CAA revisited: How the May 2021 order of the MHA furthers a discriminatory citizenship regime

On May 28, 2021, the Ministry of Home Affairs passed an order under Section 16 of the Citizenship Act, 1955 which empowers the Central Government to delegate powers under the Act. However, exceeding mere delegation, this o rder created a specific procedure for naturalisation and registration for citizenship in respect of applicants from ‘minority communities’ in Afghanistan, Pakistan and Bangladesh, namely Hindus, Sikhs, Christians, Jains, Parsis and Buddhists, resident in specified districts in five states. This order was immediately challenged by the Indian Union Muslim League (IUML) in an interlocutory application that they filed in an earlier writ petition challenging the constitutionality of the Citizenship (Amendment) Act, 2019. IUML’s primary objection was that this order seeks to implement the CAA 2019 in a roundabout fashion, even while the constitutionality challenge is under examination by the Supreme Court. The Union Government in its reply stated that the notification had nothing to do with the CAA, and merely allows for delegation of powers of registration and naturalisation under certain specific circumstances, to a class of ‘legal’ migrants. As on date, two other writ petitioners who challenged the CAA, have filed applications also challenging this order.

At Parichay, we have prepared a detailed brief on the May 2021 order. This brief sets out the contents of the May 2021 order, and its relation, if any, to the CAA 2019. To summarise, this brief argues the following:

  1. The CAA, 2019 exempts persons belonging to Hindu, Sikh, Christian, Jain, Parsi or Buddhist communities from Afghanistan, Pakistan and Bangladesh from falling within the definition of “illegal migrant” in Section 2(1)(b) of the Citizenship Act, 1955. We argue that this amended definition now allows even those without valid documents to apply for citizenship under the procedure laid down under May 2021 notification. However, this benefit is not available to similarly situated Muslim applicants.
  2. The May 2021 order significantly truncates the procedure for registration and naturalisation of citizens under Sections 5 and 6 of the Citizenship Act, but denies similarly situated Muslim applicants this benefit.
  3. The May 2021 order implements the amendment to the Third Schedule of the Citizenship Act, 1955 brought into force by the CAA, 2019. This amendment reduced the residency requirement for naturalisation under Section 6 from 11 years to 5 years for Hindu, Sikh, Christian, Jain, Parsi or Buddhist communities per se (without any requirement of claiming religious persecution) who come from Afghanistan, Pakistan or Bangladesh.
  4. The May 2021 order creates a distinction between applicants of Indian origin for the purposes of registration under Section 5, by retaining what is admittedly an onerous and difficult process of citizenship registration for Muslims of Indian origin, while easing the process for Hindus, Sikhs, Jains, Christians, Buddhists and Parsis of Indian origin.

    Most importantly, if the May 2021 order is purportedly in the interests of refugee protection, then it is time to consider the adoption of a non-discriminatory and inclusive refugee policy in consonance with India’s constitutional values.

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

Absence of Jurisdictional Fact of Application of Mind in the Reference

This research note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India.

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

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

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

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

  • The authority should be personally satisfied:

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

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

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

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

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

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

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

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

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

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

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

This research note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India.

  1. Relevant Statutes/Rules/Orders:

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

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

  1. Where the Foreigners’ Tribunal has passed an ex parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners’ Tribunal, it may, on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly.
    • The Proceedee may file an application to the Foreigner Tribunal within thirty days to review the decision of the Foreigners’ Tribunal claiming that he/she is not a foreigner and the Foreigners’ Tribunal may review its decision within thirty days of the receipt of such application and decide the case on merits.
    • Subject to the provisions of this Order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.”

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

Important Extracts on the Issue of Service:

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

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

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

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

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

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

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

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

Table of Cases

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

Challenging Ex Parte Orders on the Ground of Non-Availability of Legal Aid

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 edited by Sreedevi Nair.

We have seen how Foreigners’ Tribunals have repeatedly passed  ex parte orders declaring persons to be foreigners, and how such orders can be set aside. This research note will look into the challenging of ex parte orders on the ground that legal aid was not provided to the petitioners. This is especially relevant for the NRC process, where multiple individuals belonging to impoverished and marginalized sections of society have been left out of the NRC, and would have to challenge their exclusion. To do so, one would have to rely on legal services, which might not always be within the reach of those belonging to the aforementioned sections of society. This research note delves into the issue of legal aid, and looks at the intersection of legal aid and ex parte orders by FTs. Over the years, thousands of people in Assam have been declared as ‘foreigners’ through ex parte orders. Therefore, this research note will look into the setting aside of ex parte orders on the ground that legal aid was not provided to petitioners.

