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.

Interview with Aman Wadud

Aman Wadud is a practicing lawyer in Assam, where he provides ground-level legal services and support to those who are at risk of being stripped of their citizenship status, owing to the National Register of Citizens (‘NRC’) process. He appears before the Guwahati High Court and the Foreigners Tribunals in Assam, and has also argued before the Supreme Court of India. His voice has been crucial in highlighting the ethnic and religious prejudices in the adjudication of citizenship in Assam. Apart from his litigation practice, Aman was heavily involved in the NRC process which involved travelling across Assam to spread awareness about the Court-monitored NRC. He has recently received the Fulbright-Nehru Master’s Fellowship for 2021-22, and hopes to continue to build on his work through this opportunity. In this interview, we discuss his work, citizenship adjudication in Assam, and the recent petition regarding the release of detainees in light of COVID-19.

This interview has been edited for clarity and length.

Devashri Mishra: I hope to discuss themes and questions which derive from your previous interviews, public appearances, talks delivered in colleges, your engagement with Parichay, and your work. But before any of that, congratulations on receiving the Fulbright-Nehru Master’s Fellowship for 2021-22! Can you tell us about what inspired you to apply for the Fellowship and how you believe it aligns with your work? 

Aman Wadud: Thank you so much for inviting me to do this. 

Earlier this year I was in the United States, where I was invited to speak at the Harvard India Conference at the Harvard Kennedy School. I was also invited to Harvard Law School, Columbia Law School, Yale Law School, Massachusetts Institute of Technology. I met a lot of professors, scholars, lawyers, and I ended my trip with testifying before the United States Commission on International Religious Freedom Hearing on Citizenship Laws and Religious Freedom, where I was a witness. Through this trip, I realized that an advanced degree in the United States will help my cause, widen my perspective and enrich my knowledge on International Human Rights Law, and comparative constitutional law. I want to understand how citizenship is defined in different constitutional settings and the application of citizenship laws. The jus soli concept came into being in the United States through the 14th Amendment in 1868, almost 150 years ago. The law has not changed till now, and anyone born in the US is a citizen by birth. Although when our republic was founded, citizenship was granted on the basis of the principle of jus soli citizenship, this slowly got diluted into the principle of jus sanguinis. This was still further diluted in the  Citizenship (Amendment) Act, 2003 and now, both parents are required to be Indian citizens. Since my work is centred around citizenship law, and I work before the Foreigners Tribunals (FTs), and High Court, I think that an LL.M. with a focus on human rights and comparative constitutional law will benefit my cause. Apart from my litigation, I’m also involved in advocacy work on statelessness. Around 135,000 people have already been declared to be foreigners in Assam and have been rendered stateless, along with their family members. Considering that most of my cases are pro bono, this prestigious Fellowship will allow me to study as it covers all basic expenses and will additionally provide me a small stipend. The network that I will build through this Fellowship will help me with my work as well. 

DM: Absolutely, and I think we’re all eager to see how your work carries forward after your stint in the US! We were extremely happy to hear this news here at Parichay, and we’re certain you’ve been getting similarly warm reactions from everywhere. There have been a few articles and social media reactions which indicate that you’re one of the first North-East Indians to receive this Fellowship – is this true? 

AW: Actually, I’m only the second North East Indian to receive this Fellowship in international legal studies, the first was Babloo Loitongbam from Manipur who received this Fellowship in 2004, sixteen years ago! In this category of legal studies, I’m the first from Assam. In terms of the response I’ve received, I’m overwhelmed. Look, to apply for this Fellowship, you need 3 years of experience, and I’ve had 10 years of experience and I’m deeply involved with the cause of fighting citizenship cases. I must have the blessings of a lot of people that I get so much love for my work. Over the years, because of the citizenship cause becoming a movement, I have received many calls and emails, inviting me to speak at several events. That’s probably why people relate with me, and maybe even because I use my Twitter handle quite effectively in furthering my cause. We have to keep in mind that no one was speaking for the cause of citizenship, and it only became fancy to do so only when the NRC list was released, and again when the CAA protests broke out on a national level. Before that, no one spoke about it. I have been working on this since 2014, and continuously speaking about it, possibly that is why people are emotionally related to me. In Assam, I think people know me because cases of the disadvantaged are referred to me from almost every sub-division of the state, and I’ve fought all these cases. These cases have taken me to many places in Assam, and I also travel for meetings and legal awareness, and for training lawyers here. That way, I know a lot of people and a lot of people know me! I’ve been working sincerely, and working really hard, and so by the grace of God, that may be why many are able to relate with me. I’m overwhelmed by the love and wishes I’ve received over the last few days!

