Foreigners’ Tribunals

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

Foreigners’ Tribunals are quasi-judicial bodies set up by the Central Government to determine whether a person is a foreigner or not under the Foreigners’ (Tribunals) Order, 1964, created under the Foreigners Act, 1946. The Executive appoints judicial members to adjudicate cases before FTs. These tribunals differ from other tribunals or courts of law in India in terms of procedure, selection criteria of judicial members, examination of evidence, absence of an appellate body, etc. Presently, as many as 1.4 lakh cases of suspected foreigners are pending before 300 tribunals functioning in Assam. 

History and Establishment of Foreigners’ Tribunals

The primary aim behind setting up foreigners’ tribunals was to avoid arbitrary deportation. The Foreigners Act was first enacted in 1864, to limit the mobility of groups that the colonial British government saw as “disorderly or alien.” The Foreigner’s Act, 1946, which was adopted by independent India, incorporated this objective as well, in a situation where borders were porous and in flux, especially along the eastern borders. However, the Foreigners Act did not incorporate any mechanism for the identification and detection of foreigners. 

The 1961 Census Report focused on preparing data on irregular immigrants. 2,20,691 ‘infiltrants’ were found in Assam due to migration from East Pakistan. The Border police thereafter misused this data as they started detecting and deporting foreigners without any judicial process. The Ministry of Home Affairs then, through powers granted under Section 3 of the Foreigners Act, passed the Foreigners (Tribunal) Order, 1964, so that no person would be deported without a hearing. 

In 1983, the Government of India passed the Illegal Migrant (Determination by the Tribunal) Act, 1983 (‘IMDT Act’). The objective of this Act was to determine foreigners who entered India after 25 March 1971, according to Section 6A of the Citizenship Amendment Act, 1986. Such individuals were ineligible to obtain Indian citizenship and were detected and deported in accordance with the IMDT Act. The IMDT Act differed significantly from the Foreigners Order in one respect: it placed the burden of proof for demonstrating that the individual is a foreigner upon the state. It also defined the eligibility criteria to be a judicial member of the tribunal. An option of the review was available in case a difference of opinion arose among the judicial members.

However, there was growing turmoil in Assam as the leaders of Assam Agitation believed that the IMDT Act was unsuccessful in detecting and expelling foreigners and the issue of irregular immigration remained unresolved. Hence, in 2005, in Sarbananda Sonowal v. Union of India, the Supreme Court declared the IMDT Act as unconstitutional, as it found the procedure laid down in the Act to be “time-consuming”. The Court cited two reasons for its decision. First, that the Act failed to protect the people of Assam from external aggression by the migrants, which is the prerogative of the central government. Second, that in order to uphold national security, there was a need for identification of these foreigners to expedite their deportation. The Court struck down the IMDT Act as unconstitutional, and reverted to the Tribunal regime established under the Foreigners Act and Order, thus shifting the burden of proof to the individual suspected to be a foreigner. 

How do Foreigners’ Tribunals receive Cases?

There are three modes through which the Foreigners’ Tribunals receive cases: references from the Border Police, the Election Commission of India, and the National Register of Citizens. There are presently 1.9 million people who are excluded from the final draft of the NRC, waiting for their fate to be decided, as the process for their claim to citizenship before FT is yet to be started. 

Almost every district in Assam has Assam Police Border personnel stationed, who identify and investigate alleged foreigners based on their discretion. Cases identified by the Border Police are referred to FTs for final adjudication. However, civil society organisations argue that this power is often abused by the Border Police as they do not follow any investigatory guidelines to identify alleged foreigners, as laid down by the Gauhati High Court

Individuals can also be identified as foreigners by the Election Commission. In 1997, the ECI had identified around 2,30,000 voters as ‘doubtful,’ whose cases were then referred to FTs for adjudication. 

Finally, the National Register of Citizens in Assam is an exercise identifying all Indian citizens in the state. Individuals excluded from the list are identified as foreigners, who will have to prove their citizenship before FTs. In 2019, the final NRC list was released, which excluded around 19 lakh people from citizenship. In May 2021, the NRC Coordinator had filed an application before the Supreme Court seeking re-verification of the NRC, stating that some ‘issues of substantive importance’ cropped up while preparing the rejecting slips, thus delaying the process.