1. What is legal aid?

Legal aid means the provision of free legal services to any persons, who by virtue of some marginalization or disability, are unable to access legal services to carry on legal proceedings before courts and tribunals.

2. Legal Aid under the Indian Constitution

Article 39A of the Indian Constitution, a Directive Principle of State Policy (‘DPSP’), requires the state to:

…secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Article 39A has been read along with Article 21 of the Indian Constitution to hold that the right to legal aid is a necessary part of a just, fair, and reasonable procedure under Article 21 of the Constitution. (Hussainara Khatoon v Home Secretary, State of Bihar (1980 (1) SCC 98), and Khatri and Others v State of Bihar and Others (AIR 1981 SC 928)).

2.1 Important Cases

A. In Hussainara Khatoon v State of Bihar (AIR 1979 SC 1360), the right to free legal services was held to be a part of every accused person’s fundamental right under Article 21 and Article 39A. A procedure which does not make available legal services to an accused person, who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as reasonable, fair, and just. It was held that:

Article 39A emphasizes that free legal service is an inalienable element of ‘reasonable, fair and just’ procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal service is therefore, clearly an essential ingredient of ‘reasonable, fair and just’ procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services, on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.

B. In Madhav Hayawadanrao Hoskot v State of Maharashtra (1978 AIR 1548),the Supreme Court, speaking through J Krishna Iyer, held that the right to legal representation would apply to all cases, from the lowest to the highest court, where deprivation of life and personal liberty is in substantial peril.

 C. In Khatri and Others v State of Bihar and Others (AIR 1981 SC 928), the Supreme Court held that, “the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time.”Further, the Supreme Court held that the judicial officer has the obligation of informing the person that she is entitled to legal aid. It also held that: 

…it would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services… The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.

D. In Superintendent of Legal Affairs v Home Secretary, State of Bihar (1979 AIR 1369), the Supreme Court held that it is always the duty of the court to see and inform the accused that she has a right to legal service, even if she does not ask for the same.

E. In Sukh Das v Union Territory of Arunachal Pradesh ((1986) 2 SCC 401), the Supreme Court held that the absence of legal awareness must be taken into consideration and that the onus is on the state to pro-actively inform the person facing deprivation of liberty that she has a right to free legal aid. It was observed:

It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis-oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advice in time and their poverty magnifies the impact of the legal troubles and difficulties when they come. Moreover, because of their ignorance and illiteracy, they cannot become self-reliant: they cannot even help themselves…. The result is that poverty becomes with them a condition of total helplessness. This miserable condition in which the poor find themselves can be alleviated to some extent by creating legal awareness amongst the poor… It would in these circumstances make a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose.

F. In Gopalanachari v State of Kerala (AIR 1981 SC 674), it was held that it is well established that the state is under a constitutional mandate under Article 21 and Article 39A to provide a lawyer to an accused person if the circumstances of the case and needs of justice so requires, provided of course that the accused person does not object to the provision of such a lawyer.

G. In State of Maharashtra v Manubhai Pragaji Vashi and Ors (1995 SCC (5) 730), the Supreme Court held that the combined effect of Article 21 and Article 39A of the Constitution of India mandates that the state shall provide free legal aid by suitable legislation or schemes, or in any other way,to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. It was further held that the duty cast on the state to provide free legal representation under Article 21, read with Article 39A, cannot be whittled down in any manner, either by pleading paucity of funds or otherwise.

H. In Mohd. Hussain @ Julfikar Ali v NCT of Delhi ((2012) 9 SCC 408),and Ajmal Kasab v State of Maharashtra ((2012) 9 SCC 1), the Supreme Court applied the right of free legal aid to foreign nationals.

3. Claiming a right to legal aid before the Foreigner’s Tribunals

3.1. Legal entitlement under the Legal Services Authority Act, 1878

A notification dated 28 December 2018, bearing No. LGL 165/2018/7, issued by the Legislative Department, Government of Assam, stipulated that only a person with an annual income below three lakhs would be eligible for legal aid under Section 12(h) of the Legal Services Authority Act, 1987. Therefore, the FT members must inform any person who appears before the tribunal about their entitlement under this notification to receive free legal aid, prior to the initiation of any proceedings.

