Read the judgement here.
Date of the Decision: 15.07.2021
Court: Gauhati High Court
Judges: Justice N. Kotiswar Singh and Justice Soumitra Saikia
Summary: The Gauhati High Court held that the Tribunal went beyond its jurisdiction by declaring the Petitioner a ‘foreigner’ on a ground not referred to it. The High Court observed that the Tribunal cannot assume suo motu jurisdiction to give an opinion beyond what is sought and the matter was remanded to the Tribunal for a fresh decision in terms of the reference.
Facts: The Superintendent of Police (Border) referred the Petitioner, along with her family members, as a ‘foreigner’ coming into Assam after 01.01.1966 and before 25.03.1971. This power was exercised under Order 2(1) of the Foreigners (Tribunals for Assam) Order, 2006. Order 2(1) states that the Central Government may refer the question as to whether a person is or is not a foreigner to a Foreigners’ Tribunal. The High Court noted that the “power of the Central Government to make reference in terms of Order 2(1) has since been delegated” (paragraph 8). It is on the basis of this reference that the Tribunal registered a case and proceeded to answer it. The Tribunal held that the Petitioner was a ‘foreigner’ who entered India (illegally) after 24.03.1971, the cut-off date under Section 6A of the Citizenship Act.
However, the terms of reference clearly stated that the Tribunal had to determine whether the Petitioner, along with her family members, is a ‘foreigner’ coming into Assam, after 1.01.1966 and before 25.03.1971. Thus, the writ petition was filed before the High Court on the ground that by declaring the petitioner as a ‘foreigner’ who entered India illegally after 24.03.1971, the Tribunal went beyond its jurisdiction.
Holding: The Court observed that “In terms of Order 2(1), the Tribunal gets its jurisdiction to render its opinion only when any reference is made to it under Order of the Foreigners (Tribunals for Assam) Order, 2006… It is only when a reference is made as above that the Tribunal assumes jurisdiction to render its opinion… the Tribunal will have to confine its opinion to the terms of the reference made to it and not go beyond the same…Therefore, the view taken by the Tribunal that the Foreigners’ Act, 1946 or the Orders framed thereunder do not bind it to the terms of the reference is not correct. The Tribunal cannot suo motu assume jurisdiction to give an opinion which is not sought” (paragraph 12). In other words, the High Court held that the Tribunal went beyond the reference as no opinion was sought from the Tribunal as to whether the petitioner had entered India after 24.03.1971 or not. Further, the Tribunal does not have suo motu jurisdiction to give an opinion beyond the reference. Consequently, the Court set aside the impugned opinion and remanded the matter to the Foreigners Tribunal for a fresh decision in terms of the reference made i.e. render a finding as to whether the Petitioner entered India between 01.01.1966 and 25.03.1971 or not.
Significance: The decision of the Court reaffirms the position laid down in Santosh Das v. Union of India and SonaKha @ Sona Khan v. Union of India and Ors. In both of these cases, references were made against the respective petitioners suspected to be ‘foreigners’ belonging to the 1966-1971 stream. The Gauhati High Court had observed that the Tribunal was only required to answer the reference either in favour of the State or in favour of the petitioners, and not go beyond the terms of the reference. The present case reiterates the law on this point. In summation, the Tribunal cannot suo motu assume jurisdiction to give an opinion that is not sought. Accordingly, the reference has to be limited to the period of time referred to it.
The distinction between a reference alleging a person to have entered into Assam on or after 01.01.1966 but before 25.03.1971, and a reference alleging entry into Assam on or after 25.03.1971, becomes relevant when seen in the light of Section 6A of the Citizenship Act. Under Section 6A, a ‘foreigner’ having entered into Assam in the 1966-1971 stream, is entitled to Indian citizenship if he has been a resident of Assam for 10 years. However, this benefit has not been conferred on those who entered Assam on or after 25.03.1971. Thus, it is important for the Tribunal to not extend its jurisdiction.
In addition, this rule is important in view of the principles of natural justice. It is important to give due notice to the alleged ‘foreigner’ about the main grounds against them. This will inform the defence that needs to be put up. In case the main grounds against the alleged ‘foreigner’ are distinct from what the Tribunal deliberates, it will strip the individual of a reasonable opportunity to present their case.
Table of Authorities:
- Santosh Das v. Union of India, (2017) 2 GLT 1065.
- SonaKha @ Sona Khan v. Union of India and Ors., WP(C) No.1293/2021.
References:
- Nupur Thapliyal, Foreigners’ Tribunal Can’t Suo Moto Assume Jurisdiction To Give An Opinion Which Is Not Sought While Answering Reference: Gauhati High Court, Live Law, 30th September 2021.
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Khushi Singh.
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