FOREIGNERS’ TRIBUNAL

[This note has been authored by Shuchi Purohit]

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

History and Establishment of Foreigners’ Tribunals

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

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

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

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

How do Foreigners’ Tribunals receive Cases?

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

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

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

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

Lapses of Foreigners’ Tribunals in India

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

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

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

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

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

Conclusion

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

Suggested readings

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

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

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

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

Analysis of Foreigners Tribunal orders

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

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

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

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

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

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

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

Analysis of High Court judgments

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

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

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

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

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

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

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

I. Background


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This note was last updated on 11 May 2021.

The Indian Judiciary and Its Record on Statelessness

Anushri Uttarwar is a fourth-year B.BA. LL.B.(Hons.) student and Student Fellow at Centre for Public Interest Law, Jindal Global Law School. Arunima Nair is a second-year LL.B. student at Jindal Global Law School and an Editor of the Parichay Blog. Anushri and Arunima are among the authors of Securing Citizenship: India’s legal obligations towards precarious citizens and stateless persons, released in November 2020. 

Securing Citizenship highlights India’s legal obligations towards stateless persons and precarious citizens within its territory. It does so by expounding the applicable international human rights framework to the state, with every person’s right to nationality and every state’s duty to prevent statelessness as its two integral interwoven threads. Additionally, the report links the said international framework to the Indian state’s corresponding obligations under present domestic law. This article discusses one such aspect viz. the approach of Indian courts in cases involving persons of uncertain nationalities.  

The Indian state’s efforts to uphold every individual’s right to nationality and its duty to avoid and reduce statelessness have been minimal. It has not signed either of the two international conventions on statelessness and has not actively engaged in any global efforts to fight statelessness. As we have noted in our report, neither the Foreigners Act, nor the Citizenship Act, nor the Passport Act and their attendant rules, account for the legal lacunas that can create statelessness. The statutory terms ‘illegal migrant’, ‘foreigner’, and ‘citizen’ cannot be interchangeably applied to a stateless person. The present citizenship determination regime, which places the burden of proof upon the impugned individual and suffers from a well-documented lack of functional independence and procedural safeguards, has actively jeopardized the citizenship status of 1.9 million individuals in Assam in August 2019 (with subsequent deletions and an ongoing Government-led demand for 10-20% re-verification of the 2019 NRC).  

The Indian judiciary’s record on this front has been mixed. The Supreme Court’s judgments in the Sarbananda Sonowal cases (2005 and 2006) decisively laid down the roadmap governing citizenship determination in India. In these cases, the petitioners had impugned the Illegal Migrants (Determination by Tribunal) Act, 1983 (‘IMDT’) and the Foreigners (Tribunals for Assam) Order, 2006, both of which placed the onus upon the state to prove an individual’s foreigner status. The Court agreed and struck them down as unconstitutional. It anchored its reasoning in a broad interpretation of “external aggression” in Article 355 of the Constitution, stating that a “vast and incessant flow of millions” of illegal migrants from Bangladesh into Assam was akin to a “war”, posing a serious existential threat to the economic and social fabric of Assamese society. The Bench cast it as the Central Government’s “foremost duty” to protect its citizens from such aggression; statutes like the IMDT made it far too “cumbersome” to detect and deport foreigners and fulfill this duty, as opposed to the far more “effective” Foreigners Act. Sarbananda Sonowal is still good law; it is the underlying foundation for subsequent Supreme Court decisions, such as the one kick-starting the updation of the NRC and its eventual monitoring of the modalities of the entire NRC exercise

Nevertheless, the Indian Judiciary has occasionally taken cognizance of the tumultuous issue at hand. In each of those occasions where the courts decided to address the said issue, they have consistently observed the insufficiency of domestic laws addressing statelessness and the disastrous consequences of statelessness. These observations have aided them in interpreting the existing domestic statutes liberally so as to prevent the individual in question from being rendered stateless. Interestingly, in these cases, while the courts reasoned their judgments in line with international law on statelessness, they did not make concrete references to it. Four such cases have been outlined below. 