DM: What you said about the rise in the debate around citizenship post the NRC coming about, and more so when the CAA was passed, is a very visible development, even in academic circles in law schools. The conversation around citizenship caught on significantly at the national level only recently, and it seems to be on an exponential rise. How do you think this development is seen by those living this reality everyday?

AW: In law schools, people have started taking interest in this. I’ve spoken to professors who admit that they used to skip the citizenship provisions while teaching constitutional law, and would skip to other chapters. Most of them did this because it seemed unimportant at the time. But now, it has become a practical, and important aspect of constitutional law, even in teaching, and it is no longer something we can take for granted. Perhaps they thought it could never be questioned but finally, we know that there can be a process where everyone may have to prove their citizenship. And that is probably why the interest has increased. I wish people had taken cognizance of what is happening in Assam, which has been happening for a long time. If you go to Economic and Political Weekly you will find articles on Assam, otherwise hardly there was any writing, however, several scholars such as Anupama Roy, who are authorities in the field, have written a lot on the subject. But it has remained a relatively minor field in academics, and before the NRC or CAA debates, a citizenship issue was not considered fancy enough to discuss. 

It is regrettable that people did not give adequate attention to the citizenship crisis in Assam, possibly many lives could have been saved if they had. As you know, detention centers in Assam started in 2009, around 10 years ago, where people were being detained indefinitely. Finally, in 2018, Mr. Harsh Mander filed a petition before the Supreme Court, which reduced the period of detention to three years and it brought an end to indefinite detention. Thirty people have died in the last three years. If enough interest had been given to these issues by professors, academics, and students, possibly it would have made a huge difference to this number. But, I’m happy people are finally paying attention.

DM: To go back a little to your mention of your trip to the US earlier this year – particularly your witness testimony during the Hearings at the US Commission on International Religious Freedom. You spoke about how marginalised groups are adversely affected by the citizenship determination process, especially because many of them do not have documents. Can you tell us a little more about why marginalised groups struggle to provide documentary evidence of their citizenship?

AW: The nature of proving citizenship is such that it is entirely dependent on documentation. Because there is a prolonged problem of citizenship in Assam, the Bengali Muslim community, especially, has always been very careful about documentation. 

Firstly, the primary document is the Voter List, but since most people accused of being ‘illegal migrants’ are illiterate, there are often anomalies in the names in the Voter List. There are inconsistencies in titles especially for Muslims, the father could have the title Ali, while the son’s title is Ahmad, but this is not a concern for Muslims. But for Hindus, the title remains constant, except for women whose title changes upon marriage. So the Voter List has anomalies with age and name. 

Secondly, there is a huge problem of erosion in Assam. Every year, around 800 hectares of mainland is eroded by the Brahmaputra and Barak rivers. People become homeless and shift from one place to another, and they have to record their name to the village they move to. So, there is a different Voter List for their original home, and a different one in the village they have shifted to. For example, if the person’s name is Amjad Ali, the Tribunal may say that the Amjad Ali names on both Voter Lists are different and some other Amjad Ali has been picked up, especially if there is a difference in name and age which happens often owing to typographical or clerical errors. This causes a lot of problems for people who migrate, as the Tribunal is given more reason to doubt the veracity of the evidence. 

It is not only erosion, but because these are poor people, they do migrate for their livelihood, although this group constitutes a lesser number of people and those affected by river erosion are much more.

