The Gauhati High Court allowed a petition alleging that the petitioner’s mother was declared a foreigner by an ex-parte opinion of the Foreigners Tribunal.

The petitioner, Tarapada Namadas, is aggrieved by an ex-parte opinion dated 25.09.1997 of the Foreigners Tribunal, Dhubri, Kokrajhar and Goalpara by which the mother of the petitioner, Sorojoni Sarkar, was declared to be a foreigner who entered Assam between 1966 and 1971. The petitioner also refers to a voters’ list of 1966 of village Pam Mayanbori, Mouza Baghbor in the Barpeta district which contains the name of Brajabasi Namadas, who is the father of the petitioner, Sorojoni Namadas is the mother of the petitioner and the name of the petitioner himself appears in the voters’ list of 1966 and therefore has to be accepted to be a citizen of India. The petitioner is aggrieved that because of the ex-parte opinion his mother was declared to be a person who entered Assam between 1966 and 1971, his legal rights as a citizen of India are being questioned by some authorities. Being aggrieved, the petition is instituted.

The petitioner also referred to an order dated 06.01.2016 of the SubDivisional Officer(Civil), Gossaigaon under Rule 3 of the Assam Registration of Birth/Death Rules, 1977 by which it had been ordered that the date of death of Sorojoni Namadas, wife of Brajabasi Namadas, is 16.05.1991 and it has to be accepted that the mother of the petitioner Sorojoni Namadas died on 16.05.1991.

When the Court verified the records of service of notice on Sorojoni Namadas in connection with case of the Foreigners Tribunal at Dhubri, Kokrajhar and Goalpara, it is noted by the Court that there is a report by the Process Server containing the signature as well as the left thumb impression of Sorojoni Das in 1997. “If Sorojoni Das died in 1991, the report of the Process Server appears to be a frivolous report,” noted the Divisin Bench of Justice Achintya Malla Bujor Barua and Justice Robin Phukan.

From the point of view that the notice was not appropriately served upon Sorojoni Sarkar and also from the point of view that when the opinion was rendered, Sorojoni Sarkar, wife of Brajabasi Sarkar was no more, the Bench observed that the ex-parte opinion is unsustainable in law.

“Although there is a question as to whether Sorojoni Sarkar, wife of Brajabasi Sarkar and Sorojoni Namadas, wife of Brajabasi Namadas are one and the same person remains, but still the materials as indicated above lead in favour of a declaration that there cannot be any ex-parte opinion rendered in a Foreigners Tribunal against the mother of the petitioner Sorojoni Namadas, wife of Brajabasi Namadas of village Pam Mayanbori, Mouza Baghbor in the Barpeta district. Accordingly, all legal rights of the petitioner as a citizen of India, without taking any recourse to an ex-parte opinion of a Foreigners Tribunal against his mother, would be available to the petitioner,” the order reads.

The Gauhati High Court has set aside an order, which declared the petitioner as a foreigner.

The petitioner Md. Jamir Ali was referred to the Foreigners Tribunal 1st at Nagaon for a determination as to whether the petitioner is a person who had entered India subsequent to 24.03.1971, which resulted in registration of FT Case . In the reference, the petitioner examined his mother who was about 80 years at the time of rendering the evidence.   

The petitioner also exhibited the voters’ list of 1965 in respect of Goroimari village wherein  the name of  petitioner’s mother  appeared showing her husband to be Abbas Ali. The petitioner also exhibited the voters’ list of village Shillongoni of the year 1993 which shows his name  by indicating his father to be Abbas Ali. The petitioner also exhibited 1993 voters’ list of village Shillongoni which contains the name of Rustom Ali  showing his father to be Abbas Ali. The voters’ list of 1993 of village Shillongoni also contains the name of the petitioner’s mother  wife of Late Abbas Ali.   

The petitioner assails the order/opinion dated 29.06.2018 of the Foreigners Tribunal 1st at Nagaon in FT Case  by which he was declared to be a foreigner who had entered the State of Assam subsequent to 24.03.1971.  

In the  petition the petitioner takes a stand that his mother  in her  evidence had clearly stated that her husband was Abbas Ali Sarkar who was a resident of village Goroimari and that her husband died while the petitioner was still in her womb and in the circumstance the mother of the petitioner shifted to her parental home at village Shillongoni. She also stated that the petitioner Jamir Ali was born at village Shillongoni. The mother of the petitioner in her deposition further stated that she had shifted to village Shillongoni along with her three children . The petitioner also brought in the deposition of Gaon Burah of village Shillongoni and the Gaon Burah in his deposition had stated that he knew the petitioner Jamir Ali who was born at village Shillongoni although the Gaon Burah may have denied the knowledge about the father of the petitioner.

Having taken note of the aforesaid materials on record, the Division Bench of  Justice Achintya Malla Bujor Barua and Justice Arun Dev Choudhury held that a link is established to the extent that the mother of the petitioner in her deposition stated that she had shifted to village Shillongoni after the death of her husband along with her three children .The voters’ list of 1993 of village Shillongoni shows the name of the mother of the petitioner , showing her husband to be Abbas Ali as well as that of his elder brother Rustom Ali showing his father to be Abbas Ali and that of the petitioner again showing his father’s name to be Abbas Ali.