In Gangadhar Yeshwanth Bhandare, the respondent was found to have been a part of a secret Indian governmental mission. His participation in that mission had caused him delay in adhering to the guidelines that had to be followed by those in pre-liberation Portuguese territories who wanted to be considered Indian citizens. It was then alleged that he was not an Indian citizen. The Supreme Court held that the respondent was indeed an Indian citizen since he had renounced his Portuguese nationality already and to hold him to not be an Indian citizen at this stage would render him stateless. Such a consequence was unacceptable for the Court. 

Similarly, in Jan Balaz, the Gujarat High Court interpreted the Indian Citizenship Act, 1955 liberally to prevent the chances of the children born to an Indian surrogate from becoming stateless. The court observed that the children in question would not be able to claim citizenship by birth in Germany (due to the country not recognising surrogacy). It observed that they would have been rendered stateless if they were not accorded Indian citizenship, thereby affirming that they would be eligible for Indian citizenship by birth.  

In Prabhleen Kaur, the petitioner’s nationality was suspected, thereby causing her passport renewal application to be rejected by the relevant authority. The Delhi High Court held that rejecting her application on a mere doubt is manifestly unjust at that stage, as it could leave her stateless, indicating that she can only be ascribed an Indian nationality. 

Once again, in Ramesh Chennamaneni the Telangana High Court pioneeringly held that the power of the Indian government to deprive one’s citizenship under Section 10 of the Act is restricted by several constraints, including the duty of a state to avoid statelessness within its territory. Since in the situation before it, deprivation of citizenship would result in the petitioner being left stateless, the court set aside the committee decision that cancelled his citizenship. 

Apart from circumstances where a petitioner was at the risk of statelessness by virtue of the (in)actions of the Indian state, Indian courts have also acknowledged the need to legally recognize the status of stateless persons existent on Indian territory. By this we mean persons in India who have been rendered stateless by the actions of another state, not India. The Delhi High Court in Sheikh Abdul Aziz (W.P. (Crl.) 1426/2013) was confronted with a petitioner who had been languishing in immigration detention, far beyond his initial sentence under the Foreigners Act. The petitioner’s nationality determination had failed i.e. the Government could not confirm which nationality the man belonged to. The Court here pulled up the Government for its inaction in issuing a stateless certificate to the petitioner, and directed it to do so as the necessary first step towards the petitioner’s overdue release from detention. The stateless certificate, and the subsequent granting of a Long-Term Visa, were essential steps to ensure the petitioner did not become a phantom within the legal and civic community.  

Moreover, our report also argues that stateless certificates cannot and should not operate as obstacles to any application for citizenship. The Indian state has an obligation under international law to prevent and reduce statelessness, and to ensure that individuals can enjoy their right to nationality. Stateless individuals must not be stateless in perpetuity; their continuous residence and community ties in India should entitle them to be naturalised as citizens, per the procedures for naturalization. In the celebrated Chakma case, the Supreme Court created precedent by holding that stateless individuals like the Chakmas in Arunachal Pradesh had a statutory right to be considered for Indian citizenship under Section 5 of the Citizenship Act. Local administrative officials therefore had no grounds for stalling and refusing to forward Chakma individuals’ citizenship applications. The Delhi High Court, in a subsequent case dealing with a plea by a Tibetan individual who was born in India in 1986 to two Tibetan refugees, held that the petitioner’s stateless identity certificate did not bar her from being eligible for Indian citizenship by birth under Section 3(1)(a) of the Citizenship Act, and directed the MEA to process her application expeditiously. 

The pattern of the judiciary utilising international law standards on statelessness continues even in cases where the Court could not come to a decision immediately in favor of the petitioner, as the Patna High Court did recently in Kiran Gupta v State Election Commission. The appellant here was challenging an Election Commission decision that cancelled her Panchayat electoral victory, on the grounds that she was not an Indian citizen when elected. She was a Nepali citizen at birth, and had resided in India and raised her family for 17 years since her marriage to her Indian husband, along with possessing a Voter ID, a PAN card, and property in her name here. She had even terminated her Nepali citizenship in 2016. However, she admitted that she had failed to register for Indian citizenship under Section 5 of the Citizenship Act.  

