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The Parichay Blog and Newsletter Team

Interview with Suchitra Vijayan

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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

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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

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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

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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

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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

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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.

Jasmin Begum @Jesminara Begum v. Union of India, SLP Civil No. 1564/2020

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Read the judgement here

Date of decision: 25.09.2019

Court: Gauhati High Court

Judges: Justice Manojit Bhuyan and Justice Ajit Borthakur

Summary: The Gauhati High Court upheld the order of a Foreigners Tribunal that declared the Petitioner as a foreigner. The High Court considered the evidence placed on record by the Petitioner to be insufficient for proving her citizenship, stating that there were no errors apparent on the face of record that warranted interference with the Foreigners Tribunal order.

Facts: The Foreigners’ Tribunal, in its order dated 25.01.2019, declared the Petitioner to be a foreigner, having illegally entered into India (Assam) after 25.03.1971. In accordance with Section 9 of the Foreigners Act, 1946, the Petitioner presented 11 documents as evidence before the Foreigners’ Tribunal to prove that she was not a foreigner. Section 9 of the Foreigners Act places the burden of proof upon the person to prove that they are not a foreigner. Apart from the documents, the Petitioner also presented two witnesses: Mustafa Saiful Islam, the projected uncle of the Petitioner and Abdul Latif, the projected husband of the Petitioner.  

First, the High Court found the documentary evidence to be insufficient to prove the Petitioner’s linkage to her projected parents. Although the names of the alleged parents appeared in the voter lists of 1965, 1970, 1997 and 2018 from different villages, no voter lists were produced that reflected the name of the Petitioner to show the relationship with her projected parents. The mother’s name in the voter’s lists had discrepancies, which is the reason that the court disbelieved the Petitioner’s claim that the projected mother was her mother. Further, the voter’s lists only had the names of the projected parents, and not of the Petitioner herself. Thus, the lists were considered to be inadequate to establish the Petitioner’s linkage to her parents.

Second, the HC did not accept the Jamabandi certificate on the ground that the same did not stand to be proved by the means of any related sale deed showing that the plot of land in question, which the Petitioner claimed to have inherited, had been purchased by her projected father on any date prior to the cut-off date of 25.03.1971. So, the Jamabandi document was considered to be not relevant to establish lineage to a predecessor prior to 25.03.1971. The handwritten Jamabandi was also not held to be relevant as it could not relate to the projected father or mother of the Petitioner.

Third, the HC also held that certain documents were inadmissible, namely certificates issued by the school and the village government, because the authors of the said certificates had not been examined to prove the contents thereof. 

Fourth, it held that the oral evidence of the two witnesses could not be considered as admissible evidence since, “in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship” (page 5). The HC dismissed the oral testimony as it could not be a proof of citizenship without the support of documentary evidence. Thus, the HC upheld the Tribunal’s order, finding that the Petitioner had failed to discharge her burden of proof under Section 9. 

The HC also did not review the Tribunal’s finding of facts since “the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal” (page 5). In other words, it held that while issuing a writ of certiorari, courts do not review findings of facts, even if they are erroneous. 

Holding: As per the HC, there was no error apparent on the face of record to warrant interference with the FT order. According to the Court, “No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all” (page 5).

The Petitioner filed a Special Leave Petition (SLP) before the Supreme Court, challenging the order passed by the Gauhati High Court. The SC allowed the Petitioner to withdraw the SLP and file a review petition before the Gauhati High Court. It also permitted her to approach the Supreme Court, again, in case the review petition fails. 

Significance: The rejection of the oral and documentary evidence by the Gauhati HC was improper. The court failed to consider that the Petitioner had presented admissible and sufficient evidence to prove her linkage to one of her parents.   