Further the Court noted that the voters’ list of 1965 of Goroimari village shows the name of Haleman Nessa showing her husband to be Abbas Ali and also that of Abbas Ali. The aforesaid materials clearly established the link of the petitioner with that of Abbas Ali of Goroimari whose name appeared in the 1965 voters’ list of the same village.   

The evidence of the mother of the petitioner  had not been controverted by the state authorities in cross examination before the Tribunal so as to dispute her claim that the petitioner is her son whose father died while he was still in the womb and that after the death of the father of the petitioner, the mother of the petitioner along with the petitioner had shifted to Shillongoni.   

Upon perusal of the order/opinion of the  Tribunal noted that the aforesaid materials on record have not been taken note of while declaring that the petitioner is a foreigner who had entered the State of Assam subsequent to 24.03.1971 .
As the High Court have arrived at the clear conclusion that the petitioner has established his link with Abbas Ali whose name appeared in the voters’ list of 1965 of Goroimari village and the materials through which the link was established have not been taken note by the learned Tribunal, the High court  accordingly, set aside the order/opinion dated 29.06.2018 in FT Case of the Foreigners Tribunal 1 st at Nagaon, Assam and declare that it cannot be held that the petitioner is a foreigner who had entered the State of Assam subsequent to 24.03.1971.

The Supreme Court of India has put a stay on the the deportation of a woman who was excluded from the final draft of the Assam’s National Register of Citizens.

A Bench comprising of Justice DY Chandrachud and Justice Hima Kohli have also sought the response of the Central government and that of the State of Assam on the plea which challenges the decision of the Gauhati High Court as well as the Foreigners Tribunal.

The Gauhati High Court in the year 2019 had affirmed that a 2017 Foreigners tribunal verdict that had deemed the petitioner as having entered Assam from Bangladesh after the cut-off date of March 25, 1971.

The petitioner however contended that the tribunal and the High Court have completely ignored the fact that the woman along with all her family members is an Indian citizen by birth also.

To prove herself, she produced a host of documents supporting the fact that she has been a citizen of this country and her name should feature in the draft list of NRC.

The petitioner has not only provided all her documents to prove her identity , but has also furnished the concern agency the documents belonging to her parents which range back in the pre-1971 lists as well as certificates from her panchayat to show that they have forever been citizens of India.

It was submitted that having discharged her burden under Section 9 of the Citizenship Act, the High Court and the tribunal in ignoring her documents had caused a grave miscarriage of justice.

.

ILNS: The Supreme Court has dismissed the plea filed by a woman against the order of the Gauhati High Court which had dismissed her appeal against the order of Foreigners Tribunal, which had said she is suspected to be a foreigner since 1971. 

A division bench of Justices Vineet Saran and Dinesh Maheshwari dismissed the petition on merits and also on grounds of a delay of more than 568 days, wherein the petitioner failed to satisfy the bench that the High Court erred in affirming the order passed by foreigners tribunal and failed to check the authenticity of documents such as certified voter list of 1965 and certificate issued by Secretary of Gaon Panchayat District Nagaon. 

In the present case, the petitioner was suspected to be a foreigner post March 25, 1971, and the onus was upon her to prove that she is an Indian citizen and not a foreigner, a reference was moved by the authority concerned seeking the clarity of the status of the petitioner before the Foreigners Tribunal, Nagaon. 

To substantiate her claim being an Indian citizen by birth, the petitioner produced the certified copy of voter list of 1965, in order to establish her lineage with projected parents, and a certificate issued by Secretary of Gaon Panchayat, District Nagaon. Moreover, other certificates issued by Gaon Burah of Erakapilli Village was shown by the petitioner before tribunal as noted by the High Court and this bench acknowledged the same. 

But importantly, aforesaid certificates were not proved by respective authors. The petitioner projected Rustom Ali and Malekjan as her father and mother respectively with their residential address at Village Lengeribori Gaon.

During the hearing today, the bench had questions.

Justice Vineet Saran: How can you justify they are your parents?

Counsel: 1965 certificate suggests so. The issue of parents is undisputed. Voter list  – we have produced NRC Data 70871 , but that have been declined. Also produced certified copy of voter list.

Justice Saran: Who certified and issued such list? How voter list can be authenticated by you? You show us, it is issued by government. We have seen papers carefully, simple copy cannot be relied upon.

Justice Saran: Have you filed certify copy of documents before HC as well?

Counsel for petitioner: I have to check.

Justice Saran: Have you filed before this court also?

Counsel: No

Justice Maheshwari: The said village is not yours, not of your parents and husband too.

Counsel: Your lordship, grant me the opportunity to file certified document before this court.

Justice Saran: Mr Counsel, you had the opportunity to file certified documents before this court also? Why did not you do it at the time of filing petition?

The  Gauhati High Court have drawn attention to the issue of documents submitted by ‘suspected foreigners’ being deemed insufficient by Foreigners Tribunals to establish Indian citizenship. 