Lapses of Foreigners’ Tribunals in India

India is a party to the International Covenant on Civil and Political Rights (ICCPR) and is hence bound by its treaty obligations. Article 14(1) of ICCPR states that every person is entitled to a “fair and public hearing by a competent, independent and impartial tribunal established by law.” The Foreigners Act falls short on each criterion set by ICCPR, as it fails to establish standardised criteria of eligibility for its members. 

Scholars and civil society organisations have raised concerns regarding the independence and impartiality of these tribunals. The appointed members of the Foreigners’ Tribunal do not have any specialized training in law or adjudication. This is evidenced by the Gauhati High Court’s circular seeking to appoint senior civil servants as members of the Foreigners’ Tribunal, as opposed to persons having prior adjudicatory or legal experience. Moreover, membership with the Tribunal is renewed or terminated depending on the conviction rate. Thus, members of the Foreigners’ Tribunal would be incentivised to declare more people as foreigners, to retain their seats. This leads to an inherent conflict of interest, which falls short of the requirement of impartiality.

The Act also fails to state the training a member needs to carry out the judicial duties, thus compromising the requirement of competency. In 2015, the training received by the 63 selected members spanned merely four days. Out of those, only two were former or serving judicial officers. Moreover, the Government of Assam has further lowered the threshold of experience required from 10 years to 7 years. The age limit of induction which was previously 45 years, is now 35.

The tribunals are empowered to regulate their own procedures, as provided by the 1964 Order. Civil society organisations have noted that in practice, this power is abused and the tribunals do not provide documents such as written statements, witness depositions, etc., which are necessary for an individual to fairly contest and appeal their case. More than 60% of cases are decided ex-parte, as most individuals do not receive show-cause notices. The Gauhati High Court had stated that since Foreigners’ Tribunals are not civil but rather quasi-judicial bodies, the principle of res judicata does not apply. However, the Supreme Court in Abdul Kuddus v. Union Of India, later overturned this ratio, finding instead that quasi-judicial orders rendered by Foreigners’ Tribunals have civil consequences. Therefore, the doctrine of res judicata would apply. Further, the orders passed by Foreigners’ Tribunals cannot easily be found in the public realm, making the entire process opaque.

The Foreigners Act and Order do not provide for a right to appeal against the decision of a Foreigners’ Tribunal and set up no appellate body. All appeals have to be made to the High Court and Supreme Court. There are various factors such as litigating costs, locations, the prolonged duration of appeals etc. which act as barriers to individuals approaching appellate courts for a review of their decision. Even if they wish to do so, this right has become judicially restricted through the decision of the State of Assam v. Moslem Mandal. The decision states that the tribunal is the final fact-finding body, post which facts cannot be challenged during the appeal. However, facts are the most important aspect of such cases. Lawyers practising in FTs note an alarming difference between the prescribed methods for fact-finding and how facts are actually obtained by the Border Police. The guidelines laid in Moslem Mandal propounded that the referring authority must forward their observations recording their satisfaction in such a manner that demonstrates their application of mind to the facts and circumstances of the case; however, the fact-collection procedure is largely ignored. 

Conclusion

The objective of the 1946 Act was to deport legitimate foreigners in the Indian territory, rather than to determine the citizenship status of the masses to declare them foreigners. The functioning of these tribunals fails to take into consideration the grave risks associated with statelessness. It forces targeted individuals to live in limbo with constant anxiety over their civil and political rights. 

