Interview with Oliullah Laskar

Mr Oliullah Laskar is an advocate who practices before the Gauhati High Court. He is part of the Barak Human Rights Protection Committee (BHRPC), a human rights organisation based in the Barak Valley in Assam. We speak to Mr Laskar about the difference between citizenship and immigration laws, the working of the Foreigner Tribunals, the problems with the NRC, and the tribulations of a lawyer who has fought cases before the FTs.

The interview has been edited for length and clarity.

Oliullah Laskar: Before I begin answering your questions, I would like to give you some context to the Foreigners Act, 1946 and its use as a legislation to determine citizenship. The Foreigners Act (Act) is not equipped to deal with the situation in Assam or across India, if the NRC is implemented across the country. Because the mischief that was sought to be addressed by the Foreigners Act is different from the situation at hand.

The earliest version of the extant Act was passed as an ordinance in 1942. It was amended to become the law that is presently in force —the Foreigners Act 1946.

The Statement of Object and Reasons of the Act calls it a war emergency legislation. During the World Wars, governments tended to be more stringent about their boundaries and had placed restrictions on the entry of foreigners and immigrants. So the context of the promulgation of the legislation was the World War. We have to examine the context and immediate use of the Act in order to understand its present ineffectiveness.

The Foreigners Act, 1946 was not meant to be a legislation to determine citizenship. There is a difference between citizenship and immigration laws. An immigrant is presumed to be a foreigner and on the basis of that presumption she is denied most rights that are otherwise available to a citizen. However, in a citizenship determination exercise, we are determining the rights of people who are presumed to be citizens and already being treated as such.. Therefore, there is a distinction between immigration laws and laws relating to determination of citizenship.

You will find this distinction being recognised in international law jurisprudence. Even agencies of the UN have affirmed that the burden of proof should lie on the State in citizenship determination procedures. But in procedures related to immigration, in most western countries, the burden of proof is on the alleged immigrant. This was discussed in the Sarbananda Sonowal case. But the Supreme Court failed to distinguish between the process related to identification of immigrants and that of citizenship determination exercises. The SC did not make a distinction between otherwise distinct phenomena and therefore it was ruled that the burden of proof in a citizenship determination exercise, like the NRC, should be on the person alleged to be the foreigner.

The categories of persons to whom the Act is applicable is directly related to the question of burden of proof. If we assume that any person can be tried under the Act, then we will find ourselves in an absurd situation — anyone can be accused of being a foreigner.

If anyone can be sent to the Foreigner Tribunals (FT) there will be no meaning of the voter list, casting your vote, forming the government.  If people who have elected the government are being sent to the FTs, what is the legitimacy of the government? At present, we are in this difficult situation because of our failure to distinguish between immigration laws and laws for determining citizenship.

Natasha Maheshwari: In 2019, the Office of the United Nations High Commissioner for Human Rights noted that in “nationality determination processes, the burden of proof should lie with the State and not with the individual”. Section 9 of the Foreigners Act, 1946 places the burden of proving citizenship on an individual. Do you think that the IMDT Act, which placed the burden of proof on the State, was more equipped to deal with the question of citizenship?

OL: Citizenship is a very important question. It is not only the question of a person’s rights but of his life as a member of civilised society. The life of his progeny also depends on his citizenship. So it is a very, very serious matter. In fact it is more significant than capital trials.

If we follow a standard of due process or abide by the rule of law rules then the procedure will be stringent. The procedure adopted should be as stringent as that of a criminal trial.

In cases where a person who already enjoys her rights as a citizen under a legal presumption, like having her name in a voter list, is alleged to be a foreigner, the burden of proof should lie on the person who questioned her citizenship status. But in cases where an alleged immigrant is asked to prove her citizenship, the burden of proof should lie on the immigrant herself.

Like the Foreigners Act, the IMDT Act also used a quasi-judicial procedure to determine citizenship. Citizenship should be determined through a trial conducted by a regular court of law, the burden of proof being on the shoulder of those who allege foreignness of the person who is otherwise legally presumed to be a citizen. The proof that is given should be beyond reasonable doubt. Quasi-judicial tribunals like FTs or IMDTs can deal with cases of people who have a legal presumption of being a foreigner like people overstaying the validity of their travel documents which are now being dealt with in criminal proceedings conducted by judicial magistrates. The tribunals, therefore, appear redundant.