3.2. Failure to provide free legal aid renders the proceedings unjust, unfair, and unreasonable

The provision of legal aid is mandatory for any proceeding that has an impact on the life or personal liberty of any person, to qualify as a fair, just, and reasonable procedure, under Article 21. Therefore, proceedings before the FTs are equally bound by this obligation.

Proceedings before the FTs have been held to be sui generis,being neither civil suits nor criminal trials [Shariful Islam v Union of India, (2019) 8 Gau LR 322]. The FT is empowered to exercise the powers of a civil court under the Civil Procedure Code, 1908, as well as the powers of a Judicial Magistrate First Class under the Code of Criminal Procedure, 1973, in accordance with Paragraph 4 of the Foreigners (Tribunals) Order, 1964. Hence, it cannot be said that proceedings before the FTs are purely civil proceedings, where principles applicable to criminal justice are inapplicable altogether. The observations made in the cases which recognized the fundamental right to free legal aid must necessarily be extended to the process of citizenship determination. This is because, the finding that a person is not an Indian citizen results in restrictions upon a person’s right to life and personal liberty, given that such persons are to be detained or deported [See Paragraph 3(13) of the Foreigners (Tribunals) Order, 1964]. Further, even in rendering a quasi-judicial order, such as those rendered by the FTs, there must be compliance with principles of natural justice and fair trial under Article 21 of the Indian Constitution.

Additionally, those who are declared as foreigners under the reference procedure do not have access to an appellate mechanism. Instead, they may only approach the High Court in exercise of writ jurisdiction under Article 226, which has a limited scope of review. Thus effectively, there is no appeal from findings of facts from the FT. In this scenario, the failure of the state to extend free legal aid to persons at the FT stage would further violate the standards of fair trial under Article 21 of the Indian Constitution.

In Shariful Islam v Union of India ((2019) 8 Gau LR 322), a Division Bench of the Gauhati High Court observed that access to justice was a fundamental right of the persons against whom reference was made to the FTs.

3.3. Failure to provide free legal aid results in a denial of a ‘reasonable opportunity’

Paragraph 3(1) of the Foreigners (Tribunals) Order, 1964, requires that, “reasonable opportunity of making a representation and producing evidence in support of his case”, must be given to any person in proceedings before the FT. In Kanachur Islamic Education Trust v Union of India ((2017) 15 SCC 702), the Supreme Court had defined reasonable opportunity as being “synonymous to ‘fair hearing’, it is no longer res integra and is an important ingredient of the audi alteram partem rule and embraces almost every facet of fair procedure.”The failure to provide free legal aid and to inform the opposite party that she is entitled to free legal aid would result in the denial of fair hearing and thus, a denial of ‘reasonable opportunity’ required under Paragraph 3(1) of the Foreigners (Tribunal) Order, 1964.

3.4. Proceedings are vitiated in the absence of availability of free legal aid

The Supreme Court and various High Courts have repeatedly set aside criminal proceedings where legal aid was not pro-actively provided to the accused facing deprivation of her liberty. In Suk Das v Union Territory of Arunachal Pradesh ((1986) 2 SCC 401),the trial was held to be vitiated on account of a fatal constitutional infirmity (failure to provide free legal aid), and the conviction and sentence were set aside. Similarly, in Rajoo @ Ramakant v State of MP ((2012) 8 SCC 553), the Supreme Court set aside the High Court judgment upholding the conviction and remanded the case for re-hearing by the High Court after providing the accused an opportunity of obtaining free legal representation.

In Arjun Karmakar v State of Assam ((1986) 2 Gau LR 287),a Division Bench of the Gauhati High Court held that the appointment of a fresh lawyer on the date of trial was mere fulfilment of formality and no legal aid was actually provided. The High Court set aside the conviction and sentence, and directed a retrial in the case, while observing:

There is a marked tendency to take very lightly the procedure for providing legal aid to the poor. The poor are mute. They have no media, no means to express their pangs and agonies and therefore, with impunity they are provided with assistance but perhaps “no legal assistance by competent lawyer.” If it is the constitutional right of the poor to be provided with legal assistance, the assistance must be genuine, real and the best lawyers should be engaged, otherwise it might be said in the future that their constitutional rights were trampled by the judiciary. We say “caveat actor”. Let not posterity say that the poor were provided lip service or we shed crocodile tears in the name of legal aid.