The Court’s hands were tied: the conferral of Indian citizenship is clearly an Executive function, with the various procedures laid out in the statute. It held that it could not step into the shoes of the Executive and declare her an Indian citizen. Despite this, however, the Court demonstrated sensitivity towards the petitioner’s unusual situation. She was caught in a precarious situation where she possessed neither Indian nor Nepali documents of citizenship. In its final few pages, the Court crucially reiterates the duty upon the Indian state to prevent and reduce statelessness, in spite of signing neither statelessness convention. India has signed and ratified several other human rights treaties with provisions limiting nationality deprivation, such as the ICCPR, CEDAW, ICERD, and CRC. In its operative portion, the Court directed the Government to be mindful of the petitioner’s peculiar circumstances as and when she applies for citizenship. The Patna High Court demonstrates the capacity of courts to step in and affirm the internationally recognised and binding duties to prevent and reduce statelessness.  

At this juncture, it is imperative to note that the aforementioned cases present what we would consider ‘aspirational’ statelessness jurisprudence in the context of India. They are, unfortunately, exceptions rather than the norm: a litany of court decisions follow the overarching rationale of Sarbananda Sonowal and are either unaware of or wholly indifferent to individuals’ right against arbitrary deprivation of citizenship and the duty to prevent statelessness under international law. Foreigners Tribunals (‘FTs’) have consistently been passing orders that are arbitrary and ripe with procedural inadequacies, thereby designating an increasing number of individuals as foreigners. Adverse FT decisions are based on any and every minute clerical error or inconsistencies within their documents. Many such decisions have been upheld on appeal in the Gauhati High Court; as an indicative selection, in Nur Begum v Union of India and Sahera Khatun v Union of India, the burden of proof as per Section 9 of the Foreigners Act was interpreted stringently as one that rests absolutely upon the proceedee. In Jabeda Begum v Union of India, 15 official documents were found to be insufficient to discharge the said burden.  

To conclude, given the polar contrasts within the Indian statelessness jurisprudence, the judiciary’s role will remain incomplete unless accompanied by comprehensive legislative and policy changes. This would require India to not just formally accede to the 1954 and 1961 Conventions, but to also reform its current citizenship framework and explicitly allow for the expedited naturalisation of stateless persons. One hopes that the Executive catches up soon and fortifies its obligation. 

Mapping Developments: A follow-up to the Detention Chapter from the Securing Citizenship Report

Khush Aalam Singh is a third-year law student pursuing the B.A. (LL.B.) program at Jindal Global Law School. He is a Student Fellow at Centre for Public Interest Law, JGLS, where he is currently assisting research interventions on questions of citizenship and statelessness. Khush is one of the authors of  Securing Citizenship: India’s legal obligations to precarious citizens and stateless persons, released in November 2020.

The Securing Citizenship report is divided into three chapters – Status, Detention and Socio-Economic Rights. Each chapter addresses the international law obligations of India vis-à-vis precarious citizens and stateless persons. As authors of the Detention chapter, real-time developments posed a challenge for us. We had to be mindful of the news and the overall argument the report sought to advance. This article is an attempt to engage with major developments since September 2020 which did not make the final text. As such, it endeavours to expand the conversation around issues at the nexus of statelessness, precarious citizens, and detention pending deportation.

A development of significance is the Gauhati High Court’s order (dated 7th October) in the case of Santhanu Borthakur v. Union of India and Ors. (W.P. (Crl.)/2/2020). In this criminal writ petition, the court observed that persons declared as foreigners shall be kept in detention centres outside of prisons. The court also observed that earmarking a specific area in jail premises as a detention centre is not in accordance with Supreme Court guidelines. These guidelines stem from its judgement in the case of Bhim Singh v. Union of India (2012).