Thirdly, women are another vulnerable group in this context. Women get married early in Assam since the minimum age is 18 years now (earlier it was 21 years). They vote only after marriage because of being married at around the age of 18 itself, and they do so in their matrimonial home and not in their parental home. This is true for almost every woman who is accused of being an ‘illegal migrant’ in my experience, I have hardly come across any woman whose name is recorded with her parents on the Voter List. Thus, a woman’s name is usually recorded with the husband in the Voter List. This is how women lose the most important document to prove their citizenship, as the voter list is a public document which is not required to be proved by the issuing authority. So, a brother who comes to depose as a defense witness, can prove his citizenship as defense witness because of being able to prove a relationship with their father, but the sister is not able to do so, whose citizenship  is being questioned as she does not have documents to prove it. This is the most important problem here in documentation for proving citizenship. Apart from Voter List, a woman can rely on Gaon Panchayat certificates, school certificates, nikah namahs – which are all private documents. There are also jamabandi certificates which can be relied upon but those are rare since these are poor people, who do not generally part with their land, and especially not to give to their daughters or sisters. This is a big problem in every society, that women do not receive land. If they do, land documents are reliable documents , but need to be proved by the issuing authority. The bottom line is that if their names are not on the Voter List with parents, it is difficult to prove citizenship before the Tribunals. If a seasoned lawyer is approached with a woman’s case, they will immediately say it’s a bad case, or refuse to take the case. This is bad, and of course they should not do this, but they also think that this will be a difficult case so they refuse because of the absence of documentary evidence. They could rely on the deposition of relatives, under Section 50 of the Evidence Act, but in practice , this does not happen because oral evidence is hardly relied upon by the Tribunal. Even if the father himself comes to testify, the Tribunal says that oral evidence is not enough to prove citizenship. Now, with NRC, children’s documentation is also weak as a result, and I fear that they may become yet another vulnerable group in citizenship cases.

DM: So when those accused of being ‘illegal migrants’ are ‘declared foreigners’, they are taken to detention centres, which you mentioned earlier. You recently approached the Supreme Court (‘SC’) in a plea to release persons ‘declared foreigners’, under the Foreigners’ Act, 1946, from the detention centres in light of the COVID-19 pandemic. What are your thoughts on the role of the SC in releasing people stuck in detention centres throughout the COVID-19 lockdown? Was the Supreme Court’s decision and the administrative response as you and your team expected when you filed before the Court?

AW: The SC in regard to detention and citizenship matters, is not as sympathetic as it should be. We filed our petition because the Court had already taken up a suo moto case with regard to decongesting the prisons in the wake of the COVID-19 pandemic. We felt that since detention centres are located in prisons, detainees should be released on the same basis as prisoners being released to decongest prisons. So we filed this petition praying that all detainees should be released unconditionally, without the earlier conditions imposed by the Court, i.e, completion of three years in detention, and requirement to submit two sureties of INR 1 Lakh each upon release, and appearance before police station every week. Since these are very harsh conditions, we argued that being a ‘declared foreigner’ should not attract such penal consequences. Persons are purportedly detained for the purpose of deportation only, but since March 13, 2013, which is when the formal deportation procedure began, only four ‘declared foreigners’ have been deported as per the Assamese Government’s affidavit before the Supreme Court. So if they cannot be deported, why detain them? Thus we prayed that these conditions be done away with, and that everyone be released in wake of the Coronavirus Pandemic.

The Hon’ble Supreme Court was pleased to reduce the detention period from three to two years, and reduce the financial bond to be furnished to INR 5000. This is a welcome Order, and 350 people have already been released. People like Minara Begum, who was detained in 2010, could not be released earlier because of the onerous requirements of the financial bond to be furnished by sureties in the 2019 Order which reduced the detention period to three years. When the requirements were reduced this year, a lot of people came forward with INR 5000 and detainees could be released. When Minara Begum was detained in 2010, her daughter was only 15 days old, she grew up in the detention centre with her. Their release and numerous others’ release was secured because of the Hon’ble Supreme Court’s order in our petition. But, I very humbly disagree with the Order in the sense that I think it is unreasonable to even detain people for two years if there is no scope for deportation which is the stated purpose of detention. Persons released after three or two years, with the surety, still have to appear before the police station. Everyone can be asked to meet this condition of appearing before the police station. Surety can be taken to meet this requirement, and instead, the surety requiring these huge financial bonds can be dispensed with, and I am certain many will come forward to give surety as well. As I said, in the last three years, 30 people have died in the detention centres which anyway have pathetic conditions. Detainees are forced to live there without having committed any crime, which takes a huge toll and they are under huge mental trauma. I agree that it is a favourable decision and I bow down to the decision of the Hon’ble Supreme Court, but I had hoped the entire system of detention would be dispensed with. I would have been happy if each and everyone had been released. 