Suggested readings

  1. Amnesty International India, ‘Designed To Exclude: How India’s Courts Are Allowing Foreigner Tribunals To Render People Stateless In Assam,’ (2019) <https://www.amnesty.be/IMG/pdf/rapport_inde.pdf>.
  2. Talha Abdul Rahman, ‘Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam’ VOL 2 NO 1 (2020): STATELESSNESS & CITIZENSHIP REVIEW <https://statelessnessandcitizenshipreview.com/index.php/journal/article/view/141>. 
  3. Sangeeta Barooah Pisharoty, ‘Explainer: What Do the MHA’s Changes to 1964 Foreigners Tribunals Order Mean?’ (The Wire, 14 June 2019) <https://thewire.in/government/foreigners-tribunals-order-mha-changes
  4. State of Assam v. Moslem Mandal and Ors. (2013) 3 Gau LR 402.
  5. Mohsin Alam Bhat, ‘Twilight Citizenship’ (2020) 729 Seminar <https://www.india-seminar.com/2020/729/729_m_mohsin_alam_bhat.htm>. 
  6. Citizens Against Hate, ‘Making Foreigner: Report on NRC Updation in Assam and the Risk of Mass Statelessness’ (2018) <https://citizensagainsthate.org/wp-content/uploads/2019/06/Making-Foreigner.pdf

Deportation and Detention

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

A foreigner as defined in Section 2(a) of the Foreigners Act of 1946 (‘the Act’) means a person who is not a citizen of India.[1] The ambit of this act extends to stipulating the deportation or detention of such foreigners. The definition of a foreigner within the Act, however, is vague since it negates the distinction between refugees, illegal migrants, and asylum seekers.

Deportation entails the expulsion of a foreigner from their current resident country to their country of origin or any other third country by any lawful authority on grounds authorised by law. While detention entails the lawful confinement of any individual, such confinement must be prescribed by any statute and sanctioned by the Court. The relevance of this discussion hinges on the several petitions challenging deportation orders and  thousands of individuals being detained in detention centres in dingy conditions for prolonged periods without a fair trial.

The authority of the Indian State to deport arises from Section 3 of the Act which allows the State to make orders restricting the stay of “foreigners” within Indian territory. Threat to national security, illegal entry into the country, commission of crimes by foreigners, residence within the country after the expiration of visa, violation of visa conditions, and nationality under question are some of the grounds on which the State has previously administered deportation orders.

In Assam, in particular, vide Notification No. 1/7/61–F.III dated the 22nd March 1961, the authority of the state to adjudge individuals as foreigners under clauses (c) and (cc) of Sub–section (2) of Section 3 of the Foreigners Act, 1946, was extended to the Superintendent of Police and Deputy Commissioners under the Govt. of Assam. This was followed by the entrustment of such a power by the President vide Notification No. 14011/13/75-F.III dated 17.02.1976 by virtue of under clause (1) of Article 258 of the Constitution. This was however, subject to the various conditions.[2] The power of issuing orders for detention, however, was not entrusted and yet has been exercised wherein movement of foreigners is being curtailed and they are being placed in foreigner wards in jails or detention centres. This is in conformity with the Madras High Court judgement dated 21.09.2007 in Habeas Corpus Petition No. 1138 of 2006 titled Latha v. Public Department and Innocent v. State of Goa(which later reaffirmed this judgement)wherein it was deemed permissible for the state government to act under delegated powers under Section 3(2)(e) in keeping a foreigner in a detention camp.

Since there is immense administrative control without any definitive statutory grounds based on which deportation can take place, the State has often tried to pass arbitrary orders. For instance, in Kamil Siedczynski,[3] the State issued a Leave India Notice to a Polish student studying in West Bengal for participating in a protest against a new Indian legislation. The Court held such an order to be null and void, since it was arbitrary and without any reason. The Court held that the student was on a valid visa, and merely protesting against the State does not warrant a deportation.

Additionally, The State does not enjoy unfettered discretion to expel any foreigner. Article 21 of the Indian Constitution allows for the deprivation of life and liberty only on the basis of procedure established by law. The deportation of any foreigner must be in compliance with Article 21 and other international principles. A deportation order must be assessed by the courts to be just, fair, and reasonable as interpreted by Article 21.[4] A deportation order restricting the stay of a foreigner must also be proportionate to the end goal that it seeks to achieve.

