Gauhati High Court.

The Gauhati HC’s setting aside of numerous Foreigners’ Tribunals' decisions points to a systemic rot

Several opinions on citizenship provided by various Foreigners’ Tribunals in Assam have been set aside by the Gauhati High Court for their arbitrary application of assessment metrics. The lack of structure, transparency, and predictability in the system violates citizens’ fundamental right to life with dignity, writes GAURI ANAND.

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THE Gauhati High Court has set aside multiple orders of Foreigners’ Tribunals in the span of one month. The tribunals had declared individuals to be foreigners in all of these cases in an erratic manner, with little substantiation of its process, indicating the need for a systemic overhaul. The Leaflet has accessed the following cases from November and December, which are illustrative of the rot in the system.

Sukhdev Ree

An ex parte order was passed against the petitioner Sukhdev Ree, a tea garden worker, in 2016, by which he was declared a foreigner. The tribunal held that even though the petitioner had filed his written statement and accompanying documents, he failed to appear for cross examinations on several occasions and discharge the burden of proof placed on him. It appears the petitioner was unwell at the time of the cross examinations, and could therefore not attend the hearings, due to which the matter was proceeded with ex parte. After the order was passed, the petitioner was detained, and put in a detention camp for a duration of three years, as a result of which, he was only able to challenge the decision after his release.

Ree submitted that he had sufficient evidence to prove that he is an Indian citizen, including voters lists from 1966 and 1970 which contained his father’s name, and voters lists from 1977 and 2005 where his own name is listed.

Observing that citizenship is one of the most important rights available to a person today and that even a quasi-judicial hearing before a Foreigners Tribunal has the power to render a person stateless, the Court held that it was important that the tribunal truly examine the evidence available with the petitioner to prove his citizenship, and granted him another opportunity to appear before the tribunal.

The petitioner’s bail is to remain effective during the pendency of the matter on furnishing a bail bond and a local surety. Passing directions to the authorities to collect necessary biometric data from the petitioner, the Court concluded that further failure by Ree to appear before the tribunal would result in this order being vacated and the previous order of the tribunal being revived.

However, the order of the Court was passed three days after Ree had died of cardiac arrest. Members of his family have been asked to appear before the tribunal on December 14.

Also read: In last 3 years, 8,992 persons referred to Foreigners Tribunals; 1,490 kept in detention centres and 691 released from detention centres in Assam — info shared in Parliament reveals

Rajendra Das

Rajendra Das, his wife Renubala Das and their three minor children were declared foreigners in an ex parte decision in 2018, after they failed to appear before the tribunal after being served notice and did not file written statements after seeking time. The petitioners informed the tribunal that Rajendra Das had been ill, which was the reason for his non-appearance. The family had sought a review of the order but the tribunal had turned them down.

The Court reiterated that such decisions affect the fundamental rights of citizens and must be made after evaluating evidence and not as a matter of procedure. The opinion of the tribunal is used to determine the citizenship of individuals by the relevant authorities, and potentially stripping a person of their fundamental rights must not be taken lightly, the Court said.

Also read: Suspicion as evidence: The Supreme Court’s Sarbananda Sonowal judgments, and the chimera of legitimacy of foreigner tribunals

Puspa Rani Dhar

In the matter of Puspa Rani Dhar, the Court made it clear that the reasoning used by the tribunal to reject the petitioner’s claim that she was Indian, were unacceptable. In her late seventies, Dhar had first received a notice from the foreigners’ tribunal in 2000, and has been harassed since and was declared a foreigner in 2017.

In setting aside the order of the tribunal, the Court took note that, firstly, the tribunal had rejected a certificate issued by the Railway authorities containing the names and dates of birth of the petitioner, and her husband, who served in the Northeast Frontier Railway, as irrelevant. The Court used this document to conclude that the probability of the petitioner being a foreigner was low given that “an Indian is most unlikely to marry a foreigner.”

Secondly, the Tribunal had accepted documents that indicated that the father of the petitioner had been a member of a medical union in Bengal in the year 1966, as well as the voters’ lists of 1997, 2005, and 2016 in which the names of the petitioner and her husband have been enlisted. However, it rejected a land title document from 2008 as indistinct and unreadable, even though it was clear that the name on the title was that of the petitioner.

In determining that the claims of the petitioner that her husband and father were both Indian citizens have not been disregarded by the tribunal, the Court went on to legitimise the land title document and the certificate issued by the Railway authority as sufficient evidence to prove that petitioner is an Indian citizen.

The counsel for the State had argued that even if declared an Indian, Dhar would be required to register herself with the Registering Authority. This submission was rejected by the Bench, which reiterated the acceptance of the proof that the petitioner’s father was in fact in India in 1966 suggests that she has been an Indian and not a foreigner at any point in time. The question of registration arises only when a person is found to be an illegal entrant from a specified territory between January 1, 1966, and 25 March, 1971, and who has thereafter been a resident of Assam.

