Supreme Court’s time and a huge amount of public money, this process needs to be re-done?

MTH: Now that the NRC is in action, what do you think the top court’s role should be in deciding the fate of 1.9 million people whose citizenship is in limbo as they are excluded from the NRC list? Also, there have been reports on how the NRC process disproportionately affects people from marginalized communities. Has the judiciary responded effectively to these structural barriers people face in the process of proving their citizenship?

MRS: Firstly, in view of the fact that this initiative of the Supreme Court has led to a serious political issue, as an institution, the Court must intervene to protect the outcome of the process. Secondly, the persons suffering due to non-inclusion of their names in the NRC must be given a fair chance, on priority basis, to agitate their grievance in front of the appropriate authority manned by people who do not carry prejudice on the basis of religion. Moreover, as the Assam NRC is an outcome of the Supreme Court regulated exercise by a dedicated bench, the best way would be to dedicate a bench of three judges to deal with the issue of those aggrieved persons. The Bench should take up the matter fortnightly and see how the administrative process handles attending to their grievances.

MTH: The Supreme Court in Sarbananda Sonowal (2005), called ‘illegal immigration’ no less than an act of ‘external aggression,’ and held that the Centre had a duty under Article 355 of the Constitution to protect states from illegal migration – how has this reasoning impacted India’s approach to policy and legislation on citizenship and immigration?

MRS: Many times, terminologies used in judgments create lots of concern in the public domain. It is not very unusual in our system. However, I must say that the directions issued from time to time in this regard were used by a set of political groups, in coordination with the media, to exploit them for their vote bank politics.  

MTH: What, in your opinion, has been the role of the Supreme Court in the CAA-NRC process? Has the Supreme Court played a broader role in furthering exclusion and statelessness since independence? Has this role changed (or possibly amplified) in the past few years?

MRS: The legality of the 2015 notifications and CAA are sub judice in about 200 writ petitions in the Supreme Court. They did not get substantive hearings, much like challenges to other major legislations like the criminality of triple talaq, amendments to the UAPA, the Kashmir issue etc. On the other hand, it is noticeable that the Supreme Court has taken up other urgent and non-urgent matters of national importance by prioritizing the hearings of matters at the administrative level or by passing judicial orders for their listing on an urgent basis. A few examples are issues relating to the Central Vista, Maratha reservations, the Tata & Mistry dispute, the contempt action against lawyer Prashant Bhushan, the issue of permanent commissioning of women in the army.

The active role of the Supreme Court is very crucial at this juncture. Right now, a citizen expects the most from the Supreme Court over any other institution. Incidentally, many of the pending issues relate to anti-Muslim rhetoric by the Executive. Conversely, at present, hearing of matters of constitutional importance itself has become an issue.

We thank Advocate Nabeela Jamil for her support in conducting this interview.

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

Read the order here.

Date of the Decision: 29.01.2021

Court: Gauhati High Court

Judges: Justice Manojit Bhuyan and Justice Parthivjyoti Saikia

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

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

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

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

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

References:

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

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

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

Read the judgement here

Date of decision: 28.01.2022

Court: Gauhati High Court

Judges: Justices N. Kotiswar Singh and Malasri Nandi

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

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

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

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

Table of Authorities:

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

Resources:

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

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

Swapan Chakraborty v. Union of India, WP(C) 1346/2018

Read the order here

Date of the decision: 27.01.22

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh and Justice Malasri Nandi

Summary: The Petitioner was declared as a foreigner by an ex-parte order of the Foreigners’ Tribunal (FT). In its order rejecting the review application filed by the Petitioner, the FT decided the case on merits without giving the Petitioner an opportunity to place his evidence on record. The Gauhati High Court set aside the ex-parte order and remanded the case to the FT for fresh consideration of the case on merits.

Facts: The Petitioner failed to appear before the FT on account of non-receipt of the summons notice issued to him. Subsequently, the FT proceeded ex-parte against the Petitioner and passed an opinion declaring him to be a foreigner who entered India after 1971. Thereafter, the  Petitioner filed an application before the FT for setting aside the ex-parte opinion. However, the FT rejected the application filed by the Petitioner for the setting aside of the ex-parte order against him. In the same proceeding, the FT heard the matter on merits, on the basis of the documents relied upon by the Petitioner even though the Petitioner could not adduce evidence as it was not the stage for adducing evidence. Hence, the Petitioner filed the present petition before the High Court of Gauhati, challenging the ex-parte opinion passed by the FT against the Petitioner.

Holding: The Gauhati High Court allowed the petition. In its order, the Court observed that the FT passed an order on the review application filed by the Petitioner “on merits” without even allowing the Petitioner to adduce evidence to prove his nationality. The Court noted: “The learned Tribunal also heard the matter also on merit on the basis of documents which were relied upon by the petitioner, though the petitioner could not adduce evidence as it was not the stage for adducing of evidence” (paragraph 5). The High Court, while ruling that the Petitioner should be given another opportunity to prove his case, set aside the ex-parte opinion passed by the FT and remanded the case for fresh consideration on merits. 

Significance: This case is significant as it affirms the importance of deciding the case on merits only after offering the Petitioner an opportunity to place his evidence on record. In addition, this case reiterates that an ex-parte order must be set-aside in the case of non-receipt of summons.  

First, this order is correct in distinguishing between a case on merits. For example, Order 3C provides for the  procedure to be followed by an FT for setting aside an ex-parte order  that it has passed. Order 3C(2) states that after finding that the ex-parte opinion passed by it is liable to be set aside, the FT may proceed to decide the case on merits. This makes it clear that the stage of deciding the case on merits is after that of setting aside an application. This is also made clear through a reading of the general provision of Order IX, Rule 13 of the Civil Procedure Code.

State of Assam Vs. Moslem Mondal, the Full Bench of this Court had held that the Tribunal can entertain application for setting aside ex parte opinion provided the proceedee could demonstrate the existence of the “special/ exceptional circumstances” to entertain the same by way of pleadings in the application filed for setting aside the ex-parte opinion, otherwise the very purpose of enacting the Foreigners Act, 1946 and the 1964 Order would be frustrated.