The Gauhati High Court has also set aside proceedings under special legislations for the failure to provide legal aid. In Anurag Saxena v Ct S Damodaran, where the accused, a constable, was charged under section 10(n) of the Central Reserve Police Force Act, 1949, and sentenced to six months of rigorous imprisonment, the Gauhati High Court observed that:

Since the constitutional right of the accused has been deprived, it is necessary that free legal assistance should be provided to make the trial reasonable, fair and just. I am, therefore, of the view that in the instant case the accused is entitled to get legal assistance, if necessary, at State expense during the trial. Since no such assistance was given during his trial by the Magistrate-cum-Assistant Commandant, the denial of the same would render the trial non est in the eye of law as it was not reasonable, fair and just, and was hit by Art. 21. On this ground also, the judgment and Order of the learned trial Court cannot stand. However, I want to make it clear that each and every trial cannot be held bad for want of legal service and the Court may-judge and consider the case from all angles before arriving at any decision.

Therefore, in the absence of free legal aid, the High Court should set aside the ex parte order and remand the case to the FT for a re-hearing.

4. Plea for setting aside an ex parte order on the ground of absence of proper legal representation – Index of cases

4.1. Relevant Statutes/Rules/Orders

Paragraph 3C of the Foreigners (Tribunals) Order, 1964, provides for filing an application before the FT for setting aside an ex parte order within a period of thirty (30) days from the date of the said FT Opinion. The relevant extract is as follows:

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

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

(2) The Proceedee may file an application to the Foreigner Tribunal within thirty days to review the decision of the Foreigners Tribunal claiming that he is not a foreigner and the Foreigners Tribunals may review its decision within thirty days of the receipt of such application and decide the case on merits.

(3) Subject to the provisions of this Order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.”

4.2. Special/Exceptional Circumstances

The Tribunal can entertain an application for setting aside an ex parte opinion if it is satisfied as to the existence of special/exceptional circumstances for the non-appearance of the person. See the ratio in State of Assam v Moslem Mandal((2013) 3 GLR 402). It was stated in Para 91:

The Tribunals constituted under the Foreigners Act read with the 1964 Order have to regulate their own procedure and they have also the quasi-judicial function to discharge and hence in a given case the Tribunal has the jurisdiction to entertain and pass the necessary order on an application to set aside an ex-parte opinion, provided it is proved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding, reason for which was beyond his control. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the proceedee could demonstrate the existence of special/exceptional circumstances to entertain the same by way of pleadings in the application filed for setting aside the ex-parte opinion, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such an application at the threshold, if no ground is made out.

4.3. Table of Cases

S NoCase NameCitationOutcomeReasoning
  1.  Huran Nessa v Union of India  MANU/GH/0792/2018  Allowed  The proceedee was not aware that she was required to register herself with the FRRO in the stipulated time as her husband/father had passed away before conveying such important information. This constituted an exceptional circumstance.
  2.  Samad Ali v Union of India  2012 (5) GLT 162, MANU/GH/0614/2012  Allowed  The proceedee being an illiterate and poor man submitted the requisite documents to the clerk, who assured him that they will be admitted. He was of the bona fide beliefthat there was no need for him to attend the proceedings after that. The ex parte order was set aside.
  3.  Narayan Das v State of Assam  MANU/GH/1139/2017  Dismissed  The proceedee being wholly dependent on his lawyer and that being the reason for his non-attendance was not considered a special circumstance.
  4.  Anowara Begum v State of Assam and Ors.  2017 (3) GLT 104, MANU/GH/0350/2017  Dismissed  The appellant was an illiterate person and suffered from acute poverty. After submission of the written statement, she was told by her lawyer that she would be informed as and when her presence was required. Along with the written statement, the lawyer did not enclose the relevant documents handed over to him by the appellant. The written statement also did not disclose the case of the appellant and no steps were taken by the lawyer to produce her witnesses. But these contentions were held to be contradictory and untenable. It was held that FT proceedings are not to be taken so lightly.  
  5.  Jakir Hussain v Union of India  2016 (5) GLT 319, MANU/GH/0612/2016  Dismissed  Being misled by people due to illiteracy and ignorance as grounds for non-appearance were rejected.  
  6.  Asmul Khatun v The Union of India and Ors.  MANU/GH/0794/2016  Dismissed  The petitioner was an illiterate lady and was not well-versed with court procedures. Due to wrong advice given by people, she did not attend the proceedings. This reason was not accepted.  
  7.  Idrish Ali (Md.) and Ors. v Union of India and Ors  2016(3) GLT 886, MANU/GH/0360/2016  Dismissed  The petitioners being illiterate and ignorant about the court procedure relied upon the engaged counsel, and as he did not provide proper guidance to the petitioners about the procedure of the case, they could not appear, and the case was decided ex-parte. The High Court held that it was not the case of the petitioners that they approached their engaged counsel after filing of the case and he suppressed the result of the case etc. Such a casual approach by the petitioners cannot be held as an exceptional circumstance which prevented them from appearing before the Tribunal.