These tribunals, quasi-judicial authorities in Assam, have been deciding on matters pertaining to citizenship in order to identify foreigners. 

The tribunal vide its order dated 30.06.2017 reached the conclusion that the defence witness of the petitioner has failed to discharge its burden as enshrined in Section 9 of Foreigner Act,1946 to prove that he is an Indian citizen. The division bench of High Court upheld the Foreigner Tribunal order and held, “the petitioner failed to produce any voter lists of her parents between year 1965 and 2010 showing the names of her parents in voter list of said period.”

The High Court held that –“ On further perusal of the records, we find that except the certified copy of the Voter List of 1965 showing the names of Rustom Ali and Malekjan as her parents, no further Voter List showing the names of her parents are relied nor exhibited by the petitioner and also lineage which the petitioner pleaded to be derived from her projected parents cannot be established by calling the Gaon Burah from a village other than Garu Khuti.”

Read Also: Bombay HC’s Nagpur bench declines to ask Centre to increase allocation of Remdesivir to Maharashtra

Section 9 in The Foreigners Act, 1946 deals with the burden of proof. It says: “If in any case not falling under Section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner of a particular class or description, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.”

An interlocutory application has been filed in Supreme Court seeking the immediate release of ‘declared foreigners’ detained across six detention centres in Assam citing the risk of contracting COVID -19 infection.

The Application for Directions in the Suo Motu matter is filed by the Applicant namely ‘Justice and Liberty Initiative’ which is an Assam based public charitable trust, registered in the year 2019. The Applicant organization is working on the ground in State of Assam to provide pro-bono legal aid to Indian Citizens who, for a variety of reasons, including for lack of legal support, poor documentation, lack of proper representation, poor assistance etc. have been accused of being illegal migrants or have been declared as foreigners by the Foreigners Tribunal. The Applicant organization comprises of leading lawyers and academicians who are committed to protecting the rights of these individuals and safeguard their faith in the Constitution and the judicial system of India.

It is pertinent to point out that the Applicant on 25^th of March has submitted a representation before the Chief Justice of India by way of an email in the present case seeking directions to release the “declared foreigners” detained in six detention centres across Assam after compliance of certain conditions specified by the Supreme Court and also seeking directions the Assam Government not to detain any “declared foreigners” in the detention centres or arrest them until the situation affected by COVID – 19 returns to normalcy.

The applicant submitted that Supreme Court by the directions in the suo motu matter at the appropriate time is a much-needed decisive step to protect the health, life and liberty of the prisoners and the people of this country. Various states have already started to release incarcerated persons in pursuance of the salutary orders passed by the Court and the extant emergent circumstances.

The applicant is further seeking extension of similar relief to declared foreigner among those 802 persons who are incarcerated in various detention centres in the state of Assam pursuant to Orders passed by Foreigners Tribunals.

It was also mentioned that detention of “declared foreigners” is not subsequent to any conviction or sentence. It is trite law that the protection of Article 21 is available not only to Indian citizens but to all persons. The Applicant organization also prayed that similar benefit of release be also extended to persons “declared to be foreigners” facing perpetual detention in Assam. The persons are “human beings” and they have a minimum basic right to live and to not die of COVID-19 in the precincts of a prison merely by virtue of being confined in close human contact i.e. a negation of social distancing.

-India Legal Bureau

Foreigners’ Tribunals are quasi-judicial bodies established as per the Foreigners’ Tribunal Order, 1964 and the Foreigners’ Act, 1946. It is for those who have been left out in the final NRC list or have been marked as ‘D’ meaning ‘doubtful’. The ones falling under this category have the right to appeal to the Foreigners Tribunal.

Under the provisions of Foreigners’ Act, 1946 and Foreigners Tribunal Order, 1964, only Foreigner Tribunals have the right to declare a person as a foreigner.

Thus, non-inclusion of a person’s name in the NRC does not by itself amount to him/her being declared a foreigner.

Appeal and Burden of Proof

However, if declared a foreigner or placed under the doubtful category ‘the burden of proof lies with the accused’. Section 9 of the foreigners act reads, “If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class- or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, lie upon such person.”

A person falling under such category will have the right to appeal at the Foreigners Tribunal.

Following the NRC row in Assam, Government of India extended the time-limit for filing of appeals from 60 days to 120 days. Amendments in this regard were made in the Foreigners (Tribunals) Amendment Order, 2019.

Powers of Tribunal

In the Foreigners’ Tribunal Order, 1964 the powers of the Tribunal have been laid down:-

• The Tribunal shall have the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908.
• The Tribunal can summon and ask for the attendance of any person and examine him/her on oath.
• The Tribunal can ask anyone to produce the required documents,
• The Tribunal can commission examining any witness, as and when required.

Foreigners’ Tribunals in Assam

As per the website of Government of Assam, there are 100 numbers of Foreigners Tribunals functioning in Assam. Before the foreigner tribunals came into existence Illegal Migrant Determination Tribunals (IMDT) existed. Following an Apex Court order IMDT Act was repealed.