Furthermore, the Santhanu Borthakur order refers to communications by the Central Government specifying that detention centres need to be set up outside jail premises. These communications included a recommendation that the state consider hiring private buildings for the purpose of keeping detainees while the detention centres are under construction. While the order does not declare the detention of foreigners inside prisons as outrightly illegal, it directed the state authorities to place a status report showing measures taken to set up detention centres. This status report is likely to be placed before the court at the next hearing of the matter.

The Court’s observations relating to the detention of ‘foreigners’ inside prisons complement a key concern that we flag in the report. The nature of confinement for persons declared as foreigners is materially different from that of convicts or undertrials. As per the Assam Government White Paper of 2012, the detention of declared foreigners is ‘administrative’ in nature. In other words, the detention of such persons takes place for deporting them to their country of origin and is not necessarily a criminal penalty. However, the intent of deporting is illusory as low rates of deportation show that removing such persons to their purported country of origin is not an option. This is because Indian citizens in Assam whose citizenship status is precarious are detained under the guise of ‘foreigner’. Stateless persons may also be detained as ‘foreigners’ without a nationality. These persons are kept along with undertrials and convicts without any proper system of distinguishing between these categories. This has worrisome consequences such as discrimination by jail officials, overcrowding of prisons, physical and mental health concerns as well as shortage of rations.

Therefore, the Court’s observations are welcome to the extent that they are consonant with international law on administrative detention pending deportation. However, we are yet to see a judicial pronouncement that explicitly sets out the premise that stateless persons and precarious citizens cannot be detained. Such a pronouncement must be foregrounded in the language of rights and should leave no scope for ambiguity. The Supreme Court orders allowing the release of detainees are examples of this ambiguity, as has been mentioned in the report. This is because the Court employs a language bereft of any reference to rights. The overriding imperatives prompting the orders seem to be administrative convenience or public health. This becomes an issue as these orders do not recognize the rights of precarious citizens and stateless persons.

After the Supreme Court relaxed the conditions required for release of detainees earlier last year (W.P. (C) 1/2020 (Supreme Court)), the Gauhati High Court initiated a suo motu writ petition (W.P. (C) (Suo Motu) 1/2020) to oversee the process. The orders record the release status of detainees and the number of detainees released. According to the last order dated 17September 2020, 349 eligible detainees had been released from detention. The data provided in the order does not specify whether this figure is across all detention centres or from a specific detention centre. None of the orders have a breakdown of the numbers from each detention centre. Instead, there is a lumpsum figure as was submitted by the state counsel. This is yet another reflection of the ambiguity surrounding numbers from Assam, making it difficult to have a clear idea of the situation. Furthermore, the numbers do not mean that there are no persons in detention at present. As of those eligible, about 13 detainees have not yet been released due to non-fulfilment of bail conditions. It is unknown whether persons who have not yet completed two years in detention are still inside these detention centres. Additionally, no details have emerged about the conditions inside these detention centres – especially given the COVID-19 situation.

Outside of Assam, the Karnataka High Court also made observations about the detention of illegal migrants/foreigners. In Babul Khan and Anr. v. State of Karnataka and Anr., Justice Phaneendra observed that persons found to have violated the Foreigners Act, 1946 do not have the right to move around freely “as if they are the citizens of the country”. Furthermore, the court reiterated that persons declared as foreigners shall be detained pending deportation. The order does recognize some aspects that we have sought to highlight in the report. The court affirms that children in detention are particularly vulnerable, along with women, therefore their rights have to be protected. The court relied on the UN Declaration on the Rights of the Child (1959) as well as the Supreme Court guidelines in R.D. Upadhyaya v. State of AP. These guidelines enshrine the right of the child to education, food, recreation, medical care, etc. Further, the court cited the Juvenile Justice Act (2015) and the Rules to show that these rights have a firm grounding without reference to the nationality of a child.

