Marium Khatoon v. State of Bihar, CWJ No. 390 of 2020

Read the judgment here.

Date of decision: 18-08-2021

Court: Patna High Court

Judges: Chief Justice Sanjay Karol and Justice S. Kumar

Summary: The Patna High Court intervened and expedited a matter for repatriation of two Bangladeshi illegal migrants staying in an After Care Home in India. The court conducted an investigation of these Homes and ordered the State Government to set up Detention Centres for such migrants in accordance with Central Government guidelines.

Facts: Two minor Bangladeshi migrants were arrested from the Patna Railway Station and kept in After Care Homes (Nari Niketan) for several years. The two migrants were admittedly illegal migrants who had entered India without valid documents. Their repatriation was still pending. The question to be addressed was about the conditions in which foreign citizens who had been prosecuted, convicted and had completed their sentence, were being kept. The court constituted a committee of three advocates to look into the conditions of the After Care Home in a fair manner. The Committee reported that migrants were being treated well, with no sexual/mental harassment or slavery, appropriate medical assistance, nourishment and tutoring. Meanwhile, the two migrants were deported back to Bangladesh. The amicus argued that such migrants should not be staying in such Homes and instead the State should create a Holding Centre or Detention Centre for migrants arrested in the State of Bihar.

Holding: The court held that such Detention Centre could not be created within the jail and must be created in terms of the instructions given by the Central Government. It is a primary duty of the State to create such Detention Centres. It was also held that it is a duty of the Union of India to respond to the court’s queries, including all its Departments and Ministries. Accordingly, the State eventually took up the setting up of such Detention Centres. The court further asked for details about (a) the time frame for setting up of the Detention Centre, (b) whether the temporary Detention Centre is equipped with the requisite minimum infrastructure stipulated under Chapter-4 of Model Detention Centre/Holding Centres/Camp Manual, 2019, (c) what steps have been taken by the State Government for sensitizing the general population of Bihar about the mechanism of identifying and deporting illegal migrants from Bangladesh, and (d) steps taken to digitalize the records sought to be maintained under Section 6 and Section 7 of the Foreigners’ Act 1946.

The matter currently stands pending and the State Government is yet to reply to the court.

Significance: Both, the judgment as well as the action of the executive here are quite irregular. As has been stated by an advocate of the Calcutta High Court, “Ideally, a legal proceeding should come to a halt as soon as the subject matter of such proceeding is exhausted. In this case, the writ petition ought to have been disposed of as soon as deportation took place, as the fate of all concerned persons was decided.” On the executive’s part, the two migrants were kept in the Nari Niketan, instead of being tried under the Foreigners’ Act. Yet, the court never called this into question. The court’s order is also plagued with several factual inconsistencies, such as there being three and not two women from Bangladesh who had been arrested and placed in the Nari Niketan and that the women had been minors at the time of their arrest. Moreover, the foreigners in question were women who were victims of cross-border human trafficking. In 2015, a Memorandum of Understanding was signed between India and Bangladesh on bilateral cooperation on matters concerning the cross-border trafficking of women and children between India and Bangladesh. The MoU sets out the process for repatriation of victims of trafficking, and the language used suggests that trafficked women and children are not to be treated as illegal migrants, but as victims, and repatriated accordingly. The court fails to account for the fact that victims of trafficking are accorded treatment distinct from other categories of foreigners. The fact that the court reached its conclusion despite these inconsistencies shows that the women and their predicament were completely sidelined, and were rather used by the court to make a policy decision about detention centres, in a case instead concerning repatriation of victims of human trafficking.. 

The court’s concern here for human rights violation can be appreciated, especially in the context of the horrible conditions in the Assam Detention Camps. While the Central Government’s Model Detention Centre/Holding Centres/Camp Manual, 2019 lay down some standards for humane treatment of detainees, it has been criticised for being far too ambiguous, putting into question the court’s insistence on establishing these Detention Centres.

