Sujab Ali v. Union of India, WP(C)/2221/2020

Read the judgment here.

Date of decision: 20.08.2021

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh and Justice Soumitra Saikia

Summary: The Gauhati High Court quashed an order passed by the Foreigners Tribunal, declaring the petitioner to be a ‘foreigner’ who entered India after 25.03.1971. The High Court held that the order neither demonstrated proper consideration of the Petitioner’s evidence nor provided sufficient reasons for rejecting it. The matter was remanded back for fresh hearing and the Petitioner was released from detention subject to conditions.

Facts: The Petitioner was referred to the Foreigners’ Tribunal (FT) on the ground that he was a ‘foreigner’ who entered India after 25.03.1971. In response, the Petitioner submitted that he is a ‘citizen’ and produced 4 witnesses and 39 documents to support his case. Since he was born on 11.01.1992, he submitted evidence to trace a lineage to his parents and establish that they were born in India prior to the cut-off date of 24.03.1971. This means that the Petitioner was seeking to prove that his parents are citizens under Section 6A of the Citizenship Act, 1955 and that he is a descendant of ordinary residents of Assam prior to 01.01.1966 or 25.03.1971. The FT did not consider the evidence as admissible and did not provide reasons for rejecting the documents and witness testimonies. It also held that the evidence did not prove the link between the Petitioner and his alleged parents, grandparents or great-grandparents. The FT declared the Petitioner as a ‘foreigner’ who entered India after 25.03.1971. Accordingly, it ordered for his detention, deportation and the deletion of his name from all voter lists.

The Petitioner filed the present writ petition challenging this order. The Petitioner contended that the FT did not assess and properly consider the evidence before it. The counsel on behalf of the FT rebutted this argument by citing Section 9 of the Foreigners Act, 1946. Section 9 places the burden of proof on the person considered to be a ‘foreigner’ to show that he is not a ‘foreigner’.

Holding: The High Court examined the FT’s order. First, it held that,“The Tribunal, while referring to all the 39 exhibits, has not described as to why…the documents…were not accepted by the Tribunal. The Tribunal did not give reasons as to why the exhibits are not admissible in evidence. What is also noticed is that the oral evidence by four (4) witnesses produced by the petitioner including himself have been disbelieved without giving any reasons” (paragraph 12). In other words, the High Court held that the FT did not provide reasons for why it rejected the documentary or oral evidence. In this regard, the Court affirmed the position on the appreciation of evidence laid down in State of Assam v. Moslem Mandal. It held that the FT has to consider and assess all of the evidence before coming to the conclusion that it is insufficient for establishing linkage.

Second, the Court discussed the standard of admissibility with respect to the documents. It held that: “If the documents satisfy the requirements of law, the Tribunal has to accept them and determine whether they establish the linkage that the petitioner seeks to establish” (paragraph 14). In other words, documents have to be accepted as long as the procedure for admission satisfies the requirements under the Indian Evidence Act, 1872. In the present case, the Court noted that although the documents were admitted as evidence, it was not clear from the impugned order whether the documents satisfied the procedure laid down under the evidence law. Thus, the FT must reconsider the documents in light of whether the requirements of admissibility had been satisfied or not. 

Third, the Court observed that while 39 documents were admitted as evidence, the “order did not contain any observations about the manner in which they were presented before the Tribunal” (paragraph 14). The Petitioner produced photocopies from the certified copies of land documents, which were accepted as exhibits by the Tribunal. “As per the Indian Evidence Act 1872, unless the documents presented before the court satisfy the procedure laid down under the Act, the same will not be admissible” (paragraph 14). The order of the Foreigner’s Tribunal did not indicate whether such procedure had been fulfilled or not by the petitioner. If the documents satisfy the requirements of law, the Tribunal has to accept them and determine whether they establish the linkage that the petitioner seeks to establish. 

The Petitioner argued that all oral evidence must be considered in terms of Section 50 of the Evidence Act. Section 50 states that when the court has to form an opinion on the relationship between two or more persons, then the opinion, expressed by conduct, of any person who would have a special knowledge about the (impugned) relationship, either as a member of the family or otherwise, is a relevant fact. In other words, the opinion of a person who has knowledge about the impugned relationship is a relevant fact for the purpose of evidence. In this regard, the High Court referred to the Supreme Court’s discussion on Section 50 in the case of Dolgobinda Paricha v. Nimai Charan Misra. It was held that there are three essential requirements of Section 50. Crucially, the Court held that the term ‘opinion’ in Section 50 means “something more than mere retelling of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question” (paragraph 15). In other words, opinion means a belief or a conviction that results from one’s thoughts on a particular question. Resultantly, the Court must infer this opinion through conduct, which cannot be willed without the inner existence of the opinion. Then, the Court assesses this opinion to determine the existence of the relationship in question.