While the observations with respect to children complement our arguments, there are many concerns when it comes to the nature of detention in such cases. As Securing Citizenship argues, stateless persons and precarious citizens cannot be detained for deportation. Such persons have a right to immediate release if they are presently detained. In the case of stateless persons, they cannot be removed to any country, since no country considers them as its citizens. Precarious citizens, on the other hand, are Indian citizens by virtue of their ‘genuine link’ to this country. When both stateless persons and precarious citizens are deemed ‘foreigners’ before the law, their confinement inside detention centres is arbitrary and violates domestic and international law. The lack of a periodic review mechanism by a judicial body further aggravates the issue. This is particularly disappointing as courts have recognized statelessness as a situation to be avoided. Yet, courts and policy-makers have paid inadequate attention to the nexus between statelessness, precarious citizenship and detention pending deportation.

There is a dire need for a well-drafted and well-thought out policy that addresses these issues substantively. Through our intervention, we have attempted to highlight areas of concern with the existing policies and how they neglect these categories of persons. The impact of detention without substantive and procedural safeguards continues to be disproportionate. As we argue in the report, principles of international law need to be kept in mind while addressing these issues, with an overarching emphasis on human rights. To ensure this, the fundamental rights contained in the Constitution can provide a strong basis. Furthermore, detention should be used as a measure of last resort. The state shall exhaust all possible lesser-restrictive options before deciding to detain someone. Our paramount concern remains the situation of stateless persons and precarious citizens in detention centres, particularly in Assam. We sincerely hope that our intervention finds consideration and concrete expression through policy reform.

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.

Aper Ali or Afer Ali: The Foreigners Tribunal and ‘Inconsistencies’

This is a guest post by Douglas McDonald-Norman. Douglas McDonald-Norman is a barrister in Sydney, Australia. He predominantly practices in migration and administrative law. He also writes for Law and Other Things.

In their report Designed to Exclude, Amnesty International have recorded the experiences of a man named Abu Bakkar Siddiqui. In 2016, he appeared before a Foreigners Tribunal in Jorhat, Assam.

In his deposition, Abu Bakkar said that his grandfather’s name was Aper Ali Sheikh. To prove that his ancestors had been in India before 1971, Abu Bakkar submitted 1966 and 1970 voter lists – in which the name of his grandfather was written as ‘Afer Ali Sheikh’.

The Tribunal found that Abu Bakkar could not prove that his grandfather Aper Ali Sheikh had ever existed. It rejected his explanation that Aper Ali Sheikh and Afer Ali Sheikh were the same person, saying that this explanation had been made ‘too late in the day’. His attempt to seek review in the Gauhati High Court was dismissed.

This is absurd. But it is not an isolated or uncommon incident. As Amnesty International have reported, in many cases Foreigners Tribunals have rejected applicants’ claims to be who they say they are, or have rejected their accounts of their lives and the lives of their families, based on minor or easily explicable inconsistencies – spelling, dates, typographical errors.

These practices have international parallels. Around the world, courts and tribunals engaged in ‘refugee status determination’ (that is, the process of working out if asylum seekers are entitled to protection as refugees) have frequently relied on ‘inconsistencies’ of these kinds to find that asylum seekers are not telling the truth about who they are or why they claim to fear harm if returned to their countries of origin. Some of these inconsistencies may be explained by fear, shame or inevitable loss of detailed recollection over time (or because of trauma). Other inconsistencies (particularly in documents) may be explained by the context from which an asylum seeker has fled; bureaucracies in their country of origin may have flawed record-keeping practices, or the asylum seeker may not be able to access any corroborative documents because those documents are held by precisely the people they fear will persecute them.

In Foreigners Tribunals, as in refugee status determination, we see decisions being made based upon dubious, harsh or even absurd reasoning, particularly in relation to inconsistencies or errors in applicants’ narratives or documents. How can we use legal frameworks, advocacy and review to challenge these practices?

People stripped of nationality by Foreigners Tribunals can seek review in the Gauhati High Court or the Supreme Court of India. But this review is on limited terms. As the Gauhati High Court explained in State of Assam v Moslem Mondal, a petitioner seeking writs of certiorari to quash a decision of the Foreigners Tribunal must establish that the Tribunal’s decision is affected by jurisdictional error.