According to the provision, once a court decides to set aside an ex-parte order passed against a defendant it is required to “appoint a day for proceeding with the suit”. The meaning of a case on merits is also clear from a reading of M/S. International Woolen Mills vs M/S. Standard Wool (U.K.) Limited. In this case, the Supreme Court held that a case on merits is one in which rival contentions are examined by the adjudicatory forum on the basis of the evidence adduced by them, the justness of their claims, and through the application of mind by the forum. Further, a case on merits is arrived at after a proper trial of the case and not hastily.  

Second, this an important rule since it upholds the principle of natural justice. For example, the Supreme Court held in Sangram Singh v. Election Tribunal and Bachhaj Nahar v. Nilima Mandal (paragraph 7) that natural justice forms the backbone of the Code of Civil Procedure. Thus, this describes the rationale behind Order IX, Rule 13, i.e. to provide an opportunity to the defendant to prepare their case and present it before the court on the appointed day. The High Court of Gauhati has also held that the principle of natural justice must be followed in FT cases. For example, in Nijam Uddin vs Union of India, the FT passed an opinion solely on the basis of the documents adduced by the Petitioner. The Petitioner did not get an opportunity of being cross-examined by the State’s advocate. The Gauhati High Court while remanding the case to the FT for the cross-examination of the Petitioner, held that: “a proceeding before a Foreigners Tribunal is also guided by the tenets of natural justice. We find that the petitioner has got some documents and he deserves a proper hearing for these reasons and for the ends of justice we set aside the impugned opinion.” (paragraph 6)

In summation, this is a welcome order. It clarifies the importance of deciding the case on merits after ensuring that a reasonable opportunity to be heard has been presented to the Petitioner. This decision affirms the importance of adhering to the principle of natural justice in FT proceedings. 

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 Jagriti Pandey.

Interview with Suchitra Vijayan

Suchitra Vijayan is a researcher and author of Midnight’s Borders; A People’s History of Modern India’. In this interview, she speaks on her book, Indian and international refugee policy, and the ethics of representation when documenting the stories of minority communities.

This interview was conducted over an audio call and edited for length and clarity.

Anna Kallivayalil: Starting with the book’s title, ‘Midnight’s Borders’. What was the thought behind the name of the book? Does it bear any similarity with the use of ‘midnight’ featured in Jawaharlal Nehru’s ‘A Tryst with Destiny’?

Suchitra Vijayan: It was a challenging book for us to name. We chose the title from the ‘Tryst with Destiny’ speech. We were also wary that there existed another book, ‘Midnight’s Children’. By giving the book the name ‘midnight’, we did not want to indicate that it was derivative or reflected the same politics as Nehru’s speech or the Rushdian novel.

At the same time, we decided to keep the name to genuinely understand what ‘midnight’ meant and, in some ways, change that meaning. So, yes, the title is undoubtedly derived from Nehru’s speech. But the book is positively critical of the Nehruvian nation-state that has played out into what we see today.

AK: Taking off from that, the Nehruvian (and essentially, the mainland) understanding of the nation-state is that the Partition was a one-day, open and shut case that happened on the midnight of 15th August 1947. But as you’ve pointed out in the book, people from the border contest this popular belief, proving that they are still reeling from the effects of Partition. Another misconception that you’ve pointed out in the book is the idea that India’s borders are solid, where you’ve written about how porous the borders can be, especially the Indo-Bangladesh border. Could you tell us a little bit more about this observation?

SV: The’ Partition’ was a process that started much before 1947 and continues today. There is a violent history behind the Partition. The date of Partition is decisive of when and how the story gets told. We consistently focus on the date of the Partition itself to think about a historical moment that played out differently for many people.

If you see the patterns of Partition and migration patterns, the patterns of migration start much before 1947 and continue to happen today. I don’t think we understand how those who lived during the Partition saw the sub-continent. When I spoke to people in their 80s and 90s, their idea of a border was not the idea of a border that we have today. They had a completely different view of the sub-continent. For them, the idea of a border was alien. They only understood that there would be two different homelands, a Muslim homeland with the name Pakistan and a more secular homeland named India. Thus, the idea of borders was very different from what they are today. People would not recognise the heavily militarised borders of today. The idea of citizenship and belonging have also changed dramatically.

People had also left during the Partition, hoping to come back after things had settled down. However, some people left their homes due to untenable living conditions. This also sheds light on how people thought about the Partition and its resultant borders.

Thus, Partition is very much ongoing. The protests against the CAA/NRC continued the conversation about India’s citizens. Therefore, we should be mindful of when and where we start writing the history of Partition and its stories.

AK: When the legislature continues to believe that borders are solid, and when laws are built around that assumption, what are the possible ramifications that could arise from such an assumption?

SV: The CAA/NRC undoes the secular idea of citizenship in the founding documents of the Indian Constitution. It is really interesting to think about citizenship and minority rights. For long, the language of minority rights within the legal framework has been framed as the tool to protect vulnerable, marginalised and often historically oppressed groups.

This language arrives through the Convention on the Prevention and Punishment of the Crime of Genocide intended to protect minorities from the threat of annihilation. This language used within the Indian Constitution similarly fails to address equality and liberty adequately. The framework designed to protect a group from persecution itself cannot achieve the ends of equal citizenship. 

Even when you start with ideas of citizenship, it is crucial to understand that the ‘founding fathers’, so to say, had differing ideas of citizenship. The Constituent Assembly Debates show a sense of richness in terms of the word ‘citizenship’. Invariably, all questions revolving around citizenship do not focus on the nation-state. Instead, they focus on what it means for India to be a secular republic. Thus, as it was initially conceptualised in India, citizenship is very closely linked to the idea of secularism. Extending secularism to citizenship makes the Indian Constitution a phenomenal and revolutionary Constitution.