Challenging Ex Parte Orders – Special Circumstances

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. It has been edited for clarity by Sreedevi Nair.

Ex parte orders are delivered without the presence of the accused in the Court/Tribunal. Ex parte orders are extremely significant in the context of Foreigners’ Tribunal (‘FT’) proceedings in Assam. It has been reported that since 1985, nearly 64,000 people in Assam have been declared as ‘foreigners’ through ex parte orders. They often become aware of the ex parte orders against them only when they are apprehended by the border police to be sent to detention centres. However, the Foreigners (Tribunals) Order, 1964, provides for a mechanism to set aside an ex parte order. Additionally, Tribunals can also accept applications to set aside ex parte orders in case they are of the opinion that certain special/exceptional circumstances led to the applicant being unaware of the proceedings. This research note studies the mechanism for setting aside an ex parte order and mentions the relevant cases where ex parte orders were set aside due to special/exceptional circumstances.  

I. Relevant Statutes/Rules/Orders

Paragraph 3C of the Foreigners (Tribunals) Order, 1964 provides for filing of an application before the FT for setting aside an ex parte order within a period of 30 days from the date of the said FT Opinion. Rule 3C of the Foreigners (Tribunals) Order, 1964, is as follows:

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

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

(2) The proceedee may file an application to the Foreigners Tribunal within thirty days to review the decision of the Foreigners Tribunal claiming that he is not a foreigner and the Foreigners Tribunals may review its decision within thirty days of the receipt of such application and decide the case on merits.

(3) Subject to the provisions of this Order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.”

II. Special/Exceptional Circumstances

The Tribunal can entertain an application for setting aside an ex parte opinion if it is satisfied as to the existence of special/exceptional circumstances for the non-appearance of a person. State of Assam v. Moslem Mandal [(2013)3 GLR 402 at para 91 [Full Bench]] dealt with such special/exceptional circumstances:

“The Tribunals constituted under the Foreigners Act read with the 1964 Order have to regulate their own procedure and they have also the quasi-judicial function to discharge and hence in a given case the Tribunal has jurisdiction to entertain and pass necessary orders on an application to set aside an ex-parte opinion, provided it is proved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding, reason for which was beyond his control. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the proceedee could demonstrate the existence of the special/exception circumstances to entertain the same by way of pleadings in the application filed for setting aside the ex-parte opinion, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out.”

III. Cases Dealing With Special/Exceptional Circumstances

S NoCase NameCitationOutcomeReasoning
1.Taher Ali v. Union of IndiaWP(C) 5608/2019AllowedMissing a single hearing cannot be grounds for an ex parte order.
2.Habibur Rahman v. Union of IndiaWP(C) 8564/2019AllowedWife’s death constitutes exceptional circumstance to set aside an ex parte order.
3.Samsul    Hoque    v. Union of IndiaAIR 2018 Gau 157 MANU/GH/ 0778/2018AllowedRiots in Mizoram (which was the appellant’s place of work) prevented him from attending court proceedings.
4.Huran    Nessa    v. Union of IndiaMANU/GH/0 792/2018AllowedThe proceedee was not aware that she was required to register herself with the FRRO within the stipulated time, as her husband/father had passed away before conveying this important information to her. This constituted an exceptional circumstance.
5.Bahej Ali v. Union of India2018(2) GLT 837 MANU/GH/ 1032/2017AllowedDue to the long pendency of reference (23 years), and the wife of the proceedee having passed away, the ex parte order was set aside.
6.Samad Ali v. Union of India2012(5) GLT 162 MANU/GH/ 0614/2012AllowedThe proceedee being an illiterate and poor man, submitted the requisite documents to the clerk who assured him that they would be admitted. He was of the bona fide belief that there was no need for him to attend the proceedings after that. The ex parte order was set aside.