The Court applied Section 50 of the Evidence Act and held that “under the circumstances, we find that the documents exhibited and the oral evidences adduced by the petitioner before the Tribunal have not been considered by the Tribunal, and no reasons are discernible in the impugned order so as to enable this Court to appreciate the basis of rejection of these evidences by the Tribunal” (paragraph 16). Therefore, the writ petition was partially allowed. Accordingly, the Court remanded the matter back to the Tribunal for rehearing and arriving at a judicious finding based on proper appreciation of evidence. 

Lastly, the Court took notice of the fact that the Petitioner had been in detention since the date of the FT order and ordered his release on bail. However, the bail was on the condition that the Petitioner will appear before the Deputy Commissioner of Police, Guwahati and furnish a bail bond of Rs.5000/. At the time of executing the bail bond, the Deputy Commissioner of Police (B), Guwahati shall take photographs of the Petitioner and also record the biometrics of the iris of both the eyes as well as the fingerprints of both the hands of the Petitioner. 

Significance: The High Court recognised the applicability of Section 50 of the Indian Evidence Act, 1872 to proceedings before the FTs. This is in line with the earlier decision in Haider Ali v. Union of India and in contrast with the previous decision in Nur Begum v. Union of India. This is a significant development in the field and will lead to a positive outcome. FTs routinely disregard oral evidence and have held individuals to be foreigners due to the lack of documentary evidence of linkage in their cases, even when their parents or siblings testify in the FT about the identity of the parents of the suspected person. Section 59 of the Evidence Act recognises oral evidence as a valid mode of proof. In particular, Section 50 expressly acknowledges the relevance of oral evidence for cases on establishing the existence of a relationship between two persons. The failure to consider oral evidence as valid in citizenship cases has a disproportionate impact on poor and illiterate married women who do not have birth certificates or school records due to their disadvantaged socio-economic backgrounds. Such women have no documentary proof of their parents’ identities. Their existence is documented in government records only in their adult lives as wives of their husbands following the patriarchal norms of identification of women alongside their husbands. This is also true for children. Some children, especially girls, do not go to school and hence do not have school certificates. Some struggle to establish their identity in the absence of fathers. Similarly, transgender persons are also discriminated against in the process. Swati Bidhan Baruah explained that transgender persons are likely to lack access to the necessary legacy and linkage documents. Even in cases where such documents are available, these documents are often rejected on the basis of the inconsistencies in their gender and names. Therefore, the recognition that Section 50 is to be applied is an important step towards ensuring that marginalized groups are not disproportionately burdened when defending their citizenship.

At the same time, this judgment is flawed insofar as the High Court imposed onerous conditions for bail. We have previously criticized this in our discussion of Samsul Hoque v. UOI. Notably, the Court did not even condemn the wrongful detention as a consequence of an inadequately reasoned order passed by the FT.

Table of Authorities:

1. State of Assam and Anr. v. Moslem Mandal and Ors., 2013 (1) GLT 809
2. Dolgobinda Paricha v. Nimai Charan Misra, 1959 AIR 914 
   1. Affirms discussion of Section 50 in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299, 309.

Resources:

1. Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in the Indian state of Assam, Statelessness and Citizenship Review, Volume 2 No 1.
2. Designed to Exclude: How India’s courts are allowing Foreigners Tribunals to render people stateless in Assam, Amnesty International, 2019. 
3. Arushi Gupta and Eeshan Sonak, Case Note: Samsul Hoque v. Union of India, WP(C)/6056/2019, Parichay Blog, 19^th September 2021. 
4. Parichay, Interview With Swati Bidhan Baruah, Parichay Blog, 5^th October 2020.
5. Trisha Bhapandit and Padmini Baruah, ‘Untrustworthy’ and ‘Unbelievable’: Women and the Quest for Citizenship in Assam, Statelessness and Citizenship Review, Vol. 3 No. 1.
6. Sital Kalantry and Agnidipto Tarafder, Death by Paperwork: Determination of Citizenship and Detention of Alleged Foreigners in Assam, Cornell Legal Studies Research Paper, 2021. 
7. Sadiq Naqvi, Captain Sanaullah’s Burden Of Extraordinary Proof, Article 14, 19^th May 2020. 