The ‘revolutionary’ Constitution not only created a social world made of contradictions, but it very soon became the tool of suppressing dissent, deployed laws like the Armed Forces Special Powers Act (AFSPA) and Public Safety Act (PSA) in Kashmir. Laws like UAPA and sedition laws are primarily used against the country’s minority and dissenting communities.

While the Constitutional ideas of secularism informed the initial ideas of citizenship, that was not what played out on the ground even back then. The Hindu majority always had an advantage over other communities. Things that the Hindu majority got to take for granted were not things that other communities got to take for granted. Seervai, in his book, ‘Partition of India: Legend and Reality, talks about how Jinnah wanted parity, not Pakistan, first. The idea of parity was not enshrined in the Constitution, even if it enshrined secularism. Implementation issues aside, the Constitution had a secular notion of citizenship in its original form. Citizenship cannot be ethno-nationalist citizenship. The Constitution did not envisage citizenship to be of an ethno-nationalist model. The ethno-nationalist model mandates citizenship to be linked to a shared ethnic identity, or in the case of India, religious identity. Hindu religion is seen as the basis of the republic, making it a Hindu nation and shared political, cultural, historical or even legal histories of belonging no longer matter. Here, Nationalism is inherited through the ancestry of being Hindu.

There is also a very interesting question posed to Nehru, where he was asked, ‘who becomes an Indian citizen?’ Nehru responded that whoever wants to be an Indian citizen can become an Indian citizen. Anybody who wants to belong to this land can become a citizen. This statement reflects a secular idea of citizenship and is very different from the modern idea of citizenship today. The secular model of citizenship never translated on the ground, but it was still theoretically an ideal approach to citizenship. The CAA/NRC and a series of other laws are ways in which the citizenship model has moved from the ideal secular model to the ethno-nationalist model.

It is now unabashedly clear who the state thinks are the real citizens of India. To be a citizen, you need to have specific ethno-nationalist characteristics. One of the ethno-nationalist characteristics is being a Hindu. This is a significant shift from the secularist idea of citizenship to the current ethno-nationalist model.

AK: I’d like to mention here that you had founded the Resettlement Aid Project, Cairo and worked with the project between 2008-2009. As someone who has worked with refugees previously, could you shed some light on Indian and international refugee and statelessness policy as it stands today?

SV: I worked as a legal director with the Resettlement Aid Project, and I worked there between 2008-2009. One of the fundamental things that became clear to me working there was that the refugee policies, the rules, the systems we have in place are deeply flawed. The current refugee laws and procedures were created in response to the Holocaust and World War II crises. Thus, they responded very specifically to a Europeanized Jewish population who had to be freed from near-extinction. So even back then, these laws were profoundly flawed and insufficient to respond to the crisis after the Holocaust. A lot of it felt like a band-aid remedy.

Over the years, we developed systems and institutions. But all these institutions were based on the fundamental belief that people fleeing violence or persecution have to provide footnotes and citations for their oppression. When we were preparing resettlement cases and refugee testimonies, the authorities only wanted to know about the refugee’s life and what forced them to leave. Even preparing that document where we had to tell their story, the footnotes and citations of their oppression that led them to leave, was a profoundly violent and inhuman process.

The violence that leads people to flee is often seen within a context that does not consider history’s deceit. In reality, many refugee crises happen ​because of the Cold War​ politics and posturing, imperial interventions, the ongoing geopolitics of the world. Yet, these crises are not recognised in refugee testimonies. Instead, we outsource these great acts of violence to the refugee’s responsibility. The person fleeing violence has to justify why they are fleeing violence.

Eventually, all this goes back to the question of citizenship and the erosion of citizenship rights within the idea of the nation-state. If you look at the UN Human Rights Charter, it says that every person has the right to a state. This is increasingly flawed because the state then becomes foundational or the source of your freedom. By this understanding, we derive our rights from a contract with the state, and not because ​freedom and dignity ​are inalienable. This is a fundamental flaw with how rights are constructed within the UN​ charter and various rights documents.

Another significant flaw in the Indian and international refugee policy is that it does not deal with the impending climate crisis. Climate change is going to fundamentally remake the borders of the world. We already have at least 20 million climate refugees. The laws as they stand today do not even begin to address those crises. Hence, it is a deeply flawed system. But these flaws come from structural and racial inequalities of the world, and we cannot divorce these structural flaws from the more significant crises.

AK: Coming back to the book, I found it very interesting that you had added pictures along with the writing. There’s a part in the introduction where you’ve explained why you decided to add pictures with the book, do you think the pictures enhance the particular stories in a way?

SV: When I started the book in 2012-2013, it began as a photography project. It was to be a predominantly visual project. That became impossible early on, and I realised that the visual medium would not be enough. I had to come up with a way to tell the stories as I saw them. The book in front of you results from someone trying to make sense of so many things. But the book is also lacking certain things that we could not add. For example, there are no maps in the book. Almost any community I spoke to had their version of the maps, but I could not include these maps in the book for legal reasons. Another critique I’ve heard from people is that we should have included the state maps. The maps that we have included are all pre-independence maps.

For many of these communities, the maps dictated by the state are inherently violent because they do not see themselves reflected in these maps. This is true of communities in Jammu and Kashmir, Manipur, Nagaland, etc. In all these communities, the Indian nation-state depicts itself in its maps is not the way they see themselves.

We also had to remove​ some of the images from the book towards its end because they had the identifying features of the people photographed.

Further, the book was finalised before Ayodhya, the NRC, and the CAA. After these events, many of the people I interviewed no longer wanted to be a part of the book. There is no Gujarat chapter because people did not want to speak. Thus, the book in front of you is not complete. When you claim to write a book about people in the communities, and if they no longer want to be in the book, you should not put them in the book. It is not for us to decide whose stories are included in the book.

The book in front of you with some images, some maps, some poetry, is a reflection of the present. It is a reflection of the world we are in today. The book is not just a record of the stories told; it is also a testimony of untold stories that we couldn’t tell.