Proving Documents When the Original Author Is Not Available

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. It has been edited for clarity by Sreedevi Nair.

Bureaucratic exercises to determine citizenship are usually heavily reliant on documentation. The process to prepare the National Register of Citizens (‘NRC’) has been no different. For a person’s name to be included within the NRC, the applicant would have to submit documents such as land and tenancy records, board/university education documents, citizenship certificate, amongst others. Applicants would also be required to prove the validity and veracity of the documents they submit. This has to be done by examining the author or the issuing authority of the document, who would have to testify as to the veracity of the documents. However, often, the author of the document is not available for examination, for a variety of reasons. Problems could also arise in a situation where the documents are quite dated. Issues such as these could lead to dire consequences, such as the particular documents being rendered inadmissible as evidence, thereby jeopardizing the applicant’s claim of citizenship. In an analysis of 787 orders and judgments of the Gauhati High Court, it was found that one in two people were declared to be foreigners because the issuing authority/author of the document failed to appear before the Foreigners’ Tribunal and testify that the documents were genuine. Considering these severe consequences, it becomes important to analyse the legal provisions that can be used to prove a document when its author is not available to testify to its genuineness. This research note analyses the legal provisions which might help in proving documents whose author isn’t present. It also looks at the presumption for documents which are over 30 years old and objections regarding the mode and manner of proof of documents.

A. Proof of execution/genuineness of a document

Section 67 of the Evidence Act read with Section 45 and 47 talk about the proof of execution or genuineness of a document. This requires the identification of the handwriting/signature of the author of the document. This can be done by bringing the author of the document or any other person who witnessed the author signing/writing out the document, or who is generally familiar with the author’s signature/writing.

This can also be proved by circumstantial evidence, including the form in which the document was prepared and comparing that to other documents prepared by the same author or as a series in a regular correspondence or other internal clues about the genuineness of the document (e.g.: symbols/marks).

The original author of the document is not required to be present in court to prove a document and its contents. The proof of the truth of the contents of a document can be proved by any person who can vouchsafe for the truthfulness of those facts.

The following cases deal with the proof of documents:

  1. Mobarik Ali Ahmed v. State of Bombay, 1958 SCR 328 : AIR 1957 SC 857 : 1957 Cri LJ 1346 [Supreme Court – 4 judge bench]

In this case, the appellant relied upon certain letters, most of which were purported to bear his signature. A few of those signatures were admitted to by the appellant. There were also a few letters without signatures. Both the complainant and Jasawalla (a commission agent who was in correspondence with the appellant) speak to the signatures on the other letters. The objection of the learned counsel for the appellant was that neither of them has actually seen the appellant write any of the letters nor are they shown to have such an intimate acquaintance with his correspondence so as to enable them to speak to the genuineness of these signatures. The learned trial judge, as well as the learned judges of the High Court has found that there were sufficient number of admitted or proved letters which might well enable Jasawalla and the complainant to identify the signatures of the appellant in the disputed letters. They also substantially laid stress on the contents of the various letters, in the context of the other letters and telegrams to which they purport to be replies, and which form the chain of correspondence, as indicating the genuineness of the disputed letters. The learned counsel objected to this approach on a question of proof. However, the Court did not agree to this objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document.

This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position, both, with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject matter of the chain of correspondence, to speak to its authorship. In an appropriate case the court may also be in a position to judge whether the document constituted a genuine link in the chain of correspondence and thereby determine its authorship.  In this case, the Court refused to hold that the approach adopted by the lower courts in arriving at the conclusion that the letters were genuine, was open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived at. However, the Court did not look into this matter.

  1. Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80 [Supreme Court – 2 judge bench]

There existed a dispute between the parties, during the course of which letters and cables were sent. It was urged by the respondents that even if the Court proceeds on the assumption that the letter and the cable were received, it was not open to this Court to look into the contents of the letter and the cable. This was because the contents were not proved, as the Managing Director of the appellant Company who was supposed to have signed the letter and the cable had neither entered the witness-box nor filed his affidavit proving the contents thereof.