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 Khush Alam Singh and Arushi Gupta.

Mamtaz Begum v. Union of India, WP(C)/7305/2021

Read the judgement here

Date of decision: 03.01.2022

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh

Summary: The petitioner was declared as a foreigner by an ex parte order of the Foreigners’ Tribunal. The Gauhati High Court remanded the matter to the Foreigners’ Tribunal for reconsideration on the ground that the Tribunal had not actually arrived at a specific finding as to when the petitioner had entered India. 

Facts: The petitioner had failed to appear before the Foreigners Tribunal No. 6, Barpeta, on two occasions. The Tribunal passed an ex parte order against her on 11.03.2019, declaring her a foreigner on the ground that she had entered India illegally on or before 25.03.1971. 

Holding: The petitioner argued that she could not appear before the Tribunal as she had been preparing for the case by gathering necessary evidence. The Standing Counsel for the Foreigners Tribunal argued that the petitioner may be allowed to appear before the Tribunal again, provided that costs were imposed upon her for non-appearance. The Gauhati High Court remanded the matter to the Foreigners’ Tribunal, asking it to deliver a specific finding with respect to the status of the petitioner. It found that the “finding arrived at by the learned Tribunal is ambiguous as there is no specific finding as to whether the petitioner had entered India (Assam) illegally before 25.03.1971 or after 25.03.1971 with different consequences.” (paragraph 6)

Significance: The Gauhati High Court correctly noted that “if a person is declared to have entered illegally India (Assam) before 25.03.1971, certain benefits would accrue to him or her as provided under Section 6A(3) of the Citizenship Act, 1955.” (paragraph 6) According to Section 6A, persons who settled in Assam between 1^st January 1966 and the cut-off date would have to register themselves according to the rules laid down by the Central Government and would enjoy all other rights except the right to vote for a ten-year period. The Foreigners Tribunal, in finding that the petitioner had entered the country illegally on or before 25.03.1971, neglected to note this aspect.

This lapse on the part of the Tribunal, and its attempt to pass it off as a typographical error, is part of larger, systemic issues that plague Foreigners Tribunals in Assam. These Tribunals are quasi-judicial bodies, often staffed by untrained persons with no knowledge of law, following opaque procedures that ultimately harm petitioners. This case is illustrative of the improper application of the law by the Tribunal in determining the question of citizenship. 

Resources:

1. Designed To Exclude: How India’s Courts Are Allowing Foreigner Tribunals To Render People Stateless In Assam, Amnesty International India, 2019. 
2. Talha Abdul Rahman, Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam, Statelessness & Citizenship Review, 2020. 

Section 6A and Assam, Parichay Blog, 17 July 2021.

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 Radhika Dharnia.

Idrish Ali @Idris Ali v. Union of India, WP(C)/7349/2021

Read the judgment here.

Date of the decision: 03.01.2022

Court: High Court of Gauhati

Judges: Justice N Kotiswar Singh and Justice Malasari Nandi

Summary: The High Court of Gauhati set aside the ex-parte order passed by the Foreigner’s Tribunal declaring the Petitioner as a foreigner. The High Court decided to give the Petitioner another opportunity to make his case as the Petitioner was unable to attend the proceedings because he could not collect necessary documents in time to contest the reference. 

Facts: The Petitioner had appeared before the learned Tribunal after receipt of the notice and sought time to collect documents and to file the written statement. Later the Petitioner failed to appear before the Tribunal on three occasions and file the written statement as he could not collect the necessary documents to file the statement in time. Consequently, the Tribunal, being of the opinion that a reasonable opportunity has been given to the Petitioner, passed an ex-parte order declaring him as a foreigner on 06.10.2018. Pursuant to the order, the Petitioner was arrested on 12.03.2021 and remains in detention. 

Holding: The Court set aside the impugned order passed by the Foreigner’s Tribunal deciding to give the Petitioner another opportunity to make his case before the Tribunal. The Court noted “it is not the case of total absence of the petitioner to appear before the Tribunal. Rather, it appears that the inability of the petitioner to appear before the tribunal stems from the fact that he could not collect the necessary documents and file the written statement in time to contest the reference.” (Para 5) The Court clarified that the ex-parte order was not valid as the Petitioner was not completely absent from the entire proceedings and has a reasonable cause justifying his inability to appear before the Tribunal. 