First, the Gauhati HC failed to appreciate some of the evidence on record. The Petitioner had presented documents to establish linkage with both her parents. As per the Court, the evidence had failed to establish the Petitioner’s linkage to her mother. However, the Court overlooked the fact that some of the evidence was adequate to establish a linkage to her father. Since her father’s name was present in the voter’s lists of 1965, 1970, the Petitioner was the descendant of a person living in Assam prior to 1971. Thus, establishing linkage to her father should have been sufficient to prove her citizenship under Section 3(b) of the Citizenship Act, 1955. While the Petitioner could not establish linkage with her mother since the latter’s name had discrepancies in the voter’s lists, there were no such discrepancies in her father’s name in the lists. The father’s name in the certified voter’s lists should have been considered as evidence to establish linkage.

Second, the HC was also incorrect in finding that the Petitioner’s husband’s oral testimony was inadmissible. The Petitioner’s husband orally testified to establish the linkage between the Petitioner and her father. As per Section 50 read with Section 59 of the Indian Evidence Act, oral evidence of a person who has special means of knowledge is admissible to prove the existence of a relationship between persons. In fact, courts have held that if the oral evidence is given by a person who has special means of knowledge about the relationship, such evidence is admissible. The husband, by virtue of his marriage to the Petitioner, satisfies this requirement and his testimony was therefore admissible. Thus, the oral testimony did not need to be supported by documentary evidence and was admissible ipso facto. Even then, the HC’s stance that it was not supported by documentary evidence was wrong since the oral testimony was also backed by the voter’s lists having the father’s name. 

Table of Authorities:

  1. Jasmin Begum @Jesminara Begum v. UOI, W.P. (C) 3084/2019

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 Radhika Dharnia.

Bailly Gui Landry v. The State of Telangana, Criminal Petition Nos. 4396 and 4400 of 2021

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Read the judgement here.

Date of decision: 22.06.2021

Court: Telangana High Court

Judge: Justice K. Lakshman

Summary: The High Court of Telangana quashed the orders of deportation issued by a Magistrate against the Petitioner, a foreigner who was the national of Ivory Coast. The High Court held that a Magistrate does not have the power to issue an order for deportation. 

Facts: The Petitioner, a national of Ivory Coast was prosecuted  in two similar criminal cases of cyber cheating scams. The Magistrate acquitted the Petitioner in both the cases. However, as the Petitioner was holding an Indian employment visa, which was valid only till 07.02.2020, the Magistrate also ordered the authorities to immediately deport the Petitioner to Ivory Coast. Subsequently, the Foreigners Registration Regional Office (FRRO) detained the Petitioner as deportation was not possible due to COVID-19 restrictions. The Petitioner filed this petition, challenging the power of the Magistrate to order the deportation. 

Holding: The High Court held that the “Learned Magistrate has to confine his findings with regard to either acquittal or conviction of accused therein under Section 248 of the Cr.P.C, Learned Magistrate is not having power to order deportation of any foreign citizen for any violation” (paragraph 11). In other words, the High Court held that the power of the Magistrate is confined to a finding of acquittal or conviction of the accused. The Magistrate does not have the power to order deportation of any foreign citizen for any violation. Accordingly, the order of deportation of the Petitioner was quashed. However, the Court rejected the Petitioner’s prayer to release him from custody observing that the FRRO’s order of deportation and movement restrictions was valid, since it is a body recognised under Sub Rule (1) of Rule 3 of the Registration of Foreigners Rules, empowered to implement the rules  regarding  foreign nationals. The FRRO  exercised its power conferred under  Section 3(2)(c) of the Foreigners Act, 1946, which allows FRRO and other authorities to identify, detain and deport foreign nations who are in violation of any law. The detention of the Petitioner authorised by FRRO’s order was considered valid because the Petitioner has been illegally residing in India after the expiry of his visa.  At the same time, the Court observed that the Petitioner could challenge the FRRO’s order separately. Perhaps, this indicated that the exercise of the wide powers conferred under the law could be challenged.