The High Court’s judgment in Moslem Mondal takes the concept of ‘jurisdictional error’ further than that in some other common law nations. Justice B. P. Katakey noted that jurisdictional error may arise where reasons for a given exercise of power are ‘inconsistent, unintelligible or inadequate’, in addition to the standard, more orthodox grounds of jurisdictional error – ‘application of a wrong legal test to the facts found, taking irrelevant consideration into account and failing to take relevant consideration into account, and wrongful admission or exclusion of evidence as well as arriving at a conclusion without any supporting evidence’. But the relevant test in the Gauhati High Court is still a question of legal error – mere unfairness or harshness do not suffice, and it is not enough that the Court could (or even would) have made a different decision if it were sitting in the place of the original decision-maker.

How, then, can we challenge the use of trivial or absurd inconsistencies within this framework of jurisdictional error?

In Australia, judicial review of migration decisions is only available where the purported decision is affected by jurisdictional error (that is, that it is beyond the power of the agency which purportedly made the decision). Jurisdictional error may arise on equivalent or similar grounds to those identified by Justice Katakey – for example, failure to consider relevant considerations, findings based on no evidence or misapplication of a relevant legal test. Equivalent to India’s basis for review of ‘inconsistent, unintelligible or inadequate’ reasoning, decisions in Australia may be challenged because they rely on unreasonable, illogical or irrational findings – but this is a high threshold to clear. It requires more than merely establishing that a different finding could have been made; it must be established that the finding, or the exercise of power, is one which no reasonable decision-maker could have made.

But in Australia, we can see examples by which arbitrary or harsh decision-making practices can be restrained through the creative use of traditional grounds of judicial review. Where, for example, a decision-maker relies on ‘unwarranted assumptions… as to matters relevant to the formation of a view on the credibility of a corroborative witness, the decision-maker may constructively fail to consider relevant considerations arising from the material before it (There are parallels, in this regard, with reasoning in Moslem Mondal itself – in which Justice Katakey found that in one of the decisions challenged ‘[t]he learned Tribunal did not appreciate the evidence on record in its proper perspective, thereby refusing to take into consideration the relevant piece of evidence’). Similar reliance on ‘unwarranted assumptions’ may mean that the decision is illogical or irrational, or that a decision-maker has made findings with no basis in the evidence before it.

The ‘unwarranted assumptions’ argument is not a new basis for judicial review or jurisdictional error. It is merely a different way of understanding and applying traditional grounds – failure to have regard to relevant considerations, making findings on the basis of no evidence, and ‘unreasonableness’.

Advocates and activists working to reform the Foreigners Tribunal can similarly reshape traditional grounds of judicial review to restrain abuses of the Tribunals’ fact-finding function, even with the limited tools left available to them by Moslem Mondal. When a Tribunal relies upon an absurd or exceptionally minor inconsistency (like a typographical error on a document), even the traditional grounds of judicial review may permit the Court to question whether there is a logical or probative basis for any adverse finding made as a result, or to question whether an ‘unfounded assumption’ that the document would invariably have been accurate as transcribed prevented the Tribunal from properly having regard to the evidence before it. When a Tribunal relies on a difference between general and specific accounts of the same thing, the Court may question whether the Tribunal’s misunderstanding or mischaracterisation of the evidence has led to a constructive failure to consider that evidence, or a failure to consider necessary questions arising from that evidence. These may seem like frail instruments to reform broader abusive or unjust practices by the Foreigners Tribunals, and may seem entirely inadequate to address the fundamental injustice at the heart of that system. But, over time, these grounds of review can be used to set clear limits on how the Tribunals function and how they make decisions. These limits to the fact-finding powers of the Tribunals can protect vulnerable individuals from abusive and arbitrary exercises of power.