The Court allowed the Petitioner to be released on bail  on furnishing a bail bond of Rs.5,000/- with two local sureties of the equal amount and imposed a fine of Rs. 2,000/- on the Petitioner.

Significance: This decision is significant because this is possibly the first time when the High Court has set aside an FT ex-parte order where the inability of the petitioner to appear before the Tribunal stemmed from time taken to collect necessary documents. It reaffirms the importance of giving sufficient opportunity to the respondent to make their representation before the FT passes an ex-parte order. This decision also highlights the problem of routine ex parte orders passed in cases due to complexity of proceedings. The decision means that a ‘reasonable opportunity’ given to the Petitioner cannot disregard the difficulties faced by the respondents in making a representation and sufficient time should be given to do so. 

Another significant element is the bail condition and the fine imposed by the High Court akin to previous orders of the court. In this case,  the court fails to consider that the Petitioner has had to remain in detention for almost a year before he could even make a fair representation and the amount may not be affordable for the Petitioner. 

Table of authorities:

1. Rahima Khatun v. Union of India WP(C)/8284/2019.   
2. Dharmananda Deb, Foreigners Tribunals In Assam : Practice Lamp; Procedure, Live Law, 13 June 2019
3. In Re The Union of India and Ors. 

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 Dewangi Sharma.

Nandita Haksar v. State of Manipur, W.P.(Crl.) No. 6 of 2021

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Date of decision: 03.05.2021

Court: Manipur High Court 

Judges: Chief Justice Sanjay Kumar and Justice Lanusungkum Jamir 

Summary: The Manipur HC held that the principle of non-refoulement was part of Article 21, thereby protecting Myanmarese nationals who entered India illegally under the threat of persecution by declaring them to be ‘refugees’ and not ‘migrants’.

Facts: The case arose out of a writ petition filed by the petitioner on behalf of 7 Myanmarese citizens before the Manipur HC. After the military coup in Myanmar during February 2021, the military junta banned Mizzima, an established Myanmarese media and news service, and arrested/detained several of its journalists. Of the 7 individuals represented in the petition, 3 were journalists, the others being the wife and 3 minor children of one journalist. They entered India and took shelter at Moreh in Tengnoupal district, Manipur, and sought the help of the petitioner as they feared that they would be sent back to Myanmar due to lack of proper travel documents.

The writ petition was filed on behalf of the 7 Myanmarese nationals, requesting passage for them to travel to New Delhi to seek protection from the United Nations High Commissioner for Refugees (UNHCR). 

The Home Ministry, Government of India, vide its letter dated 10.03.2021, had directed the authorities of the border States in North-East India to check the flow of illegal migrants coming into India from Myanmar. However, a letter dated 29.03.2021 was issued by the Government of Manipur stating that it would come to the aid of Myanmarese nationals who had illegally entered the State.

By its order dated 17.04.2021, the Manipur HC adjourned the case to enable the State and the Central Governments to put forth their stands. In its order dated 20.04.2021, the Court directed the State authorities to arrange for the safe transport and passage of these seven persons from Moreh to Imphal, where they resided in the petitioner’s local residence. 

Holding: The petitioner argued that the Home Ministry’s letter did not draw a distinction between a ‘migrant’ and a ‘refugee’ and that the 7 Myanmarese citizens were refugees, and sought their safe passage to approach the UNHCR at New Delhi for protection. 

The Manipur HC held that the Myanmarese citizens could not be categorized as migrants. According to the court, “The word ‘migrant’ is ordinarily understood to refer to a person who moves from one place to another, especially in order to find work or better living conditions. The word ‘refugee’, on the other hand, refers to a person who is forced to leave his/her country in order to escape war, persecution or natural disaster” (paragraph 6). As per the court, the 7 persons were compelled to flee Myanmar under threat of persecution, and were therefore asylum seekers, and not migrants. 

The HC also granted them safe passage to New Delhi to enable them to avail suitable protection from the UNHCR. This decision of the court was based upon its finding that Article 21 of the Constitution of India encompasses within its scope the principle of ‘non-refoulement’.

‘Non-refoulement’ is a principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on race, religion, nationality, membership of a particular social group or political opinion.

Significance: This decision clearly states India’s responsibilities towards refugees and asylum seekers despite India not being a signatory to the 1951 Refugee Convention. 