Also read: Will decision of Foreigners’ Tribunal prevail over NRC in Assam?

Jantu Das

In this case, an ex parte order was passed in 2017 by a Foreigners’ Tribunal in Silchar on account of the petitioner’s failure to file a written statement or appear in court.

The tribunal held that Das had been given several opportunities over a ten-year period to appear before it, and had failed to do so. Interestingly, the counsel for the petitioner argued that the petitioner had never received the notice sent by the tribunal. An unknown individual had signed and received the notice on behalf of the petitioner, and the counsel for the State was unable to shed light on the identity or relation of such person to the petitioner. Since the notice was not properly served, the subsequent proceedings have been rendered illegal, and the petitioner has been granted another opportunity to appear before the tribunal.

Also read: Parliament Watch: Over 60,000 people declared foreigners in Assam without being heard between 1985 to 2019: minister informs Lok Sabha

Gias Uddin

The petitioner in this case challenged a 2017 order of a Foreigners’ Tribunal, declaring him a foreigner. The Court observed that the petitioner had submitted ten documents to prove his citizenship, including a government document that names him as a resident of Vill-Chaharia Pam, a duplicate of his primary school certificate, the 1965 voters list containing his grandfather’s name, a voters list from 1970 containing his father’s name, an order of a foreigners’ tribunal declaring his sister as a citizen, a sale deed for land in his father’s name from the year 1977, and computer copies of jamabandies in his and his father’s name.

The tribunal referred to the land documents and the jamabandies and concluded that as the name of the petitioner’s father has been spelt differently in both documents, they do not refer to the same person and that the persons in the documents are, in fact, two separate individuals. It stated that the petitioner was unable to prove that both are the same person. The tribunal also rejected one of the jamabandi documents containing the details of a purchase of land by the petitioner’s father, stating that it was useless in linking the petitioner to his father. Another jamabandi was rejected on the ground that the document was dated after the cut-off date of March 25, 1971, and therefore irrelevant.

Furthermore, the tribunal went on to state that considering the date of birth of the petitioner, his name should have been on the voters list alongside his father’s in the year 1995, the year he turned 18 and became eligible to vote. The failure of the petitioner to submit such a document was given weightage in the determination of his citizenship.

The Court found that the discrepancy in the spelling by one letter was only minor, and referred to the decision of the Supreme Court in Sirajul Hoque vs. State of Assam & Ors. (2019) to underscore that such minor differences in spellings were insignificant. Further, it observed that none of the documents could be read in isolation as no single document can prove or disprove citizenship, and must be considered alongside other material evidence. It also found similarities in ancestry in the order declaring the woman the petitioner claimed to be his sister, a citizen – the tribunal had not referred to this document in its order.

The High Court concluded that the tribunal had failed to consider multiple relevant documents or sufficiently appreciate the materials on record. The matter was accordingly remanded for reconsideration.

Also read: Citizenship, Enfranchisement and Assam

A systemic issue 

It appears that there is no reasonable expectation while appearing before a foreigners’ tribunal. These bodies seem to function based on whims and fancies, and there are no set guidelines as to the determination of citizenship. Despite submitting ten documents to prove his citizenship, Gias was declared a foreigner. One is left to ponder about the fate of poor, illiterate, or uneducated individuals who do not possess as many documents.

Worryingly, many regions of Assam continue to reel from the effects of natural calamities, with many losing all their material possessions and being permanently displaced. Expecting any and all documentation, in perfect condition, nonetheless, seems unrealistic to say the least. Puspa Rani is one of the luckier ones – her name remained legible in the land title document despite most of the document being illegible.

Furthermore, passing ex parte orders against individuals who are largely poor or daily-wagers or from single-earner families without investigating the reasons for non-appearance or delay, displays a callous attitude towards people’s right to life with dignity.

These are just a few of the cases that have been set aside by the High Court; there are many more. The ease with which persons are being determined stateless is appalling and indicates systemic apathy. Inefficient delivery of notices, disproportionate burdens of proof, insufficient appreciation of available evidence, arbitrary rejection of documentation – there is no method in this madness.

Also read: SC orders release of man declared illegal migrant by Foreigners Tribunal without being served proper notice

In September 2021, the Assam government directed Foreigners’ Tribunals not to pass ‘consequential orders’ on detention and deportation, as they were only constituted to give an “opinion”, which begs the question – how many more Sukhdev Rees have been detained for years on the basis of such “opinions”?

It is imperative that the State first get its house in order before it goes about implementing a massive initiative that holds the fate of hundreds of thousands of its citizens. Stringent guidelines and clarity of procedure are necessary first steps in this endeavour.

(Gauri Anand is an environmental lawyer and part of the research and editorial team at The Leaflet. The views expressed are personal.)

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