Read the judgment here.
Date of the decision: 04.09.21
Court: Gauhati High Court
Judges: Justice Achintya Malla Bujor Barua and Justice Prasanta Kumar Deka
Summary: The Gauhati High Court granted the Petitioner, a person declared as a “foreigner”, the liberty to seek citizenship under the Gazette notification of 2015 on the ground that he was a persecuted minority as he belonged to the Hindu faith and migrated from Bangladesh.
Facts: The Petitioner filed a review petition before the Gauhati High Court to request for the review of an order in which the High Court had dismissed a writ petition challenging an order of the Foreigners’ Tribunal declaring the Petitioner to be a foreigner. The High Court had dismissed the writ petition on the ground that the Petitioner failed to establish his lineage with his claimed father and thus there was no error apparent in the Foreigner Tribunal’s order. Subsequently, the Petitioner approached the Supreme Court, asking it to grant relief to file a review petition before the Gauhati High Court. The Petitioner argued that there existed two documents that were relevant to the issue but could not be produced before the High Court in spite of due diligence. The first document was a 2015 Gazette Notification issued by the Government of India under Section 3 of the Foreigners Act and the second was the draft NRC in which the name of the petitioner appeared. The Supreme Court did not interfere with the judgment of the Gauhati High Court but gave the liberty to the Petitioner to institute a review petition before the same. Accordingly, this review petition was filed.
Holding: The Petitioner argued that he had a right to be granted Indian citizenship under the Gazette Notification passed in 2015. The notification dated 07.09.15. stated that the provisions of the Foreigners Act, 1946 would not apply to the minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who “were compelled to seek shelter in India due to religious persecution or fear of religious persecution” and entered into India on or before 31st December 2014 without valid documents or with expired documents. Based on this, the Petitioner argued that “there exists a right in favour of the petitioner to be granted Indian Citizenship on the ground that the petitioner belongs to the Hindu religious faith and was required to leave his original Country of Bangladesh because of fear of religious persecution” (paragraph 5). The High Court granted liberty to the petitioner to approach the appropriate authority to file an application raising the plea that he is entitled the grant of Indian Citizenship. It also granted interim protection of two months’ time to the petitioner to file such application, and directed that the authority shall pass a reasoned order without being influenced by the conclusions and findings arrived at by the HC in its previous decision dismissing the writ petition.
Significance: The case deals with a declared foreigner approaching the Gauhati High Court on a review petition seeking to apply for citizenship. It is significant because this is the first instance we know of where a person who is a declared foreigner by the Foreigners Tribunal is seeking to apply for citizenship because of religious persecution. While the order does not refer to the Citizenship (Amendment) Act, 2019, it is only under the CAA, 2019 that persons covered under the 2015 Gazette Notification are exempted from the definition of “illegal migrant” and hence eligible to apply for citizenship. This indicates that the CAA 2019 is operational and can be invoked as a path back into citizenship by non-Muslim declared foreigners in Assam.
Refer to a more detailed note on the CAA 2019 and its continuing implementation here.
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Arushi Gupta and Eeshan Sonak.