Few principles in domestic and international law act as safeguards against the deportation of foreigners. For instance, Article 33 of the 1951 Refugee Convention talks about non-refoulement, which means that no State can send foreigners back to the place where they may face the risk of persecution. India has often argued that it has no obligation to comply with the non-refoulement principle since it is not a signatory to the 1951 Refugee Convention. Nonetheless, India must abide by the non-refoulement principle while deporting foreigners as the principle has evolved to be a part of the customary international law and is embedded in several other international instruments to which India is a signatory.

Deportation and detention run hand in hand. Section 3(2)(g) of the Act empowers the State to make orders in relation to the arrest and detention of foreigners. Foreigners awaiting deportation, individuals who do not possess documents, or foreigners whose nationality cannot be determined are kept under detention. Detention is justified by the State on grounds that Article 19 is not applicable to foreigners.[5]

Furthermore, the actions of the government actors flout procedure when detaining individuals under the pretence of them being foreigners. As per Section 4(2) of the Act, every officer making an arrest under Section 4 shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case or to the officer in charge of the nearest police-station and the provisions of Section 61 of the Code of Criminal Procedure, 1898, (5 of 1898) shall, so far as may be, apply in the case of any such arrest. The same is not undertaken in the initiation of proceedings or competition of proceedings before the FTs.

Foreigners are detained for prolonged time periods due to lack of proper deportation procedures. Deportation can only take place when the receiving country is willing to accept the alleged foreigner. In several cases, foreigners are detained indefinitely as no other countries are willing to accept them. Many alleged foreigners claim to be Indian citizens, but are not able to challenge the decision of Foreigners’ Tribunals. This implies that several Indian citizens may have been wrongfully termed as foreigners and in the absence of any challenges, they still remain under wrongful detention. This runs contrary to the principles enshrined in Article 21 of the Indian Constitution and Articles 9 and 14 of the ICCPR by virtue of which every individual, irrespective of their nationality, deserves a fair trial and has a right to approach the courts.[6]

It is to be noted that the power of detention enshrined in Section 3(2)(g) and Section 4 were deleted from the Foreigners Act vide the Foreigners Amendment Act, 1957 after the then Attorney General of India, Mr. MC Setalvad, conceded to its lack of compliance with Article 21 and Article 22 of the Constitution in the case of Hans Muller of Nuremberg v. Supdt. Presidency Jail, Calcutta, (1955) 1 SCR 1284. Such power was reintroduced by virtue of an amendment in 1962 in light of the war with China. It was via an amendment in 2013, that this power was addressed in Paragraph 3 of the Foreigners (Tribunals) Order, 1964.

Additionally, courts have looked down upon indefinite detention, since it runs contrary to Articles 14 and 21 of the Constitution.[7] In Hussainara Khatoon,[8] the Court spoke about pre-trial detention and stated that “a procedure which keeps such large numbers of people behind bars without trial for so long cannot possibly be regarded as ‘reasonable, just or fair’”. Additionally, the courts, in the case of State of Assam v. Moslem Mandal, (2013) 3 GLR 402stated that there is a limitation of 2 months for the duration of how long a foreigner may be detained.

The detention of foreigners is administrative in nature. These foreigners have not committed any penal offence; therefore, they are placed in detention centres awaiting deportation. Even if convicted of a penal offence, they are placed there after completing their sentence. Foreigners in detention centres must be treated with dignity. Unfortunately, the condition of these detention-centres is highly appalling as they fail to provide the detainees with proper food, water, hygiene, healthcare and other basic facilities.[9] This runs contrary to the hearing in Santanu Borthakur v. Union of India, tagged with W.P. (Crl) 7/2020 titled Abantee Dutta v. Union of India.The courts, vide Order 07.10.2020, observed that foreigners could not be held in jails and that the detention centres created by state government is in compliance with the standards stipulated by the central government.

The Act, first, ought to make a clear distinction between all categories of non-citizens. Further,  it needs to mention definitive grounds based on which deportation can take place. In the absence of such grounds, the administration enjoys too much leeway in administering deportation orders. Most importantly, alleged foreigners cannot be made to live in inhuman conditions within these detention-centres for an indefinite time period. Foreigners ought to be governed by a regime of rights, where they are granted all the necessary facilities within the detention-centres. A foreigner enjoys all rights as mentioned under Article 21. The government and the local-administration should be the first points to ensure the well-being of all foreigners.    