AK: Adding to that, in the introduction, you talk about the ethics of representation. You didn’t intend the book to “give voice to the voiceless”. The ethics of representation is a very sticky subject, and there’s a very fine line of difference between telling their stories and appropriating their stories, violating their privacy.

SV: It was not easy writing this book. We need to think about who gets to write about India and its people. I think it has always been the same people who tell the stories of India. It’s a particular kind of upper caste and upper-class men and women who continue to write books and tell the stories of people in India. This group of authors all belong to the same community, and their view of India is very similar. It is the same people who tell their idea of India, over and over again. Even with the growing Dalit representation, it is nowhere close to how the stories are told.

When I started writing the book, I had to be very clear about the privileges I had and where I was placed in the pool of people who get to tell these stories. For example, the fact that someone has a camera creates a certain unbridgeable distance between you and the person being photographed. So the very fact that I can do this puts me in a place of immense privilege.

A few years ago, there was not even this public acknowledgement of privilege. Now, admission of privilege is very performative. Acknowledging privilege does not improve the material realities of people on the ground. Privilege is something that all authors and persons who document others’ stories still need to be sensitive about, even if it is acknowledged.

There are specific improvements in the sense of who gets to tell people’s stories. A decade ago, I would not have been able to write this book. I did not come from a place of privilege, and I am, in some ways, an outsider. I very early on found out what cultural capital meant. If someone like me had to struggle to get the book published, imagine how hard it would be for someone who doesn’t have any of these privileges. The beginning is always acknowledging privilege. There is a considerable disparity between the actual realities on the ground and the social realities as we see written in books of India. Acknowledging privilege means acknowledging your complicity in everything you claim to fight through the book.

I was also very candid about the mistakes I made in the book. I am not infallible. It was essential to have a collaborative form of writing, which meant that I had to send back transcripts to the people I interviewed take out the interviews of people who no longer wished to be in the book. I was also particular about quoting the entire piece of what was said by the interviewee. Therefore, my contribution to the book was just analytical of these pieces of conversation. Another thing I was very particular about was being unabashedly critical of those in power, the structures that have led to such conditions. I would name the beast.

I wanted the book to ask some fundamental questions in a very public way. The ethics of representation is very murky. Power and privilege are always corrupt. How does that power then reflect when you write? A lot of that is introspection, the ability to say when you were wrong, admit to the mistakes made, and correct those mistakes.

AK: Reading your book had opened my eyes to so much that goes unreported in the mainstream media. Would you recommend young people to travel to the borders to learn more about their country or are there other ways in which we can be more aware?

SV: People need to start being more observant of their surroundings. I think that’s a crucial thing that we’ve lost over the years. We are not looking at the real world around us. To young people, I’d say speak to the people around you and make sense of what’s happening. That itself will take you a lot of time. I had spent a significant amount of time reading and trying to understand things around me before deciding that travelling to the border was necessary.

We also need to learn to hold the people in power accountable. It could be the government or any other source of injustice. Finally, be curious about the world in as many ways as possible. Engage with people even if they have a different viewpoint. After all this, we can even begin to start answering questions by travelling to the borders.

Travelling to the borders is a challenging and dangerous task; I find it hard to believe how I came back in one piece. However, travelling the way I did is not the only way to understand more. I think there are other ways, starting in our backyards.

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

Read the judgment here

Date of the decision: 08.04.21

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh  and Justice Soumitra Saikia 

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

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

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

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

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

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

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

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

Resources:

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

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

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

Read the judgment here

Date of decision: 04.01.2022

Court: High Court of Gauhati

Judges: Justice N Kotiswar Singh and Justice Malasari Nandi

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

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

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

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

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

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

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

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

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

State v. Bikram Singha, FT Case no. 129/2017

Read the order here

Date of the decision: 10.09.21

Court: Foreigners’ Tribunal-II, Karimganj, Assam

Presiding Tribunal Member: Mr. Sishir Dey 

Summary: In a decision on the determination of the citizenship of a person, the Foreigners’ Tribunal recognised the statutory right of citizenship by birth for persons born in India prior to 1.07.1987  under Section 3(1)(a) of the Citizenship Act, 1955. Further, the Tribunal ruled that it could rely on a common Application Receipt Number (ARN) and joint inclusion in the Final National Register of Citizens (NRC), published on 31.08.2019, for the purpose of establishing linkage between the Opposite Party (OP) and their parents, as the NRC is ‘final’ and thus can be used as evidence to corroborate citizenship claims. 

Facts: The Election Officer marked the status of Bikram Singha (“Opposite Party”) as a ‘doubtful’ voter. This was done after the Election Officer suspected the citizenship of the Opposite Party (OP) whose name was in the electoral roll of 1997. Electoral officers are authorized to flag people listed on voter rolls, supposedly without adequate Indian documentation, as “doubtful” voters. This process started on 10th December 1997, when the Election Commission under the advice of the Asom Gana Parishad (AGP) government marked 3,70,000 voters as “doubtful”. A doubtful voter cannot vote because their Indian citizenship is under suspicion. As a result, D-voters are disenfranchised by the government on account of their alleged lack of proper citizenship credentials. 

The Election Officer alleged that the OP had not produced any documents to the Local Verification Officer, and referred the case to the Superintendent of Police. Subsequently, the case was referred to the Foreigners’ Tribunal, which adjudicated upon whether the OP was a foreigner or not. To prove his citizenship, the OP produced as many as twelve documents and two witnesses. It was his case that he was born on 06.01.1978 at Jamirala village. In effect, he argued that he was a citizen by birth under Section 3(1)(a) as he was born in India before 01.07.1987. In addition, he contended that his ancestors and family members had been permanent residents of Jamirala, and his father’s name was enlisted in the Voters List of 1970. His father even served the Indian Air Force for 29 years.