Resources:

  1. Neel Madhav How a Trafficked Woman’s Petition Is Being Used to Push for Detention of ‘Illegal Migrants’, The Wire, 3 September 2021.  
  2. Where hope fades and time stands still: Assam’s Detention Camps, Citizens for Justice and Peace, 13 November 2018.
  3. Vijaita Singh, Explained: Indian Home Ministry’s guidelines on migrant camps, The Hindu, 4 August 2019.
  4. Ruhi Tewari, Modi govt sets norms for ‘model’ detention camps to ensure dignity of ‘illegal foreigners’, The Print
  5. Deborah Grey, Ambiguous guidelines for ‘model’ detention camps raise questions, CJP, 28 November 2019.
  6. Ministry of Home Affairs, Government of India, Conditions of Foreign Prisoners, 2 July 2019.
  7. Ministry of Home Affairs, Government of India, Detention Centres in the Country, 24 July 2019.
  8. Sparsh Upadhyay, Deportation Of Illegal Migrants Is Of Paramount Importance, In National Interest: Patna High Court Directs Govt To Sensitize People Of Bihar, LiveLaw, 28 August 2021.

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

Asor Uddin v. Union of India, WP(C)/6544/2019

Read the judgment here.

Date of decision: 09.09.2021

Court: Gauhati High Court

Justices: Justice N. Kotiswar Singh and Justice Manish Choudhary

Summary: The Gauhati High Court set aside an ex-parte order by the Foreigners’ Tribunal which declared the petitioner a “foreigner” due to his repeated non-appearance before the tribunal. The court reasoned that there were sufficient reasons which made the petitioner unable to present himself before the tribunal. 

Facts: The petitioner was declared a foreigner by the Foreigner’s Tribunal under Section 2(a) of the Foreigners’ Act, 1946, via an ex-parte order. The petitioner was a poor person and had to travel to Kerala for livelihood. Due to this, he had difficulty readily gathering documents containing his father and grandfather’s names, communicating with his counsel, appearing before the tribunal and filing a written statement. 

Due to his repeated non-appearance and non-filing of written statement, the tribunal passed an ex-parte order, declaring him a foreigner who had entered India from Bangladesh after 25.03.1971. The petitioner approached the Gauhati High Court to set aside the ex-parte order on the grounds mentioned above. The counsel for the Foreigners’ Tribunal argued that in the absence of the procedee, the law allows passing an ex-parte order. Since the petitioner had failed to file a written statement despite several dates given by the tribunal, the order was valid and legal. 

Holding: The court set aside the ex-parte order and directed the petitioner to appear before the Foreigners’ Tribunal for fresh proceedings. It was reasoned that “citizenship, being an important right of a person, ordinarily, should be decided on the basis of merit by considering the material evidences that may be adduced by the person concerned and not by way of default as happened in the present case.” [Para 7] 

The court deemed the reasons for the petitioner’s non-appearance sufficient to be considered by the Tribunal on merits. The court recused itself from deciding on the question of whether the petitioner is a foreigner or not, and instead remanded it to the Foreigners’ Tribunal for reconsideration. The petitioner was also directed to be released on a bail bond of Rs. 5000/- and to submit costs worth Rs. 5000/- to the tribunal. 

Significance: The High Court setting aside the ex-parte order is appreciable, considering the history of the large number of ex-parte orders being pronounced by the Foreigners’ Tribunal. Such orders are common since in many cases, procedees do not receive notice, or discontinue attending the proceedings due to poverty and/or the complexity of the proceedings. In a previous case, a similar ex-parte order was passed by the tribunal where the proceedee’s child appeared before the tribunal without her knowledge, and then proceeded to remain absent for subsequent hearings. 

At the same time, however, the judgment problematizes the exact situations in which cases can be remanded back to the Foreigners’ Tribunal by the High Court. Unlike the above-mentioned case, the court has not found any fault by the tribunal in serving notice or hearing a representative without a thorough checking. The reasoning relied upon by the High Court was that the case is a matter of citizenship, which is the case with all the matters heard by the Foreigners’ Tribunal, and that the petitioners’ reasons for non-appearance seemed sufficient to the court. It remains unclear what is the exact parameter that a court can deem reasons “sufficient” to set aside such an ex-parte order and remand the case back to the tribunal. 