SUGGESTED READINGS:


The Search for Foreigners in Assam – An Analysis of Cases Before a Foreigners’ Tribunal and the High Court

Leah Verghese and Shruthi Naik are executive team members at DAKSH India.

The Gauhati High Court recently set aside an order by a Foreigners’ Tribunal in Assam that declared Haidar Ali a foreigner for failing to establish linkage with seven people whose names appear along with his grandparents’ names in the 1970 voter list. This order has once again brought to the spotlight the flawed citizenship adjudicatory process in Assam. To understand these processes better, the authors have analysed 818 orders passed by Foreigners Tribunal No. 4 in Hajo between 16 June 2017 and 30 December 2019 (obtained through RTI) and 787 orders and judgments of the Gauhati High Court delivered between 2010 and 2019, resulting from writ petitions filed against orders of the Foreigners Tribunals. In this article, the authors explore the process of adjudication of citizenship in Assam, in terms of fairness, procedural aspects, and time taken through an analysis of these orders.

Analysis of Foreigners Tribunal orders

98 per cent of the suspected foreigners brought before Hajo Foreigners Tribunal No. 4 during this period were Muslim. This is not reflective of the population of Hajo, which has a 44 per cent Muslim population, and neither are these numbers explained by the demographic composition of Bangladesh. The 1951 census showed that in East Pakistan (today’s Bangladesh), non-Muslims comprised 23.20 per cent of the population. This proportion became 19.57 per cent in 1961, 14.60 per cent in 1974, 13.40 per cent in 1981, 11.70 per cent in 1991 and 10.40 per cent in 2001. The abnormally high proportion of Muslims (as compared to their population in Hajo or even Bangladesh) brought before the tribunal during this period indicates that they are being targeted.

The orders also reflect a serious non-application of the judicial mind. A majority of orders followed a set of templates with only the names of persons, the police station involved, and the dates relating to the case being changed. The descriptions of investigations by the police are like movie scripts riddled with obvious plot holes. In 733 cases, the police claim to have met the suspected foreigners. During these alleged visits, the police asked these suspected foreigners to produce documentary proof of their citizenship, and 570 of them allegedly told the police that they had no documents to prove that they are Indian citizens. The orders do not mention what kind of documentary proof the police asked for.  It is a little difficult to believe that when it comes to a matter as serious as citizenship, 570 people could not produce even a scrap of paper furthering their claim. This leads us to wonder whether the police’s accounts of these visits is credible. In 218 of these cases, the police also concluded which district in Bangladesh (mostly from Maimansingh) the suspected foreigners were from, despite the complete absence of any documentary proof of citizenship. Apart from these alleged meetings with the suspected foreigners, the orders do not describe any police investigation.

Although the police claimed they were able to meet suspected foreigners before submitting their enquiry report, in at least 98 per cent of such cases, they were unable to locate them subsequently to serve a notice to appear before the Foreigners Tribunal. The reason often cited in the orders is that the police could not find the person at their place of residence and local residents and the gaon burahs did not know of their whereabouts when the police enquired with them. We spoke to an advocate practicing at the Gauhati High Court (who has also appeared before the Foreigner Tribunals) who revealed that in some cases, the gaon burahs have also appeared as witnesses for the suspected foreigners and confirmed that the police did not question them and that the person does live in their village. The process adopted by Foreigners Tribunals does not allow the police to be cross-examined by suspected foreigners’ advocates. The lack of a procedure to cross-examine the police leaves no scope to challenge the police’s submissions regarding their alleged meetings with the suspected foreigners and their subsequent inability to find the same people.