In response, the State contended that Section 3 was not applicable, as only Section 6A applied in Assam. In other words, since the OP had not submitted a document prior to 01.01.1966, his parents may have been ‘foreigners’ who migrated to India between 01.01.1966 and 24.03.1971. Further, the OP had relied on his name being included in the NRC to corroborate his claim of linkage with his parents who were born and ordinarily resident in Assam prior to 25.03.1971. The State expressed doubt about the same, specifically “about the finality of Assam NRC published online on 31 August 2019…Submitted that Exhibit – 6 may not be considered as a legally valid document” (paragraph 10). The OP responded that the finality or the legality of the NRC could not be doubted, as it had been published as per the direction and monitoring of the Supreme Court of India. 

Holding: The Foreigners’ Tribunal (FT) (correctly) affirmed the OP’s citizenship under Section 3, noting that Section 6A deals with “persons coming to Assam from ‘Specified Territory’. Their children are not covered by the provisions of section 6A but are covered within the ambit of Section 3 of the Citizenship Act 1955. Thus Section 3 of the Citizenship Act is applicable in Assam as rest of India unless and until it’s repealed, amended or struck down, but nothing of these has happened yet” (paragraph 14). Thus, it may be presumed that the OP was born in India prior to 01-07-1987. Therefore OP is a citizen of India by birth in terms of Section 3(1)(a)

The FT noted that the OP proved his linkage with the persons he claimed to be his parents. To prove his father’s citizenship, the OP submitted his father’s Discharge Certificate Book from the Indian Air Force (Exhibit 3) that showed that the OP’s father had served the Indian Air Force for 29 years. This discharge book also contained the name of the OP, his grandfather, his mother and his siblings along with their relation to the OP’s father. The FT took note of the Discharge Certificate Book and the Pension Payment Order (Exhibit 4) in the name of the OP’s father and held that these two documents prove that the OP’s father served in the IAF. If further held that the Indian Air Force must have verified the citizenship and antecedents of the OP’s father before inducting him (paragraph 12).  The OP also submitted digital evidence of proof that he along with his parents jointly applied under the same Application Receipt Number (ARN) for inclusion in the NRC, and after several rounds of scrutiny, they had all been included in the Final NRC published on 31.08.2019. Although the name of the OP was in the final NRC, the FT noted that it could only be taken to be proof of his linkage with his parents, but not his citizenship. This is because the Standard Operating Procedures state that a D-voter is not eligible to be included in the NRC unless the FT rules that the voter is an Indian citizen. But, the name of the OP was included in the final draft of the NRC despite being identified as a ‘D’ voter and without a clearance from an FT. The FT responded to this anomaly by observing that the “NRC authority might not have been able to trace the case filed against the OP and his inclusion may be validated only by an FT order in his favor” (paragraph 12).

Lastly, the FT addressed the legal validity and finality of the Assam NRC. It was observed that the Final NRC published on 31.08.2019 was prepared as per the Citizenship Act, 1955 and the Citizenship Rules, 2003. Further, it was prepared under the order, directions and supervision of the Supreme Court. Hence, the FT ruled that “there is no doubt that this NRC Assam published in 2019 is nothing but Final NRC” (paragraph 13). The FT also affirmed the NRC’s evidentiary value by observing that the names of the parents of the OP, as persons in the list “may be taken as the conclusive proof of their Indian Citizenship” (paragraph 12). In other words, the FT ruled that the NRC is a ‘final’ document that could be taken as conclusive proof of a person’s Indian citizenship unless a reference against them is pending before an FT. In cases where a person’s name appears in the NRC when a reference against them is pending before an FT, the decision of the FT on that person’s nationality will prevail over the NRC.

Significance: This order is significant because it correctly considers the final draft of the NRC as a ‘final’ document that can be relied upon to prove Indian citizenship. Since the publication of the NRC on 31.08.2019, there has been a lack of clarity on the status of the document. The NRC process has been in a logjam since the government has not yet issued the reverification slips to file appeals by those who have been excluded from the NRC. After the publication of the NRC, the BJP harped on the ‘incorrectness’ of the document. Before the 2021 Assembly elections in Assam, the Bharatiya Janata Party in its manifesto promised the ‘correction’ of the NRC. The incumbent Chief Minister of Assam, Himanta Biswa Sarma called the NRC an “incorrect document. This is because out of the 19 lakh people excluded from this final draft, 12 lakh persons were Hindus. In May 2021, the Coordinator of Assam NRC Hitesh Dev Sarma filed a petition before the Supreme Court for the re-verification of the final draft of the NRC. 

This, however, is not the correct legal position. It is clear that the NRC, published on 31.08.2019, is the final document. First, after the publication of the final NRC, the Registrar of Citizenship Registration along with the State Coordinator released an official press statement on 31.08.2019 declaring that the draft of the NRC published on 31.08.2019 was the final NRC. According to Rule 3 of the Citizenship Rules, 2003, the authority to “establish and maintain”  the National Register of Citizens, Assam lies exclusively with the Registrar General of India (RGI). Second, the Ministry of External Affairs released a press statement on 31.08.2019, officially declaring the publication of the final draft of the NRC. Following is an extract from the press release:

1. Yesterday, the office of the State Coordinator, NRC Assam released a press statement on the publication of final NRC as on 31st August 2019. 

2. Since then, there have been some commentaries in sections of a foreign media about aspects of the final NRC which are incorrect. 

8. Exclusion from the NRC has no implication on the rights of an individual resident in Assam. For those who are not in the final list will not be detained and will continue to enjoy all the rights as before till they have exhausted all the remedies available under the law. It does not make the excluded person “Stateless”. It also does not make him or her “a Foreigner”, within the legal meaning of the term. They will not be deprived of any rights or entitlements which they have enjoyed before.”

Third, a bare reading of the orders of the Supreme Court in Assam Public Works v. Union of India clearly evinces that the NRC is final. This makes it clear that the NRC is the ‘final’ document. 

In Sufia Khatun v. Union of India, the Gauhati High Court addressed a contention that may seem to have raised doubts about the finality of the NRC. The Court noted that: “It was urged by the learned counsel for the petitioner that the names of the siblings and children of the petitioner have appeared in the Final NRC. In this regard, we are informed that the Final NRC has not yet been accepted and/or notified by the competent authority i.e. the Registrar General of Citizenship Register” (paragraph 14). In this paragraph, however, the Court merely discussed the contention of the state in response to the reliance of the petitioner on the NRC. It did not render its own judgment on the finality of the NRC. Thus, this decision cannot be relied upon to substantiate the argument that the NRC is not final. 