DM: In a recent interview, you spoke about the pressure on bureaucratic and judicial officials to manufacture foreigners where none exist. This raises a larger question of how the determination of citizenship should ideally take place. What are some of the best practices/legal principles that we should incorporate into our system, and are there jurisdictions which we can look to for guidance?

AW: Firstly, I wonder if there is even a citizenship determination process in other countries which is comparable to the way it is determined in India. I’ve researched a lot, but there is no process that can match the way it is done here. 

Secondly, the basic problem is that while all tribunals in India are set up under a legislation, Foreigners Tribunals are set up under an Executive Order. The foundation itself is wrong. In the 1964 Order too, there is a requirement for members to have judicial experience which has slowly been relaxed, and altogether dispensed with. Initially, lawyers with 10 years of experience were appointed, then in 2019 lawyers with 7 years of experience were appointed. I’ve come across several recent appointees who only enrolled as lawyers 7 year ago and many of them have not even been practicing lawyers. Many appointed to the Tribunal do not have adequate experience to deal with the most important right in the Constitution – citizenship rights. 

Citizenship is the most important constitutional right, and as it is often called, and it indeed is, the ‘right to have rights’. If you take away citizenship, you don’t have any rights. Although the Constitution of India states that Article 14 and 21 are applicable to everyone, in practicality this is not true. For eg — ‘declared foreigners’,  do not have any rights despite this constitutional guarantee. They are stripped of all possible rights to live a normal life. If you look at the composition of the Tribunals, it is easy to understand the problem, many members do not even know how to write an opinion, they are not familiar with fair trial procedures, principles of natural justice or the basic principles of the Evidence Act. Although the Hon’ble Gauhati High Court selects them, they are the appointees of the Home Department of the Government of Assam. In 2017, there were remarks in the performance appraisal reviews of these members, which said their performance was unsatisfactory only because they could not declare more people as foreigners. If members declare more people as Indian, then their performance is considered unsatisfactory. All Tribunal members are on a contractual basis of two years, and those selected in 2019 are on a contract of 1 year. Thus, maintaining a job through renewal by the Government requires that the rate of declared foreigners be high, because the Government is engaged in vendetta politics and they are hell bent to prove more people as foreigners. The report by Arunabh Saikia on Scroll where Tribunal members refer to citizenship as ‘wickets’ and how many ‘wickets’ each has taken — that’s how casually they look at it, and that’s how many members decide cases as well. 

Recently, in the Dhubri district of Assam, they replaced all the Muslim government pleaders with non-Muslim government pleaders. There should at least be some pretense of following due process, or of being fair, but the Government is brazen. There should be some representation, especially in Dhubri district where Muslims are the single-largest majority but they have all been replaced. It is clear that the government wants this process to work in a way that does not meet the standard of a fair trial. I can say this with full responsibility and conviction, that this process does not meet the fair trial standard. The investigative process makes a mockery of the guarantees in the Constitution because a fair investigation is part of the right to a fair trial. When I speak of the investigative process, I become speechless because there is no investigation to speak of, and anyone can be picked up randomly and be accused of being an ‘illegal migrant’. For example, my client Mohammad Sanaullah, who is an ex-army veteran who served the country for 30 years, who was in Manipur in a counter-insurgency operation, Hifazat, when the forged ‘confessional statement’ of  him of being an ‘illegal migrant’ was signed. Hifazat means security, and when he was securing his country, he was accused of being an illegal migrant by the Assam Border Police. I shudder at the thought. This is why I really wish that the academics, scholars, and law schools, who have taken so much interest in the citizenship issue now, had done so earlier. Injustice anywhere is a threat to justice everywhere, and because people did not speak up when injustice was happening in Assam, it is haunting us all over the country. Every person who believes in the rule of law, and the theory of justice, must speak out against the gross injustice happening in Assam. This is not what the founders of India envisaged, and our Constitution says that all are equal before the law, and that the rule of law is supreme. These kangaroo courts should not exist because they do not follow due process. As a responsible citizen, I feel very sorry that no one did enough to raise their voices. 