Reliance was placed on Judah v. Isolyne Shrojibasini Bose [AIR 1945 PC 174: 1945 MWN 634: 26 PLT 279]. In that case, a letter and two telegrams were tendered in evidence and it was observed that the contents of the letter and the telegram were not the evidence of the facts stated therein. The question in that case was whether the testatrix was so seriously ill as would result in impairment of her testamentary capacity. To substantiate the degree of illness, a letter and two telegrams written by a nurse were tendered in evidence. The question was whether in the absence of any independent evidence about the testamentary capacity of the testatrix, the contents of the letter could be utilised to prove want of testamentary capacity.  The Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence.

Mere proof of the handwriting of a document would not be tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue, mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.

But in this case, Bhikhubhai Gourishankar Joshi, who filed an affidavit on behalf of the appellant, had referred to the averments in the letter and the cable. He was a principal officer and constituted an attorney of the appellant company. The Court established the truth of the averments made in the letter on the basis of the fact that even after the receipt of the letter and the cable were admitted or proved, and the fact that even after the dispute arose, but before the suit was filed, the respondent did not make any overt or covert references to the arbitration agreement, in the correspondence between the parties. The truth of the averments was also established on the basis of the failure of the respondent to reply to the letter and the cable controverting to the averments made therein, in the correspondence that ensued. The Court held that the averments contained in the letter and the cable were satisfactorily proved.

  1. Rami Bai v. Life Insurance Corporation of India, AIR1981MP69, 1981MPLJ192 [Madhya Pradesh High Court – Division Bench]

In this case, it was held that Section 67 of the Indian Evidence Act does not lay down any particular mode of proof for proving that a particular writing or signature is in the hand of a particular person. Thus, the signatures may be proved in any one or more of following modes:

  1. By calling the person who signed or wrote a document;
  2. By calling a person in whose presence the documents are signed or written;
  3. By calling handwriting expert;
  4. By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written;
  5. By comparing in court, the disputed signature or handwriting with some admitted signatures or writing;
  6. By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it;
  7. By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person. A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e. g. by the scribe who signed on behalf of the executant;
  8. By other circumstantial evidence.
  1. Dhar and Co v. Sib Narayan Singh, 59 Ind. Cas.188; MANU/WB/0195/1920 [Calcutta High Court – Division Bench]

In this case, it was held that where an executant denies that he wrote a document, the ordinary mode of proving the execution is by calling someone who saw such person write, or who knows his handwriting. This is only one of the modes of proving the document.  In this particular case, there were several papers on record which bore the admitted signatures of the respondent  and it was held that the Court could have compared the signature on the letter with those signatures.

B. Presumption for documents over 30 years old

Section 90 of the Indian Evidence Act allows a court to raise a presumption as to the genuineness of a document that is over 30 years old and is produced from the proper custody of the person who would normally be in possession of such a document in the usual course of things. In such a case, the author of the document does not need to come to court and identity the document or his handwriting, etc.

The following are some cases dealing with Section 90 of the Indian Evidence Act:

  1. State of A.P. v. Star Bone Mill and Fertiliser Company, (2013) 9 SCC 319 : (2013) 4 SCC (Civ) 444 : 2013 SCC OnLine SC 176 at page 325 [Supreme Court – 2 judge bench]

Section 90 of the Indian Evidence Act is based on the legal maxims: nemo dat qui non habet (no one gives what he has not got); and nemo plus juris tribuit  quam ipse  habet (no one can bestow or grant a greater right, or a better title than he has himself). This section does away with the strict rules, as regards the requirement of proof, which are enforced in the case of private documents, by giving rise to a presumption of genuineness, in respect of certain documents that have reached a certain age. The period is to be reckoned backward from the date of the offering of the document, and not any subsequent date i.e. the date of decision of suit or appeal. Thus, the said section deals with the admissibility of ancient documents, dispensing with proof as would be required, in the usual course of events in a usual manner.