Significance: This decision clarifies that a Magistrate does not have the power to order deportation of a foreign national even if they are in violation of any law. Similarly, the Assam government had directed the Foreign Tribunals to refrain from passing any “consequential orders” authorising deportation as the Tribunal, like the Magistrate, is not competent to do so. The deportation can only be done by the ‘competent authorities’ (like the ‘FRRO’) after following the procedure established by law under The Foreigners Act, 1946. The procedure for deportation of a foreign person was discussed in Babul Khan v. State of Karnataka where the High Court of Karnataka held that a foreign national residing in India without visa would be considered an ‘illegal migrant’ and should be deported immediately. In the case of Bhim Singh vs. Union of India, the Supreme Court, after observing the problem of overstaying foreign nationals in prison, directed that the government authorities should avoid delay in administrative procedure and carry out the deportation within four weeks from the date of receipt of the ‘No Objection’ certificate.

In the present case, even though the Petitioner was acquitted of non-serious offences, the FRRO directed him to remain in the premises of Cybercrime Cyberabad on the ground of ‘national security’ concerns and on the possibility of him indulging in illegal activities till his deportation, delayed due to COVID-19 restrictions. Although COVID-19 has been cited as a reason in the present case, detention before deportation of foreing nationals is becoming a matter of routine in India (for instance, here and here). 

At present, there is an alarming increase in the anxiety surrounding the activities of foreign nationals who have been illegally residing in India. This has led to the burgeoning detention centres in states across India (here, here, here and here). In fact, in an interview, Karnataka’s Director General of Police Praveen Sood explained the logic behind the setting up of detention centres is to create a separate detention regime from jail where foreign nationals could not apply for bail and continue staying in India. The absence of citizenship enables detention centres to operate as a “parallel punitive system where deprivation of liberty is compounded by the lack of detention limits, delayed deportations, fewer due process safeguards and constitutional protections.” In effect, apart from being denied the right to bail, ex-prisoners who are foreign nationals may even be held for considerable periods of time post-sentence. 

In summation, the “‘crimmigration’ laws in India include weak procedural safeguards that fail to protect against prolonged detentions and impose few restrictions on deportation powers”. Foreign nationals, including genuine refugees and asylum seekers, are being routinely detained to be deported without any scrutiny of grounds or justification. COVID-19 has only exacerbated the problem of delayed deportations and is being used as an excuse to allow authorities to detain foreigners like the Petitioner in custody without violation of any law in what could become indefinite detention. While dismissing the Petitioner’s plea of release from custody, the Court observed that the Petitioner can challenge the FRRO’s order separately. This establishes that the exercise of power by the authorities under the broad provisions of the Foreigners Act could be challenged, however, the High Court failed to look into the validity of the detention itself  and whether it was appropriate to have the person detained in the Police station pending deportation, especially in the prevailing circumstances of the pandemic .

Table of Authorities:

  1. Babul Khan v. State of Karnataka, CRL.P. NO.6578/2019
  2. Bhim Singh vs. Union of India, [W.P. (Criminal.) No. 310/2005]

Resources: 

  1. Meha Dixit, Stateless in Amritsar: India’s Convicted Foreign Nationals and Their Eternal Wait to Go Home, The Caravan, 9 September, 2015
  2. Hira Nagar Jail Turned Into ‘Holding Centre’ For Rohingyas, Kashmir Observer, 2 April, 2021
  3. Sujata Ramachandran, The Contours of Crimmigration Control in India, Global Detention Project, 2019
  4. Rahul Tripathi, ​​States told to set up Centres to detain illegal migrants, The Economic Times, 29 July, 2019
  5. Rohini Swamy, A year after it was set up, Karnataka ‘detention centre’ gets first detainee — a Sudanese, The Print, 20 November, 2020
  6. Meha Dixit, In Jammu, Prisoners Detained for Border Crossing Languish in Jails Despite Completing Their Sentences, The Caravan, 29 April, 2016
  7. India: Release Detained Myanmar Asylum Seekers, Human Rights Watch, 28 July, 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 Dewangi Sharma.