Although the FT order is well-reasoned, it is arguable whether the FT has the power to rule on those questions of law that are not sought to be answered before it. Order 2 read with Order 3(15) of the Foreigners’ Tribunal Order, 1946 states that the final order of the FT must be a concise statement of its opinion on the citizenship of the party before it. Further, in several judgments such as Golapi Begum v. UOI, the Gauhati High Court held that in their final orders, the FTs are supposed to answer only those questions that have been referred to it and not assume jurisdiction to answer other questions. A reading of the order in Bikram Singha suggests that the Karimganj FT was indeed supposed to answer the question of the finality of the NRC in order to fully appreciate the documentary evidence produced by the OP. One of the documents that the OP used to substantiate his claims was the NRC list and this was opposed by the state advocate. The state advocate argued that the NRC could not be considered as evidence as it was neither a final nor a legally valid document. Hence, the FT commented upon the finality of the NRC while considering the NRC as a piece of evidence that proved the relation between the OP and his parents.

In Bikram Singha’s case the Karimganj FT was also faced with the question of the legal admissibility of the NRC. The state advocate argued that the NRC list could not be considered a legally valid document (paragraph 10). This contention is not valid. It does not have a legal basis. In Sanowara Khatun v. UOI, the Gauhati High Court held that because the NRC was not a result of a quasi-judicial process, the OP could not contend that the names of her close family members in the NRC constitute material evidence in deciding her review application (paragraph 9). Thus, the High Court did not consider the final draft of the NRC as material evidence while deciding Sanowara’s review application. At the same time, the Court did not hold that the FTs could not take into account the NRC as material evidence when adjudicating upon citizenship. Hence, this decision cannot be relied upon to conclude that the FTs cannot consider the final NRC as material evidence. Another contention against the reliance on the NRC as evidence was raised by the state advocate in the cases of Sufia Khatun v. UOI and Golokjan Bibi v. UOI. It was contended that the NRC cannot be used as evidence as it has not been notified yet in the official gazette. This is incorrect. In accordance with Section 74 of the Indian Evidence Act, the NRC is a public document and thus the lack of notification in the official gazette does not affect its evidentiary value. 

Apart from the discussion on the finality and the legal admissibility of the NRC, the FT determined another legal issue. It correctly held that Section 3(1)(a) of the Citizenship Act, 1955 applies with equal force to determine the citizenship of the residents of Assam. This has been expressly stated in Section 6A(7), which clarifies that Section 6A does not apply to a person who acquired their citizenship before the commencement of the Citizenship (Amendment) Act, 1985. This means that if a person were born in India or in the state of Assam before 1.07.1987, then such a person would be a citizen by birth. Thus, such a person need not prove their linkage to their parents or grandparents. That the government is not acquainted with this legal position is alarming. 

Table of Authorities:

  1. Sona Khan v. Union Of India, WP(C)/1293/2021.
  2. Golapi Begum vs The Union Of India, WP(C)/2434/2020.
  3. Sanowara Khatun v. The Union Of India, Review. Pet. 16/2020.
  4. Sufia Khatun v. Union of India, Review.Pet. 22/2020.
  5. Orders of the Supreme Court in Assam Public Works v. Union of India, WP(C)/274/2009.

Resources:

  1. Nazimuddin Siddique, ‘Discourse of Doubt’ , Vol. 54, Issue No. 10, Economic and Political Weekly (09 March 2019 ) https://www.epw.in/journal/2019/10/perspectives/discourse-doubt.html?0=ip_login_no_cache%3Da85d78f59750a17dd6c889f84f820582 accessed on 28 September 2021.
  2. M. Mohsin Alam Bhat, ‘Twilight citizenship’, https://www.india-seminar.com/2020/729/729_m_mohsin_alam_bhat.htm accessed on 28 September 2021.
  3. Ipsita Chakravarty, ‘Doubtful or dubious: Who will count the D voters of Assam?’, Scroll (21 February 2016) https://scroll.in/article/803173/foreigners-vs-citizens-who-will-count-the-d-voters-of-assam accessed on 28 September 2021.
  4. Shuchi Purohit, ‘Foreigners Tribunals,’ Parichay- The Blog (10 July 2021) https://parichayblog.org/2021/07/10/foreigners-tribunal/ accessed on 28 September 2021.
  5. Office of the State Coordinator of National Registration (NRC), Assam, Government of Assam http://nrcassam.nic.in/index-M.html.
  6. Sangeeta Barooah Pisharoty, ‘Citizenship and Assam: An Explainer on the Legal Questions That Still Loom Large’, The Wire (25 November 2019) https://thewire.in/rights/citizenship-and-assam-the-legal-questions-that-still-loom-large accessed on 28 September 2021.
  7. Farah Naqvi, ‘The Citizenship Amendment Bill and NRC Will Together Destroy Our Country’, The Wire (12 December 2019) https://thewire.in/communalism/nrc-citizenship-amendment-bill-hindu-muslim accessed on 28 September 2021.
  8. ‘Assam excludes over 19 lakh names from NRC list, BJP unhappy over ‘erroneous’ count,’ The Indian Express (31 August 2019) https://indianexpress.com/article/india/assam-nrc-final-list-bjp-congress-bangladesh-illegal-migration-5954490/ accessed on 28 September 2021.
  9. Lok Sabha Unstarred Question No.1264, Lok Sabha https://www.mha.gov.in/MHA1/Par2017/pdfs/par2021-pdfs/LS-09022021/1264.pdf 
  10. Tora Agarwala, ‘BJP promises ‘corrected NRC’ in Assam manifesto, silent on CAA’, The Indian Express (24 March 2021) https://indianexpress.com/elections/assam-assembly-elections-bjp-manifesto-7240987/ accessed on 28 September 2021.
  11. ‘Assam NRC authority seeks re-verification of citizens’ list, The Hindu (13 May 2021) https://www.thehindu.com/news/national/other-states/assam-nrc-authority-seeks-re-verification-of-citizens-list/article34548812.ece accessed on 28 September 2021.