The inability to find these suspected foreigners to serve the Foreigners Tribunal’s notice on them works out conveniently for the police and the tribunal. Unlike regular criminal trials where an accused is presumed not guilty and the state has to prove that they committed a crime, the burden of proof as per Section 9 of the Foreigners Act, 1946 is on the person accused of being a foreigner. This reversed burden means that if a person fails to appear before the Foreigners Tribunal, the Tribunal can pass an order declaring them foreigners without hearing the suspected foreigner. We found that 96 per cent of the orders we analysed were given ex-parte. In all these orders, the police produced no evidence to indicate that the suspected foreigners were not Indian. Yet, they were declared Bangladeshi because of the reversal of the burden of proof.

Only in 31 cases were the suspected foreigners allowed to refute the allegations made against them. All these 31 orders were passed by the tribunal member Giti Kakati Das. The progression of her career as a member of the Foreigners Tribunal gives an idea of the effect of declaring a low number of individuals to be foreigners. She was appointed as a member of this Foreigners Tribunal by an order of the Commissioner and Secretary, Home and Political Department dated 29 July 2015 on a contractual basis for one year. After one year, her services were extended for another year, till July 2017. Through a notification dated 20 June 2017, she was denied an extension along with several other members because she had not declared enough people as foreigners. She was reinstated only after she and the others challenged the termination of their services before the Gauhati High Court.

In addition to concerns of fairness, the suspected foreigners also had to go through long drawn proceedings. Given that most of the cases we analysed were decided ex-parte, we expected that these proceedings would have at least progressed swiftly. With a lack of information on the exact filing date of cases before the Foreigners Tribunals, we attempted to understand how long cases took to be disposed of by approximating the filing date as the median date of the year in which the police were asked to investigate the suspected foreigner. This Foreigners Tribunal took on average an astounding 3,637 days, i.e., nearly ten years, to dispose of a case. Of course, with the focus on Foreigners Tribunals in recent years, it is interesting to note that 92 per cent of the cases analysed were disposed of in the years 2018 and 2019 alone. It is also interesting to note that in 82 per cent of the cases, the report of service of notice being forwarded or notice being served in a substituted manner was done in the years 2018 and 2019, although the cases dated as far back as 1999. The cases seem to have been kept in cold storage for several years, then taken out, dusted, and disposed of with undue haste in 2018 and 2019. Further, even though cases were pending for such a long time, the Foreigners Tribunals decided these cases post-haste once the police reported that they could not find the suspected foreigner to serve the tribunal’s notice. In such circumstances (where the individual could not be found) the matter could be decided ex-parte. On average, the tribunal took 39 days from the date of receipt of this report to give ex-parte orders.   

97% of these orders direct that the proceedees be deported. Very few of these, if any, will be actually deported since deportation requires Bangladesh’s consent. According to data placed before the Lok Sabha as of 10 December 2019, only four Bangladeshis have been deported pursuant to their declaration as ‘foreigner’ by Foreigners Tribunals in Assam. If deportation is not possible, persons declared to be foreigners are supposed to be sent to detention centers within prisons in Assam, pending deportation.

Analysis of High Court judgments

41% of cases in the High Court judgments and orders pertained to orders passed by Foreigners Tribunals in the districts of Morigaon, Barpeta, and Goalpara. Although none of these districts share a border with Bangladesh, Barpeta has the largest number of Foreigners Tribunals. 35% of the High Court decisions we analysed involved ex-parte orders passed by Foreigners Tribunals.

All the persons whose cases reached the High Court in the set we analysed, had some form of documentation, ranging from electoral rolls, land records, and panchayat certificates. 61% of them had electoral rolls and 39% had permanent residential certificates/ certificates from the panchayat. In 66% of these cases, the Foreigners Tribunals found the documentation unsatisfactory, and in 38% of them, documentation was rejected because spellings did not match. In 71% of the cases, the secondary evidence was deemed not to be admissible. Secondary evidence is usually a copy of the document and not the original. Such evidence gets rejected because either these were not certified copies or the person who created the document (e.g., panchayat member, school principal, etc.) could not certify its contents.  One in two people were declared foreigners because the authorities that issued the documents produced before the tribunals failed to appear before the Foreigners Tribunals to testify that the documents produced are genuine and authentic to their knowledge.