Sujab Ali v. Union of India, WP(C)/2221/2020

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Read the judgment here.

Date of decision: 20.08.2021

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh and Justice Soumitra Saikia

Summary: The Gauhati High Court quashed an order passed by the Foreigners Tribunal, declaring the petitioner to be a ‘foreigner’ who entered India after 25.03.1971. The High Court held that the order neither demonstrated proper consideration of the Petitioner’s evidence nor provided sufficient reasons for rejecting it. The matter was remanded back for fresh hearing and the Petitioner was released from detention subject to conditions.

Facts: The Petitioner was referred to the Foreigners’ Tribunal (FT) on the ground that he was a ‘foreigner’ who entered India after 25.03.1971. In response, the Petitioner submitted that he is a ‘citizen’ and produced 4 witnesses and 39 documents to support his case. Since he was born on 11.01.1992, he submitted evidence to trace a lineage to his parents and establish that they were born in India prior to the cut-off date of 24.03.1971. This means that the Petitioner was seeking to prove that his parents are citizens under Section 6A of the Citizenship Act, 1955 and that he is a descendant of ordinary residents of Assam prior to 01.01.1966 or 25.03.1971. The FT did not consider the evidence as admissible and did not provide reasons for rejecting the documents and witness testimonies. It also held that the evidence did not prove the link between the Petitioner and his alleged parents, grandparents or great-grandparents. The FT declared the Petitioner as a ‘foreigner’ who entered India after 25.03.1971. Accordingly, it ordered for his detention, deportation and the deletion of his name from all voter lists.

The Petitioner filed the present writ petition challenging this order. The Petitioner contended that the FT did not assess and properly consider the evidence before it. The counsel on behalf of the FT rebutted this argument by citing Section 9 of the Foreigners Act, 1946. Section 9 places the burden of proof on the person considered to be a ‘foreigner’ to show that he is not a ‘foreigner’.

Holding: The High Court examined the FT’s order. First, it held that,“The Tribunal, while referring to all the 39 exhibits, has not described as to why…the documents…were not accepted by the Tribunal. The Tribunal did not give reasons as to why the exhibits are not admissible in evidence. What is also noticed is that the oral evidence by four (4) witnesses produced by the petitioner including himself have been disbelieved without giving any reasons” (paragraph 12). In other words, the High Court held that the FT did not provide reasons for why it rejected the documentary or oral evidence. In this regard, the Court affirmed the position on the appreciation of evidence laid down in State of Assam v. Moslem Mandal. It held that the FT has to consider and assess all of the evidence before coming to the conclusion that it is insufficient for establishing linkage.

Second, the Court discussed the standard of admissibility with respect to the documents. It held that: “If the documents satisfy the requirements of law, the Tribunal has to accept them and determine whether they establish the linkage that the petitioner seeks to establish” (paragraph 14). In other words, documents have to be accepted as long as the procedure for admission satisfies the requirements under the Indian Evidence Act, 1872. In the present case, the Court noted that although the documents were admitted as evidence, it was not clear from the impugned order whether the documents satisfied the procedure laid down under the evidence law. Thus, the FT must reconsider the documents in light of whether the requirements of admissibility had been satisfied or not. 

Third, the Court observed that while 39 documents were admitted as evidence, the “order did not contain any observations about the manner in which they were presented before the Tribunal” (paragraph 14). The Petitioner produced photocopies from the certified copies of land documents, which were accepted as exhibits by the Tribunal. “As per the Indian Evidence Act 1872, unless the documents presented before the court satisfy the procedure laid down under the Act, the same will not be admissible” (paragraph 14). The order of the Foreigner’s Tribunal did not indicate whether such procedure had been fulfilled or not by the petitioner. If the documents satisfy the requirements of law, the Tribunal has to accept them and determine whether they establish the linkage that the petitioner seeks to establish. 