DM: It is of note though that while the rest of the country, and the world, did not pay attention to the issue in Assam keenly, you and other lawyers have continued this fight at the FTs there. As a young lawyer, what has been your experience working in the FTs? Within the community of lawyers, how has your experience with the Bar Association, and others litigating before the FTs panned out? Did you have a mentor to guide you in this process?

AW: With regard to upholding the Indian Constitution, and inspiring me to become a human rights lawyer, I had two mentors. Firstly, Mr. Prashant Bhushan with whom I interned in the SC in my fifth year, in January 2010. In 2014, I met Mr. Harsh Mander as well. Both of them mentored me in that sense. But my inspiration to litigate in the field of citizenship specifically is owed to the fact that I’ve been accused of being a Bangladeshi myself, by my batchmate in secondary school. While studying law, I initially wanted to appear for UPSC, but I realized I would lose my voice. I wanted to speak out about what was happening. I realized I needed to tell the stories of how people of Indian soil are accused of being illegal migrants in their own motherland. They are abused and massacred in the name of being illegal migrants. Although we elect MPs and MLAs, they don’t speak about these issues. Our leaders and representatives should speak, because they have social and physical security, unlike me. I’m faced with threats to my life and my career but I continue to speak because I cannot compromise on what I believe. That’s why I gave up my dream of writing the UPSC exam, because I want to speak the truth and tell my stories. The day I stop speaking the truth, I will not be able to live with dignity. And it’s not just about my dignity, but the right of the persecuted and marginalized and voiceless people  to live with dignity, that is what keeps me going. It is a right that predates the Constitution. It is an inherent right, the Constitution and the Hon’ble Supreme Court through various judgements only confirmed the right to live with dignity. Any person born in any country, whether Stateless or legal or illegal, possesses rights to live with dignity (The word ‘illegal migrant’ itself is wrong, but it is the language of the Citizenship Act, which is why I’m using this term.)

Several lawyers have fought these cases, but it was just a case for most of them, and not a cause. In 2014, I started fighting these cases and I realized that most of the people who approached me were rickshaw pullers or thela walas who could not pay my fees. I realized that I belong to a privileged background, so I was not after money but the core of it was that I empathize with them. Empathy, not sympathy, because I saw myself in their position, because I know I could be one of them. When I was in secondary school, a friend called me ‘Bangladeshi’ so if instead of him, it had been the Border Police, they would have referred my case to Tribunal and I would be standing in the FT defending my citizenship. I saw myself in their place and I started doing this pro bono. In 2016, someone from my nani’s (maternal grandmother) place who knew that I practiced in the Supreme Court approached me. Moinal Molla had been detained for two and a half years by then, because of an ex parte order declaring him to be a foreigner. Both of his parents were declared Indians by the same FT. His writ petition and review petition were dismissed by the High Court and they had no money to go to the Supreme Court. 

We had a small group of friends then, and I told them that this was a good opportunity to help someone and simultaneously get the word out about detention centres in Assam, and the arbitrary process of FTs by which one can be declared foreigner ex parte. In 2014, the issue was an elephant in the room in Assam which no one wanted to talk about, and outside Assam, no one knew. It was, and still is, a taboo to appear for the defense in these cases at the FTs or HC, they think they will get branded in a certain way, sadly. One of my friends told me that she will give her zakat money, and another friend also came forward. Eventually, we landed up in the SC, and we briefed Mr. Raju Ramachandran about the case. The case got remanded to the FT in Barpeta, Assam, where I appeared 11 times and fought his case fully pro bono. He was declared an Indian and released after 2 years, 11 months and 29 days of detention. This story got out when notice was issued for the SLP by the SC, and eventually when he was released, it made big news! There have been subsequent cases of Mihir Biswas, Kismat Ali, Ashraf Ali, Mohd. Azmal Haque, and Sanaullah, which I fought and tried to publicise to bring the focus the issue deserves. At least people are talking about it, even jurists like Faizan Mustafa are writing about the FTs being kangaroo courts, and rightly so. Constitutional experts and jurists are speaking about this now, and I wish it had happened sooner. The blame also does lie on the civil society in Assam, which could not tell the world what is happening, and we had to start it. 