Along with issues of procedural fairness, the issue of judicial delay was apparent in this round of analysis as well. The High Court took 477 days (1.3 years) on average to decide these cases and the average number of days between hearings was 116 days.. For these numbers to be put in context, they were compared with similar figures for other cases before the Gauhati High Court. As per data available in the DAKSH database for other cases, the average number of days between hearings was 31 days, and the overall time taken to dispose cases was 277 days (0.7 years). The cases filed against the orders of Foreigners Tribunals seem to be taking considerably longer than other cases before the Gauhati High Court, even though these did not involve complex questions of law.   

We found an increase in the number of writ petitions filed before the Gauhati High Court in 2016, with the number of cases being close to double that of the previous year. The Government of Assam set up 64 Foreigners Tribunals in 2014, in addition to the then existing 36 Foreigners Tribunals. The spike in High Court cases may be because of the increase in the number of cases before the newly established Foreigners Tribunals.

The question of citizenship in Assam is nestled in a confusing tangle of documents, bureaucracy, and legal procedures which Foreigners Tribunals and the Gauhati High Court are tasked with resolving. Haidar Ali’s case aptly illustrates this. Ali was declared a foreigner on specious grounds even though he produced eleven documents supporting his claim of being an Indian citizen. This citizenship question is not merely a legal issue. It is also deeply embedded in the political history of Assam. Despite the end of the anti-foreigner agitation in 1985, the anxieties around the issue of migration from Bangladesh remain and have been exacerbated by the National Register of Citizens (NRC) process. Thus, given the political and popular pressure to find and deport foreigners, it is not surprising that the process followed by the Foreigners Tribunals so far has been arbitrary, biased, and unfair. These tribunals High Court needs to be mindful of the lived experiences of identity documentation to avoid an overly legalistic approach in the interests of justice. This issue acquires additional significance in the current context with 19 lakh people excluded from NRC whose cases will get referred to Foreigners Tribunals. Business as usual cannot go on. The process of adjudication of the claims of the persons excluded from the NRC needs to be shorn of the politics that has characterized the process so far and be molded into a fairer and less arbitrary process.   

People, Non-People, Citizens: A Feminist Perspective

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


This essay considers four interrelated questions.

First, are citizenship and citizenship rights unambiguously empowering? 

Second, why is citizenship a feminist issue?

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

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

I

Are citizenship and citizenship rights unambiguously empowering?

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

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

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

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

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

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

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

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

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

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

दिल्ली

नहीं है हम जैसे लोगों के लिए

क्या तुम्हें ऐसा नहीं लगता माया

कि वह ऐसा शमशान है जहाँ

जिंदा दफ़न होने के लिए भी लोग लाईन

में खड़े है ?

झारखण्ड की धरती संताल

परगना की माटी

दुमका के पहाड़

और काठीकुंड के उजड़ते

जंगल पुकार रहे हैं तुम्हें,

तुम जहाँ भी हो लौट आओ माया !

लौट आओ !!

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

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

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

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

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

II

Why is citizenship a feminist issue?

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

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

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

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

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

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

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

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

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

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

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

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

And this brings us to our third question.

III

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

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

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

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

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

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

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

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

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

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

IV

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Deprivation of Citizenship

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

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

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

Deprivation of Citizenship in Domestic and International Law

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

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

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

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

The Right against Arbitrary Deprivation of Nationality

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

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

Suggested Readings:


Naturalisation

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

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

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

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

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

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

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

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

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

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

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

Suggested readings:

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

Stateless Persons

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

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

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

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

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

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

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

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

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

Suggested Readings:

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

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

This research note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Sitamsini Cherukumalli and edited by Arunima Nair.

I. Background


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This note was last updated on 11 May 2021.

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

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

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

Case No.: CA 1058-1059/2021

Brief Facts:

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

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

Issues

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

Relevant Laws:

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

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

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

3C (1) Where the Foreigners Tribunal has passed an ex parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners Tribunal, it may on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly.


Arguments of the Petitioner

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

Arguments of the Respondent-State

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

Ruling

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

Solving a Trilemma — The Way Forward for the NRC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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