Resources

  1. Abhishek Saha, Explained: How do Foreigners’ Tribunals work?, Indian Express, 9 July 2019.
  2. Gau HC | [Assam NRC] Citizenship is one of the most important rights of a person which shall not be taken away by an ex-parte order; HC remands the matter to the Tribunal for reconsideration, The SCC Online Blog, 22 April 2021.
  3. Shrutika Pandey, Citizenship Is An Essential Right: Gauhati High Court Sets Aside Ex-Parte Order Declaring Man As Foreigner, LiveLaw, 13 September 2021.
  4. Challenging Ex Parte Orders on the Ground of Improper Service of Notice, Parichay – The Blog, 11 February 2021. 
  5. Aman Wadud, Judiciary must re-examine how it has viewed citizenship question in Assam, Indian Express, 24 September 2021. 

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

Mangla Das v. Union of India, Review.Pet./73/2021

Read the judgment here.

Date of the decision: 04.09.21

Court: Gauhati High Court

Judges: Justice Achintya Malla Bujor Barua and Justice Prasanta Kumar Deka 

Summary: The Gauhati High Court granted the Petitioner, a person declared as a “foreigner”, the liberty to seek citizenship under the Gazette notification of 2015 on the ground that he was a persecuted minority as he belonged to the Hindu faith and migrated from Bangladesh. 

Facts: The Petitioner filed a review petition before the Gauhati High Court to request for the review of an order in which the High Court had dismissed a writ petition challenging an order of the Foreigners’ Tribunal declaring the Petitioner to be a foreigner. The High Court had dismissed the writ petition on the ground that the Petitioner failed to establish his lineage with his claimed father and thus there was no error apparent in the Foreigner Tribunal’s order. Subsequently, the Petitioner approached the Supreme Court, asking it to grant relief to file a review petition before the Gauhati High Court. The Petitioner argued that there existed two documents that were relevant to the issue but could not be produced before the High Court in spite of due diligence. The first document was a 2015 Gazette Notification issued by the Government of India under Section 3 of the Foreigners Act and the second was the draft NRC in which the name of the petitioner appeared. The Supreme Court did not interfere with the judgment of the Gauhati High Court but gave the liberty to the Petitioner to institute a review petition before the same. Accordingly, this review petition was filed. 

Holding: The Petitioner argued that he had a right to be granted Indian citizenship under the Gazette Notification passed in 2015. The notification dated 07.09.15. stated that the provisions of the Foreigners Act, 1946 would not apply to the minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who “were compelled to seek shelter in India due to religious persecution or fear of religious persecution” and entered into India on or before 31st December 2014 without valid documents or with expired documents. Based on this, the Petitioner argued that “there exists a right in favour of the petitioner to be granted Indian Citizenship on the ground that the petitioner belongs to the Hindu religious faith and was required to leave his original Country of Bangladesh because of fear of religious persecution” (paragraph 5). The High Court granted liberty to the petitioner to approach the appropriate authority to file an application raising the plea that he is entitled the grant of Indian Citizenship. It also granted interim protection of two months’ time to the petitioner to file such application, and directed that the authority shall pass a reasoned order without being influenced by the conclusions and findings arrived at by the HC in its previous decision dismissing the writ petition. 

Significance: The case deals with a declared foreigner approaching the Gauhati High Court on a review petition seeking to apply for citizenship. It is significant because this is the first instance we know of where a person who is a declared foreigner by the Foreigners Tribunal is seeking to apply for citizenship because of religious persecution. While the order does not refer to the Citizenship (Amendment) Act, 2019, it is only under the CAA, 2019 that persons covered under the 2015 Gazette Notification are exempted from the definition of “illegal migrant” and hence eligible to apply for citizenship. This indicates that the CAA 2019 is operational and can be invoked as a path back into citizenship by non-Muslim declared foreigners in Assam. 

Refer to a more detailed note on the CAA 2019 and its continuing implementation here.


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