  1. Desh Raj v. Bodh Raj, (2008) 2 SCC 186 : (2008) 1 SCC (Civ) 498 at page 197 [Supreme Court – 2 judge bench]

This case involved a dispute between Desh Raj (appellant) and Bodhi Raj (respondent) as to the respondent’s caste, and whether he was entitled to contest elections from a seat reserved for Scheduled Castes. In this case, the High Court rejected two exhibits, Exts. PW 3-A and PW 3-B, on the ground that the date of Ext. PW 3-A was not clear and could be read as either 22-4-1966 or 23-4-1968. But neither of those dates correlated to Ext. PW 3-B, as that showed that the admission must have been made between 11-9-1967 and 4-4-1968. It is evident from Ext. PW 2-A that Bodh Raj left the primary school on 31-3-1967. The date on which the application for admission was registered was seen as “22.4.196­  ”. The Court had a doubt regarding the last figure in the “year” and had to determine whether it was ‘6’ or ‘7’ or ‘8’ as that would make the year 1966, or 1967, or 1968. Merely because there was difficulty in reading one figure in the date could not be a ground to refuse to accept Ext. PW 3-A. The said application submitted by

Milkhi Ram, containing his thumb mark, being a document more than 30 years old attracted the presumption under Section 90 of the Evidence Act. As Ext. PW 3-A gives the caste as “Tarkhan”, it has to be treated as clinching evidence. Ext. PW 3-B which was also produced from proper custody in pursuance of summons issued from the Court showed that Bodh Raj, son of Milkhi Ram, Tarkhan caste, belonging to Mohtli Village studied up to 8th standard. Here, the Court noticed that the evidence of the witnesses of both, the appellant and the respondent was that there is only one Bodh Raj, son of Milkhi Ram in Mohtli Village. Therefore, the Court held that there was no justification to hold that there were some irreconcilable differences between Ext. PW 3-A and Ext. PW 3-B and rejected both the documents.

  1. Laisangbam Bimol Singh v. Konsam Babulen Singh, 1999 SCC OnLine Gau 159: (2000) 3 Gau LR 389 : (2000) 1 Gau LR 457 at page 394 [Gauhati High Court – Division Bench]

As a general rule if a document is produced before a court its execution must be proved by a witness and if the document is required by law to be attested, its attestation must also be proved by some witness. Only when this formality has been observed can the document form part of the record and be looked into. If the documents produced in court are not proved, they cannot be relied upon. But there may be circumstances when the documents have been produced before the court long after they have been executed. The time elapsed between the execution and the production of document in the court may be so long that all the persons in whose presence the document was executed might have died. If the method of proof mentioned above is strictly to be followed in such cases, it could cause great hardship and a number of genuine documents would remain unproven. Section 90 of the Indian Evidence Act is a provision for this kind of a situation. This section is founded on necessity and convenience. Section 90 gives the court the power to draw a presumption about a document which is 30 years old. The conditions for presumption are as follows:

  1. The document must have been in existence for 30 years or more.
  2. It must be produced in court from proper custody.
  3. The document must be in appearance free from suspicion.
  4. It must purport to be in the handwriting of a person and should not be anonymous.

The period of 30 years is to be reckoned, not from the date upon which the deed is filed in court but on the date on which it has been tendered in evidence, when its genuineness or otherwise becomes the subject of proof. Generally, there is no presumption about the recitals in such a document. But in some circumstances a recital of consideration, legal necessity etc. may be presumed under Section 90. The presumption under Section 90 is rebuttable, but in such a case, the burden will fall on the defendant.

C. No objection as to mode and manner of proof taken at the appropriate stage

Irregularities or errors in the mode or manner of proof of documents must be taken at the stage of tendering the document into evidence and not at a later stage.

In the absence of the objection at the stage of tendering the document into evidence, the document cannot be assailed at a later stage on the ground that the mode or manner of proof was incorrect.

The following cases deal with objections as to the mode and manner of proof:

  1. RVE Venkatachala Gounder v. Arulmigu Visweswaraswami (2003) 8 SCC 752

In this case it was held that, if there is any objection to the evidence, it should be taken before the evidence is tendered.  Once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by this failure, the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence. There are two reasons for this.  Firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there. Secondly, in the event of a finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking the indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties.

  1. Gopal Das v. Sri Thakurji, AIR 1943 PC 83

This case pertained to a scenario where the objection to be taken was not that the document was   in itself inadmissible but that the mode of proof put forward was irregular or insufficient. The Court held that in such a scenario, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. It held that a party cannot lie by until the case comes before a court of appeal and then complain for the first time about the mode of proof.