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 Swati Bidhan Baruah

Swati Bidhan Baruah is a vocal advocate for the plight of the transgender community in Assam. Not only was Ms. Baruah Gauhati University’s first transgender law student, but she also went on to become Assam’s first transgender judge. Ms. Baruah has fought and won several cases for the recognition of trans rights. Her organization, the All Assam Transgender Association, has been consistently working towards the realisation of the rights of the transgender community.

This interview has been edited for length and clarity.

Natasha Maheshwari: Ms. Baruah, you filed a plea before the Supreme Court against the exclusion of 2000 persons belonging to the transgender community from the National Register of Citizens (‘NRC’). What motivated you to file the case? What was the Supreme Court’s response? Were they sympathetic to the problems of the community?

Swati Bidhan Baruah: Many transgender persons are abandoned or disowned by their families. When they leave their homes in search of a community, they stay with us. Neither do they have any connection with their parental homes nor any documentation that can help them establish linkage with their parents or guardians.  In such a situation, will they be termed as foreigners? Are they not citizens of India? 

Additionally, the first step of the NRC process i.e. the NRC form, allowed persons to choose from three gender categories — male, female, and other. By including the ‘other’ category, trans persons were given the right to identify themselves. However, when the first draft of the NRC was published, many trans persons found themselves to be excluded from the list. That is when I spoke to Mr Prateek Hajela, the then NRC Coordinator. Mr Hajela assured me that the government will implement the necessary evolving principles required to ensure the inclusion of members of the transgender community. This would be done through a claims and objections procedure. 

But the claims and objections procedure forced trans persons to identify as either ‘male’ and ‘female’, i.e. the ‘other’ category was not included. Now, let’s assume that I chose to identify my gender as ‘other’ while filling the NRC form and later, did not find myself included in the first draft of the NRC. While filing a claim or an objection, the ‘other’ category was not mentioned, thereby forcing me to identify as either male or female. So on one hand, the NRC process purports to allow trans persons to participate in it while simultaneously disallowing us from identifying ourselves. This process is violative of the 2014 NALSA judgment which gave trans persons the right to self identify in addition to leading to discrepancies in data thereby leading to problems in proving citizenship. 

When I spoke to Prateek Hajela about this he did not provide us with a satisfactory response. This is why we found it imperative to file an intervention application before the Supreme Court. 

[The NRC] is also violative of the rights of orphaned children. How are they supposed to identify themselves as citizens? In order to be included in the NRC, you have to show the authorities your family tree and establish linkage parents. That becomes impossible.

In the court, the ex-CJI told us that we have missed the bus, the Court could not restart the procedure [to ensure our inclusion].  My submission is that if we have missed the bus, aren’t trains and flights available? Why do they not want to accommodate us? However, the Supreme Court did not dismiss our petition. They kept it standing and issued notice to the State Government. The matter is still pending. 

NM: What is the experience of the transgender community in Assam during the NRC? Were the NRC Seva Kendras (‘NSKs’) receptive to the trans community’s complaints? Did they help members of the community to look for their legacy data?  What has been the community’s experience in producing legacy and linkage documents necessary for inclusion in the NRC been?

SBB: The officers at the NRC Seva Kendras were extremely insensitive. Most members of the trans community do not have any documents to prove their citizenship; the government has not taken any initiative to recognise them. As a result they find themselves excluded from the NRC process. 

The officers did not allow us to enter the Seva Kendra. Often, quarrels took between trans persons and officials. But this has not been highlighted by the media. I believe that the media plays a very important role in sensitising members of the society and officers of the government. It is very important that the NALSA judgment is implemented so that our rights are realised and recognised. 

The NRC process requires you to enclose documents to show your father’s presence in the country before the year 1971. Thereafter, you have to produce your birth or school certificates to establish a relationship with your father. This entire process is violative [of trans rights] and doesn’t have any evolving principles. 