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

Md. Misher Ali @ Meser Ali v. Union of India, CA/1058-1059

Read the judgement here.

Date: 24.03.2021

Court: Supreme Court of India

Judges: Justice D.Y. Chandrachud, Justice M.R. Shah and Justice Sanjay Khanna

Summary: The Appellant had been declared an illegal migrant through an ex parte order of the Foreigners’ Tribunal without having been duly served the notice of the proceedings. The Supreme Court set aside the Tribunal’s order and the Gauhati High Court judgment dismissing the Petitioner’s appeal and ordered the Tribunal to constitute fresh proceedings. 

Facts: A reference was made by the Sivasagar Superintendent of Police (Border) to the Foreigners’ Tribunal claiming that the Appellant was an illegal migrant. The process server served notice at his last known place of residence in Sivasagar. When the proceedee failed to appear before the Tribunal, an ex parte order was filed on the 22nd of March, 2018, declaring him to be a foreigner. Aggrieved by the order, the Petitioner approached the Gauhati High Court under Article 226. The Court dismissed the petition on the grounds that the notice had been properly served and failed to discharge the burden to prove his citizenship. The Appellant then filed an appeal before the Supreme Court and argued that he failed to appear as the notice was not duly served at his permanent place of residence at Dhubri district, even when the authorities had knowledge of the same.

The two issues before the court were: 

  1. Whether the notice had been properly served to the proceedee; 
  2. Whether the Appellant had failed to avail the opportunity under Paragraph 3A of the Foreigners (Tribunals) Order of 1964 which provides the procedee with thirty days to file an appeal to set aside an ex parte order. 

Holding: The Court held that the process server had failed to meet the requirements of paragraph 3(5)(f) of the Foreigners (Tribunals) Order 1964 which deals with a situation where a “proceedee” has changed the place of residence or place of work without intimation to the investigating agency. The Court noted that the Tribunal’s Order and the police authorities had taken note of the fact that the permanent address of the Appellant had shifted from Sivasagar to Dhubri. As the authorities were aware of the appellant’s permanent place of residence and still made no effort to serve the appellant at that address, the Court held that the order was not duly served to the appellant. 

Consequently, the Court noted that the remedy under paragraph 3A would not be attracted in this instance since it requires proceedee to present cause for non-appearance where notice was duly served. The Court set aside both the order of the Tribunal and the judgment of the Gauhati High Court. It also ordered the release of the Appellant who had been in Custody for nearly two years and asked that he appear before the Tribunal for the fresh proceedings. The Tribunal was instructed to “allow the appellant a sufficient opportunity, consistent with the principles of natural justice, to file his response and produce documentary and other material.” (paragraph 13)

Significance: The non-service of notice upon the proceedees leading to ex parte is an important issue of concern with respect to the functioning of the Foreign Tribunals. The judgment is significant as it clarifies that the Tribunals cannot pass ex parte orders where the concerned authorities have failed to make the person aware of and duly serve the notice when their proper address is within their  knowledge.

As the burden to prove their citizenship lies on the accused in the Court/Tribunal, their non-appearance even for lack of understanding of the notice issued or in the absence of any notice has led to their being declared as “foreigner”. In Rahima Khatun v Union of India, the Gauhati High Court observed that any questions about a person’s citizenship should be decided upon after hearing the person concerned instead of passing an ex-parte order. However, as many as 63,959 persons have been declared foreigners through ex parte proceedings in Assam since 2019 highlighting the problematic conduct of the Tribunals as in the present case. 

Any challenge to the tribunal’s orders must lie in the form of a writ petition where the higher courts are only restricted to determining the legality of the tribunal’s order. This leads to the constitution of fresh proceedings in the Tribunal when the court decides against the Tribunal, unnecessarily lengthening and complicating the procedure for the appellants who are usually poor and marginalised. The Appellant had to spend almost two years in detention due to the Tribunal’s illegal order. 

However, the Supreme Court did not impose any bail amount or a local surety on the Appellant which had become a persistent issue in matters where the Court set aside the Tribunal’s orders. (see Kabir Uddin v. Union of India and Samsul Hoque v. Union of India) Though the aim of the court is to do justice and provide relief to the Petitioners in such matters, the imposition of a bail amount or surety is an additional burden on the petitioners who are usually poor and from marginalised communities. 

Table of Authorities

  1. Kabir Uddin v. Union of India 
  2. Samsul Hoque v. Union of India
  3. Rahima Khatun v Union of India

Resources

  1. Parichay Team, Case Note: Md. Misher Ali v. Union of India, Parichay Blog, May 3, 2021
  2. Sanchita Kadam, The Highs & Lows of Foreigners Tribunals that affects Justice Delivery: Assam, Sabrang, November 5, 2019
  3. Prashant Bhushan, Conduct of Foreigner’s Tribunal is Assam is questionable, The Indian Express, September 20, 2019
  4. The Wire Staff, Assam: Since 1985, Ex-Parte Tribunal Orders Have Declared Almost 64,000 People as Foreigners, The Wire, July 2, 2019
  5. Designed to Exclude, Amnesty International, 2019
  6. Sagar, How Assam’s Foreigners Tribunals, aided by the high court, function like kangaroo courts and persecute its minorities, The Caravan, November 6, 2019

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 Dewangi Sharma, and an earlier version of the note was prepared by Sitamsini Cherukumalli.

In Re State of Assam, PIL (Suo Motu) No. 4 of 2020

Read the orders here (11.05.2021) and here (19.05.2021).

Date of the decision: 11.05.21 and 19.05.21. 