NM:  In your opinion, what are some of the problems with the NRC?

OL: There are criticisms from both sides  i.e. advocates for the NRC and those who are against it. The advocates of the NRC say that many people who should not be in the NRC have been included in the list.

Though the NRC intended to detect illegal immigrants, the process was not limited to them. Every citizen of India living in Assam had to file an application giving proof of their citizenship. The burden of proof was on them.

How is the government examining the capacity to vote of the very people who elected them? This is the main problem with the NRC. The other problem is that Clause 3(3) of the Act states that certain persons can register as original inhabitants (OI) if the registering authority is satisfied that they are OIs. But there is no definition of the term OI or procedure for determining who they are. In practice, this clause is applied on the basis of linguistic and ethnic identity.

Another problem is the virtual exclusion of certain types of oral and documentary evidence from the NRC process. As per Section 3 of the Citizenship Act, 1955, people who are born in India before 1987 are citizens by birth.

However, in the NRC application form, there was no provision to claim citizenship by birth by producing a birth certificate. Several countries have restricted the right to claim citizenship, but the basic democratic principle is that a person born in a country has a right to claim citizenship.

However, there is another distinction —  if it is applied to immigrants whose country of origin is known and admitted then it is a different question. If a couple has immigrated from another country with their child and are now living in India with valid travel documents then maybe the country of origin can grant citizenship to their child. But if neither India nor the country of origin recognises the citizenship of the child, then the child will be rendered stateless.

With respect to the right of a person to stay in a country, the European Court of Human Rights, in the case of Hoti v. Croatia,  has ruled that a person who has lived in a country for a very long time cannot be thrown out. 

While India hasn’t ratified the two international conventions on statelessness, Article 21 can be read in a manner such that a person cannot be rendered stateless, because without citizenship one will not have any dignity. Statelessness is the absence of rights. Hannah Arendt has called it civil death. Therefore, Article 21 will prevent a person from being made stateless.

NM: The objective of the National Register of Citizens in Assam was to identify illegal migrants, a long-standing demand of the Assam movement, which found expression in Clause 5 of the Assam Accord and Section 6A of the Citizenship Act, 1955.  Do you think that the NRC has been successful in fulfilling this objective?

OL: I don’t know whether the NRC has failed in its objective but the rhetoric of illegal immigrants is questionable. There are no authoritative findings which prove that there are a large number of immigrants in Assam. The Supreme Court has relied on Governor S.K. Sinha’s report. However, what is the authority of a Governor to make such a report? He is a Governor not the Government.

He did it in his personal capacity and not as the head of the State of Assam. As a Governor does he have this authority? What was the methodology by which he arrived at these numbers?

The works based on census reports does not reveal a significant amount of illegal immigration from our neighbouring countries. There may be illegal immigration but not as much as has been made out to be by the S.K. Sinha report.

An independent enquiry on the question of illegal immigrants should be made and if the committee concludes that there are a large number of illegal migrants they should be deported to their country. But which country do you deport them to? If it is Bangladesh then you cannot do so unless the Bangladeshi government accepts them as their citizens.

In its judgment in Assam Sanmilita Mahasangha, the Supreme Court directed the Indian government to speak with their Bangladeshi counterpart to discuss deportation. However, this was not implemented. The acceptance of the Bangladesh government may depend on the process that India uses to detect illegal immigrants. If the process is agreed upon by both countries then if someone is found to be a Bangladeshi immigrant, the government will take them back.

There are many instances of people extending their travel visas and continuing their stay. Article 36 of the Vienna Convention on Consular Access requires the government to inform consular authorities about an arrest. If the Bangladesh authorities find that a person who has been arrested for overstaying their visa is a Bangladeshi citizen then they will take them back. The Kulbhushan Jadhav case, which was fought before the ICJ, dealt with the issue of giving consular access to a foreign national. And if consular access is not given, civil society organisations intervene and contact the government of the country from which the person originates.