Most trans people do not have documentation that will enable them to prove citizenship. Let me give you an example: let us assume, before transitioning, you were a boy, your name was Rahul. Now, you have transitioned to a girl and your name is Reshma. How do you prove that Rahul is Reshma? The state government is responsible for ensuring that trans persons possess documentation to show that Rahul and Reshma are one and the same person. A few trans persons left home at an older age and still recognise their parents or know of their whereabouts. When they visited their parental homes, their parents refused to give them the required documents. So, in such cases, how do you expect them to produce documents that will enable them to prove citizenship and be enlisted in the NRC?

In 2018, the Ministry of Home Affairs published a report publishing its plans for a nationwide NRC. If the Government of India is planning to extend the NRC process to the entire country it will be a gross violation of the rights of the trans community and orphaned children. 

NM: What were the efforts made by civil society organisations to ensure the inclusion of transgender persons in the NRC? Was the government receptive to these efforts?

SBB: No efforts were made, they did not do anything to help us. Seeing the discrepancies in the NRC process, my organisation, the All Assam Transgender Association, filed an intervention application before the Supreme Court pleading for a trans friendly NRC. 

NM: How can the government make sure that transgender persons are included within the NRC, i.e., what would a trans-inclusive NRC look like?

SBB: I believe that the government should keep the trans community in mind before initiating any process (and I am not referring to the NRC alone). They should recognise us as a part of society, we should not be alienated and marginalised. Keeping in mind the Supreme Court’s judgment in the NALSA case, the government should evolve a process that is trans friendly. Necessary principles need to be framed specifically for the trans community. If a trans person does not have documents then self-identification should suffice and be accepted as a valid document. If NRC Seva Kendras can exist for men and women, why can’t transgender persons have one?

NM: In 2018, the United Nations raised concerns of the purposeful exclusion of minority groups from the NRC by the local authorities. Do you agree with this concern?

SBB: Yes, I do. The NRC should not violate anyone’s interest. And I am not referring to trans persons only. For example, take yourself, you are born and educated in India. You are religious to the motherland. If someone comes and initiates a process that might declare you as a foreigner, how will that make you feel? It is very problematic!

Instead of implementing an NRC, I believe that the government should define the border.  This will prevent trespassing. There should also be an Inner Line Permit in the state along with a law to protect the interest of domiciles. So, there are other ways to protect the rights of the indigenous communities. The NRC is an extremely regressive alternative.

NM: Foreigners’ Tribunals (‘FTs’) are vested with extraordinary power due to the highly restricted criterion for judicial review. They are also allowed to evolve their own rules of procedure. As Assam’s first transgender judge, what is your opinion on the competence of the Foreigners’ Tribunals, which are quasi-judicial bodies, and its members to decide a person’s citizenship?

SBB: They may be vested with extraordinary powers but their orders are often challenged before the High Court and Supreme Court. They are also quashed, if need be. So there is nothing to worry about. A discrepancy, if any, seems to have arisen in ensuring the appointment of FT member judges. After the NRC process was completed. the government was supposed to set up more Tribunals to ensure justice to the persons excluded from the NRC. However, despite the selection of 200 member judges, their appointment has not been disbursed. And yes, there is executive interference and bureaucratic resistance in the functioning of the FTs.Of course, it is a matter of concern. But, in respect of matters concerning transgender persons, if we find any discrepancies in the FT orders, we will challenge them in addition to questioning the credibility of the FT member. 

NM: What, in your opinion, has been the role of the Gauhati High Court in upholding due process in cases before Foreigners’ Tribunals?

SBB: Several Muslims were excluded from the NRC solely because of their name. Suppose a man’s surname is Ali, but his father’s surname was Hussain and his mother’s surname was Begum. Now this man has given birth to 4 children. So one child uses Ali as his surname, another writes Hussain, and the third writes Begum. Their surnames do not match with each other and as a result they were declared as foreigners. The Gauhati High Court intervened in cases like these and rectified the judgment of the FTs. Of course, the court is the ultimate remedy. We must have some faith in the judiciary. There are good judges with a strong conscience who have expanded the area of jurisprudence and rectified the mistakes of the FTs. 

Natasha Maheshwari is a fifth-year law student at Maharashtra National Law University Mumbai.

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.