Court: Gauhati High Court

Judges: Chief Justice Sudhanshu Dhulia and Justice Manash Ranjan Pathak

Summary: The Gauhati High Court sought details of declared ‘foreigner’ mothers whose children had been detained inside the jails along with them. In a subsequent order, the High Court directed for the list of such female inmates to be forwarded to the High Powered Committee for them to examine whether they were eligible to be released or not.

Facts: Reviving its suo motu petition on the management of the second wave of COVID-19, the Gauhati High Court sought details from the jail authorities about the children residing in the different jails of Assam. This development came as a consequence of the Court taking notice of children among the list of total inmates. The jail authorities informed the High Court that these children, all aged less than six years old, were not juveniles in conflict with the law but were lodged in the jails with their mothers who have been declared as ‘foreigners’. As per the Jail Manual, children below the age of six are allowed to stay with their mothers who are in jail.

Holding: In the order dated 11.05.21, the High Court directed the State Government to furnish the details of all female inmates who have been declared as ‘foreigners’ and are living with their children in jail, and the period for which they have been detained. In addition, the Court asked the Assam Government to give details of all such persons who are eligible to be released from jails in view of the COVID-19 pandemic as per the guidelines laid down by the High Court as well as the Supreme Court. The guidelines state that the detenues who have completed two years in detention are entitled to be released subject to the fulfillment of certain conditions, such as on a personal bond of Rs. 5000 with a like amount of one surety.

In a subsequent order dated 19.05.2021, the High Court directed that the list of such female inmates should be forwarded “to the said High Powered Committee which shall look into this aspect and examine whether any of the inmates who are in the list can be released under these special circumstances of COVID-19 pandemic (2nd wave)” (paragraph 5). Thus, the High Court directed for this list to be placed before the High Powered Committee to decide which female inmates are eligible for release. 

Significance: This order is significant because it acknowledges that children should not be in detention centers. Not only the international law but also Indian statutes provide for the protection of children whose parents are in detention. The children of ‘foreigner’ mothers who are widowed or whose relatives refuse to look after them usually spend their formative years with their mothers in detention. Some of them even attain majority in detention. The lack of counseling and age-appropriate diet takes away a healthy environment important for children to grow to their full potential. The Supreme Court has held that the right to life is secured only when a human being is assured of all facilities to develop himself and is freed from restrictions that inhibit his growth. During the time spent in the detention centers, they are deprived of not only this fundamental right to liberty and life, but also the right to free and compulsory education, right to food, right to health, the right against prolonged and arbitrary detention, the right to be heard and the right to care and protection. In light of COVID-19, the Supreme Court, in a previous decision, had noted that “there is a serious concern about the spread of Covid­19 in overcrowded prisons where there is lack of proper sanitation, hygiene and medical facilities” (paragraph 5). The impact of these conditions put particularly children at a greater risk of contracting COVID-19 in jails. However, while the detention of children with their parents in prisons is contrary to international human rights standards, the separation from their parents is unjust as well. Therefore, releasing these ‘foreigner’ mothers along with their children is a welcome step.

The order, however, falters in overlooking the presence of children above the age of 6 years lodged with their detained mothers. The Jail Manual has provisions against children above 6 years being kept inside jails. In practice, however, children above the age of 6 are allowed to stay with their parents. If the child above 6 years is female, she is kept with the mother and if the child above 6 years is a male, then he is kept with the father. The State Home Minister maintains that there are 20 children in the 0-14 age group and 2 children above 14 years of age. The distress of children above the age of 6 years is similar, but unresolvable due to a lack of legal provisions accounting for them. 

A point to be noted is that instead of ordering the release of all children, the present order directed the High Powered Committee to determine the same on a case-to-case basis. The rationale of the Committee behind deciding the eligibility for release on a case-to-case basis is flawed and perpetuates the carceral logic adopted by detention centers. The issue with this is evident in the fact that in an order dated 01.06.21, only seven women with children were found to be eligible for release by the High Powered Committee.

The new detention center in Matia in Assam, which is near completion, also seemingly imagines children as being part of the detention center. The center is being built exclusively for ‘declared foreigners’ and its functioning will be governed by the 2019 Model Detention Center Manual released by the Central Government. Although the manual is not entirely public, parts of it available suggest that the detention center may have educational facilities and creches for children in detention centers. While the manual promises special attention towards children, studies show that detention has a profound and negative impact on the health and development of children regardless of the conditions in which they are held. It remains to be seen whether these orders will have any impact on excluding children from the new detention center.

Table of Authorities:

  1. In Re: Contagion Of Covid 19 Virus in Prisons, Suo Motu W.P.(C) No.1/2020.
  1. Samsul Hoque v. Union of India, Case No. W.P.(C)/6056/2019.

Resources:

  1. Nupur Thapliyal, COVID: Gauhati HC Seeks Details Of Female Foreigners Staying In Jails With Children Below 6 Years, Eligible Persons To Be Released From Jails, LiveLaw, 16th May 2021.
  2. Gauhati HC seeks info on female declared foreigners and their children in Detention Camps, Sabrang, 18th May 2021.
  3. Suchita Shukla, Gau HC | Court directs High Powered Committee to consider temporary release of female jail inmates with children, SCCOnline, 25th May 2021.
  4. Meera Emmanuel, Gauhati High Court asks HPC to consider interim release of women prisoners declared “foreigners” with children aged less than 6, Bar and Bench, 25th May 2021.
  5. Excerpt: Rights of Child Detainees, Parichay, 20th November, 2020.
  6. HAQ: Center for Child Rights & the Action North-east Trust (The Ant), Fracturing Childhoods, Wounding Children’s Futures Impacts of the NRC on Children in Assam, April 2020.
  7. Sumir Karmakar, Children of foreigners languishing in Assam jails, Deccan Herald, 20th February, 2019.
  8. Harsh Mander, The dark side of humanity and legality: A glimpse inside Assam’s detention centers for ‘foreigners’, Scroll.in, 26th June, 2018.
  9. Report on NHRC Mission to Assam’s Detention Centers from 22 to 24 January, 2018.

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 Khushi Singh.