In the paragraphs above, I am referring to cases in which immigrants are involved. But the NRC is not directly related to such immigrants; the NRC is a process to deprive people who have been living in Assam for generations together of their rights as a citizen.

Even the Prime Minister of India has assured Bangladesh that the NRC is an internal matter. This means there is no question of deportation — the NRC is simply an exercise to make people stateless.

Amnesty International India’s report titled Designed to Exclude shows that the FT members are pressured to declare people as foreigners. There is a process of assessment of the performance of the FT members.  Declaring more people as foreigners is considered an assessment of excellence. Comparatively, the members who declare less people as foreigners are considered to have performed poorly.

Most of the FT members are on contract and they are under tremendous pressure to declare as many people as foreigners as possible. Apart from this, the Gauhati High Court (HC) has generated a sort of jurisprudence on the foreigner tribunals. There are mainly two rules made by the HC (there is no legislative basis for them):

1. In proceedings before the FT oral evidence has no significance.

2. If a document bears an unauthorised impression of a national emblem then it is not admissible.

For establishing linkage, often, women produce a certificate issued by the elected local government (Panchayat president). Panchayat presidents function under Assam’s Panchayat Act. Under the Prevention of Misuse of National Emblem Act 2005, and the Rules made in 2007 there is a schedule enumerating the authorities who can use the national emblem. Panchayat presidents are not allowed to use the national emblem. But they continue to do so.

So when the certificate is produced by the Panchayat president saying that he knows of this person and that they are the son/daughter of so and so whose name appears in the 1971 voter list, this certificate of proof of relationship is not admitted. This is because it uses the national emblem. However, no Panchayat president is ever prosecuted for wrongful usage.

In India the only thing which is considered to determine admissibility of evidence is relevance. If it is relevant it is admissible (the latest judgment on the matter is the verdict of the 3 judge bench in the Rafale review case). If a document is obtained through  criminal or illegal means it is still admissible if it is relevant. But the HC ignores this rule when it comes to trials under the Foreigners Act, 1946

So the first rule excludes oral evidence and the second rule excludes the documents that are available to many people.

These rules make it easier for the FTs to declare people as foreigners.

In most cases people fail to establish relationships with their parents. Section 50 of the Evidence Act, which lays down the evidence that can be used to prove a relationship, is also ignored.

In some cases oral evidence is recorded but not discussed in the decision by the FT or HC. According to the HC oral evidence has no significance before the FT. By excluding oral evidence, the HC has also disregarded the Supreme Court’s decision in the case of  Lal Babu Hussein v. Electoral Registration Officer. While the judgment does not directly deal with the admissibility of oral evidence, it assumes the admissibility of all types of evidence before the court in citizenship matters. 

NM: Recently, at a lecture at the National University of Juridical Sciences (NUJS), you said that the NRC process is exclusionary and discriminatory towards women in general and women from marginalised communities in particular. Can you elaborate?

OL: In 2016, I was sitting in a courtroom in the Gauhati HC. The bench was dealing with challenges filed against FT orders. The Presiding Judge, who is now the CJI of Sikkim HC, Justice A.K. Goswami asked why most of the challenges to FT orders were filed by women.

It is simple — more women are declared as foreigners by the FT which is why more women come to the High Court. It was a general observation made by the Court so the lawyer arguing did not answer Justice Goswami. But the question remains.

Most people who are declared as foreigners belong to the poorest section of the society. These people are uneducated and don’t have a board exam certificate or a birth certificate which can be used to prove relationship with their parents which in turn proves their citizenship. Additionally, the registration of marriage, particularly in the Muslim community, was not compulsory. It was made compulsory by an SC judgment pronounced much later.  However, even after it was made compulsory, a marriage that is not registered is still valid. As a result, many women do not have marriage certificates. Lastly, though the law gives women the right to inherit property, in practice this does not happen in most cases. As a result, often, women are unable to produce documentary proof to establish a relationship, particularly with their fathers.