The Petitioner argued that all oral evidence must be considered in terms of Section 50 of the Evidence Act. Section 50 states that when the court has to form an opinion on the relationship between two or more persons, then the opinion, expressed by conduct, of any person who would have a special knowledge about the (impugned) relationship, either as a member of the family or otherwise, is a relevant fact. In other words, the opinion of a person who has knowledge about the impugned relationship is a relevant fact for the purpose of evidence. In this regard, the High Court referred to the Supreme Court’s discussion on Section 50 in the case of Dolgobinda Paricha v. Nimai Charan Misra. It was held that there are three essential requirements of Section 50. Crucially, the Court held that the term ‘opinion’ in Section 50 means “something more than mere retelling of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question” (paragraph 15). In other words, opinion means a belief or a conviction that results from one’s thoughts on a particular question. Resultantly, the Court must infer this opinion through conduct, which cannot be willed without the inner existence of the opinion. Then, the Court assesses this opinion to determine the existence of the relationship in question.

The Court applied Section 50 of the Evidence Act and held that “under the circumstances, we find that the documents exhibited and the oral evidences adduced by the petitioner before the Tribunal have not been considered by the Tribunal, and no reasons are discernible in the impugned order so as to enable this Court to appreciate the basis of rejection of these evidences by the Tribunal” (paragraph 16). Therefore, the writ petition was partially allowed. Accordingly, the Court remanded the matter back to the Tribunal for rehearing and arriving at a judicious finding based on proper appreciation of evidence. 

Lastly, the Court took notice of the fact that the Petitioner had been in detention since the date of the FT order and ordered his release on bail. However, the bail was on the condition that the Petitioner will appear before the Deputy Commissioner of Police, Guwahati and furnish a bail bond of Rs.5000/. At the time of executing the bail bond, the Deputy Commissioner of Police (B), Guwahati shall take photographs of the Petitioner and also record the biometrics of the iris of both the eyes as well as the fingerprints of both the hands of the Petitioner. 

Significance: The High Court recognised the applicability of Section 50 of the Indian Evidence Act, 1872 to proceedings before the FTs. This is in line with the earlier decision in Haider Ali v. Union of India and in contrast with the previous decision in Nur Begum v. Union of India. This is a significant development in the field and will lead to a positive outcome. FTs routinely disregard oral evidence and have held individuals to be foreigners due to the lack of documentary evidence of linkage in their cases, even when their parents or siblings testify in the FT about the identity of the parents of the suspected person. Section 59 of the Evidence Act recognises oral evidence as a valid mode of proof. In particular, Section 50 expressly acknowledges the relevance of oral evidence for cases on establishing the existence of a relationship between two persons. The failure to consider oral evidence as valid in citizenship cases has a disproportionate impact on poor and illiterate married women who do not have birth certificates or school records due to their disadvantaged socio-economic backgrounds. Such women have no documentary proof of their parents’ identities. Their existence is documented in government records only in their adult lives as wives of their husbands following the patriarchal norms of identification of women alongside their husbands. This is also true for children. Some children, especially girls, do not go to school and hence do not have school certificates. Some struggle to establish their identity in the absence of fathers. Similarly, transgender persons are also discriminated against in the process. Swati Bidhan Baruah explained that transgender persons are likely to lack access to the necessary legacy and linkage documents. Even in cases where such documents are available, these documents are often rejected on the basis of the inconsistencies in their gender and names. Therefore, the recognition that Section 50 is to be applied is an important step towards ensuring that marginalized groups are not disproportionately burdened when defending their citizenship.

At the same time, this judgment is flawed insofar as the High Court imposed onerous conditions for bail. We have previously criticized this in our discussion of Samsul Hoque v. UOI. Notably, the Court did not even condemn the wrongful detention as a consequence of an inadequately reasoned order passed by the FT.

Table of Authorities:

  1. State of Assam and Anr. v. Moslem Mandal and Ors., 2013 (1) GLT 809
  2. Dolgobinda Paricha v. Nimai Charan Misra, 1959 AIR 914 
    1. Affirms discussion of Section 50 in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299, 309.