DM: There is often this narrative around the NRC, that there is political consensus on the need for this exercise, but its implementation has alienated people. Is it true that this consensus exists and if yes, could it have been done in a way that could have been fair and independent? 

AW: There was no such consensus about NRC from all groups of people – why should everyone’s citizenship be scrutinized? But then the SC ordered that the 1951 NRC should be updated in Assam, and since it was the Hon’ble Supreme Court’s order, we took it very positively. We thought that if at all there should be scrutiny, a Court-monitored process would be better than merely an Executive process. We wanted closure – how long will one group of people accuse another group of being illegal migrants? We thought that this issue must end; every election is fought only on this issue. In 2016, BJP fought and won the election only on this migrant issue. Hence, the Bengali Hindus and the Muslims took part in the process very actively. Plenty of lawyers, civil rights activists, and organisations travelled all across Assam to create legal awareness about how to fill up the form. I was also one of the privileged people who got to travel all over Assam, particularly the minority dominated areas, and I told the people I met, in each and every meeting, that this is a Court-monitored process so they should have faith in the Supreme Court of India. I assured them it would be a free and fair NRC, but the process turned out to be very harsh. There were several rounds of scrutiny, but people thought that “This is the last time going through this process, after this, do not accuse and abuse us as foreigners, let there be closure!” 

The Supreme Court quoted Shri Prakash Jaiswal’s statement before the Parliament about ‘5 millions illegal migrants’. Although, Shri Prakash Jaiswal himself withdrew that comment, this withdrawal was not recorded and the SC recorded only his first statement. After the process, only 1.9 million people were excluded. We found that many relatives, including my own cousins, were excluded from the NRC, which is how these numbers reached 1.9 million. But, in an Economic Times report, NRC authorities say that apparently names included in the NRC were deleted later on. In June, the NRC authorities issued another order for rectifying the Order which excluded people. What can be more outrageous than this? After excluding people from citizenship in an Order, they turned around to say that there are anomalies in that Order! Citizenship is not a petty thing. After the NRC list was out, when 1.9 million were excluded, the supporters of NRC began speaking against it. 

Today, we say – notify the NRC, and confirm it. There were 3.29 million people who applied for it, and 1.9 million have been excluded, so the others should receive the national identity card. That is the requirement under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. More than one year later, nothing has happened. Within a week, excluded people were supposed to receive rejection orders so that they could appear before the FT. The Guwahati HC selected 200 people to be appointed to the FTs in 2019 as I mentioned earlier, who are taking salaries of around INR 85,000 without doing any work, through taxpayers’ money. There is no issuance of notice because the very people who advocated the NRC found that their propaganda did not match the reality because allegedly there is ‘less exclusion’ so they do not accept this NRC. Now, the Home Minister says there will be another NRC in Assam, and the BJP government in Assam also says that they will scrap the NRC to hold another round of NRC, recently they stated they want re-verification. INR 1600 Crores were spent only by the Government in this exercise, which involved 55,000 Government employees, and these costs do not even include the costs incurred by the common people travelling across the State. People went through a lot of harassment during the process, and some even committed suicide for fear of losing their citizenship. How can you ask people again to produce documents in the name of re-verification? This would be a betrayal of the faith which people reposed in the Supreme Court when the Court ordered that the government update the NRC.

Devashri Mishra is a fifth-year B.A. LL.B. (Hons.) student at West Bengal National University of Juridical Sciences, Kolkata. She is a member of the Parichay Blog Team.