In the case of men, some of them study up to matriculation and have board certificates. Those who do not have board certificates have land documents on which they mutate their name in the place of parents. They can use this document to show their relationship with their father. Men also put their father’s name on the voter list.

Women are frequently married before the age of 18 (even after the Child Marriage Act was enacted in 2006). So a young woman who marries before attaining majority  cannot enrol herself in the voter’s list of her paternal home; thereby proving that she is daughter of her father. So she enrols her name after she attains majority. Since she is already married, she uses her husband’s name in the voter list and not her father’s. So, the voter list does not help her to prove her relationship with her father.

There are several other reasons why women are excluded from the NRC, most of them deeply rooted in patriarchy. I have also heard of cases where a woman, who has left her husband’s house because of a domestic dispute, gets a notice at her matrimonial home. Because of the domestic dispute, the husband does not communicate the receipt of the notice. As a result, an ex parte order is passed against her. 

The reasons I have mentioned are not exhaustive. If fieldwork is conducted there are many other reasons that will come up. For example, if a family receives a notice from an FT in the name of a woman then too much importance will not be given to it. This is because a woman is not thought of as a very important member of the family. Even if the family appoints a lawyer, they will look for a cheap lawyer and won’t make too much of an effort to collect the documents that are required.

NM: Persons excluded from the NRC were supposed to receive rejection orders by March. Thereafter, the appeals process would begin. Now, because of COVID-19 and the catastrophic floods, the rejection process has been paused. How do you expect the appeals process to proceed? And how has the pandemic affected the lives of the people whose citizenship is in limbo?

OL: I am not sure. I saw a statement attributed to the new state coordinator of the NRC or an official from his office saying that they were in the process of preparing the rejection orders. However, due to technical problems in the database of the information preservation system, the data needed to be re-entered. This process of re-entry of data will take a few months.

But this pandemic has devastated the lives of people;  people have lost their jobs and there is scarcity of means to attain a livelihood. So even if the appeals process starts after the pandemic ends, it will be very difficult for these people because they will still be struggling to sustain themselves.

NM: As someone associated with the Barak Human Rights Protection Committee, what do you think is the role of broader civil society in resolving the question of citizenship and migration in Assam?

OL: A few years back I tried to speak with people who were working with human rights groups to make a position on this issue. If by civil society, you mean the human rights community, I think these people should come together and take a clear position on these issues.

The other part of the civil society, that is, bar associations, employees associations, the leadership of whom are members of the dominant communities, are not bothered about what is happening to the people excluded from the NRC.

 Even the people who profess to work from a human rights perspective are divided on the issue on ethnic lines. But some groups — for example, some women’s right organisations have taken a stand on one or two issues. However, even they haven’t taken a collective position and dealt with the NRC issue as a whole.  If an initiative is taken to get these human rights organisations to work together it will be much better. 

NM: Several FT lawyers have spoken of harassment and stigmatisation that they face due to the nature of their work. To add to that, a 2017 performance appraisal report of the members of the Foreigner Tribunals evinced that members who had declared a greater number of foreigners were more likely to be retained of their services in contrast to those who had declared fewer foreigners.

As an FT lawyer who has contended with threats and is arguing before a tribunal that is potentially prejudiced, what has been your experience? What motivates you to continue taking up citizenship law matters?

OL: I don’t appear before the FT very often because my practice is primarily before the HC. So personally, I haven’t faced one which is remotely uncomfortable. But I have heard about this from other lawyers. The newspapers had also reported a case of a scuffle within the courtroom.

But there were two cases that I recently dealt with — an interlocutory application was filed in both the cases but the application was not taken on record. So the lawyer in the case contacted me. I advised him to approach the local bar association. A delegation of the bar association spoke to the tribunal member but the application was still not taken on record.  Our request was only for the member to take it on record, if he felt that it was not sustainable the tribunal could reject it by passing an order. Then, I filed a writ petition before the HC, which directed the tribunal to accept the application

This shows that some of the tribunals are hostile towards the lawyers and they don’t even follow the minimum rule of procedures.

Natasha Maheshwari is a 5th year student at Maharashtra National Law University Mumbai. She is a core team member at Parichay.

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

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.