Resources:

  1. Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in the Indian state of Assam, Statelessness and Citizenship Review, Volume 2 No 1.
  2. Designed to Exclude: How India’s courts are allowing Foreigners Tribunals to render people stateless in Assam, Amnesty International, 2019. 
  3. Arushi Gupta and Eeshan Sonak, Case Note: Samsul Hoque v. Union of India, WP(C)/6056/2019, Parichay Blog, 19th September 2021. 
  4. Parichay, Interview With Swati Bidhan Baruah, Parichay Blog, 5th October 2020.
  5. Trisha Bhapandit and Padmini Baruah, ‘Untrustworthy’ and ‘Unbelievable’: Women and the Quest for Citizenship in Assam, Statelessness and Citizenship Review, Vol. 3 No. 1.
  6. Sital Kalantry and Agnidipto Tarafder, Death by Paperwork: Determination of Citizenship and Detention of Alleged Foreigners in Assam, Cornell Legal Studies Research Paper, 2021. 
  7. Sadiq Naqvi, Captain Sanaullah’s Burden Of Extraordinary Proof, Article 14, 19th May 2020. 

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 Khush Alam Singh and Arushi Gupta.

Mamtaz Begum v. Union of India, WP(C)/7305/2021

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Read the judgement here

Date of decision: 03.01.2022

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh

Summary: The petitioner was declared as a foreigner by an ex parte order of the Foreigners’ Tribunal. The Gauhati High Court remanded the matter to the Foreigners’ Tribunal for reconsideration on the ground that the Tribunal had not actually arrived at a specific finding as to when the petitioner had entered India. 

Facts: The petitioner had failed to appear before the Foreigners Tribunal No. 6, Barpeta, on two occasions. The Tribunal passed an ex parte order against her on 11.03.2019, declaring her a foreigner on the ground that she had entered India illegally on or before 25.03.1971. 

Holding: The petitioner argued that she could not appear before the Tribunal as she had been preparing for the case by gathering necessary evidence. The Standing Counsel for the Foreigners Tribunal argued that the petitioner may be allowed to appear before the Tribunal again, provided that costs were imposed upon her for non-appearance. The Gauhati High Court remanded the matter to the Foreigners’ Tribunal, asking it to deliver a specific finding with respect to the status of the petitioner. It found that the “finding arrived at by the learned Tribunal is ambiguous as there is no specific finding as to whether the petitioner had entered India (Assam) illegally before 25.03.1971 or after 25.03.1971 with different consequences.” (paragraph 6)

Significance: The Gauhati High Court correctly noted that “if a person is declared to have entered illegally India (Assam) before 25.03.1971, certain benefits would accrue to him or her as provided under Section 6A(3) of the Citizenship Act, 1955.” (paragraph 6) According to Section 6A, persons who settled in Assam between 1st January 1966 and the cut-off date would have to register themselves according to the rules laid down by the Central Government and would enjoy all other rights except the right to vote for a ten-year period. The Foreigners Tribunal, in finding that the petitioner had entered the country illegally on or before 25.03.1971, neglected to note this aspect.

This lapse on the part of the Tribunal, and its attempt to pass it off as a typographical error, is part of larger, systemic issues that plague Foreigners Tribunals in Assam. These Tribunals are quasi-judicial bodies, often staffed by untrained persons with no knowledge of law, following opaque procedures that ultimately harm petitioners. This case is illustrative of the improper application of the law by the Tribunal in determining the question of citizenship. 

Resources:

  1. Designed To Exclude: How India’s Courts Are Allowing Foreigner Tribunals To Render People Stateless In Assam, Amnesty International India, 2019. 
  2. Talha Abdul Rahman, Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam, Statelessness & Citizenship Review, 2020. 

Section 6A and Assam, Parichay Blog, 17 July 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 Radhika Dharnia.