The Manipur HC read non-refoulement within Article 21 of the Constitution and concludes that “The far-reaching and myriad protections afforded by Article 21 of our Constitution, as interpreted and adumbrated by our Supreme Court time and again, would indubitably encompass the right of non-refoulement…” (paragraph 10). The Manipur High Court’s reading of non-refoulement into Indian law conflicts with India’s official position, and the court also takes a step that the Supreme Court was reluctant to take in its interlocutory order in the case of Mohammad Salimullah v. Union of India. 

The Central Government’s position is that since it is not a signatory to the Refugee Convention or the Protocol Relating to the Status of Refugees, it does not have any obligation to follow the principle of non-refoulement. It has even argued before the Supreme Court that it does not consider non-refoulement a part of customary international law. 

In Mohammad Salimullah (our analysis here), the Supreme Court had, by way of an interim order, rejected Rohingya refugees’ constitutional right to remain in India and allowed their deportation by the Government of India, on the ground that the right not to be deported was concomitant to the rights under Article 19(1)(e). This decision has been widely criticized for lack of sound legal reasoning. In Nandita Haksar, however, the Manipur HC correctly notes that Salimullah “was an interlocutory order and no ratio was laid down therein, constituting a binding precedent under Article 141 of the Constitution.” (paragraph 18). Unlike the Supreme Court in Salimullah, the Manipur High Court drew the principle of non-refoulement from Article 21, which extends to all persons regardless of nationality. Thus, despite India not being a signatory to the Refugee Convention, it has to follow the principle of non-refoulement since it is enshrined in Article 21 of the Constitution. 

This case also distinguishes itself from Salimullah on the argument of national security. The Manipur HC concluded that the petitioners presented no threat to national security, reaching this conclusion on the basis of various documents such as a certification of refugee status by UNHCR, and a sanction of ‘Visa Gratis’ by the Indian government to one of the petitioners. In Salimullah, on the other hand, the Supreme Court took note of ‘serious allegations of threat to internal security’ (paragraph 14) which was partly the reason it allowed the refugees’ deportation. Whereas the Manipur HC referred to several documents in order to assess whether the petitioners would be a threat to national security, the Supreme Court did no such analysis. 

This is also not the first time that a court has enshrined non-refoulement within Article 21. In Ktaer Abbas Habib Al Qutaifi v. Union of India, the Gujarat HC had reached a similar conclusion. In Ktaer Abbas, the petitioners were Iraqi refugees who sought release from detention and invoked the principle of non-refoulement to request that they be allowed to approach the UNHCR. The Gujarat HC allowed their request, holding that the principle of non-refoulement is encompassed in Article 21 of the Constitution, despite India not being a signatory to the Refugee Convention. 

While the Manipur HC’s decision is appreciable in that it protects the petitioners from persecution, its approach of distinguishing between migrants and refugees and privileging the latter over the former warrants criticism. The  migrant/refugee distinction has been criticized for ignoring the fact that economic violence can be a key driver of migration and is no less insidious than religious, political, or ethnic persecution, and it presents the danger of reinforcing a false distinction, namely that migrants, who are moving for economic reasons, may be less deserving of asylum and aid than refugees, who are escaping war or persecution. This could, in turn, lead to blurring or even legitimization of the injustice faced by migrants. Some scholars have even argued that the distinction should be done away with. The court, by merely defining the categories of refugees and migrants, falls short of engaging with the issue in the depth and nuance that it deserves. 

Table of Authorities:

1. Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296. 
2. Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 CriLJ 919.

Resources:

1. Gautam Bhatia, Breathing Life into Article 21: The Manipur High Court’s Order on Refugee Rights and Non-Refoulement, Indian Constitutional Law and Philosophy, 3 May 2021.   
2. Gautam Bhatia, Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case, Indian Constitutional Law and Philosophy, April 2021.   
3. Snehal Dhote, Right to Life Encompasses Non-refoulement: Indian High Court Advances Refugee Policy, Jurist, 30 June 2021. 
4. Heaven Crawley & Dimitris Skleparis, Refugees, migrants, neither, both: Categorical fetishism and the politics of bounding in Europe’s ‘migration crisis’, Journal of Ethnic and Migration Studies, 6 July 2017. 
5. Dr. Ben Whitham, On seeking asylum from poverty: Why the refugee/migrant paradigm cannot hold, Mixed Migration Platform, 30 September 2017. 

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 Radhika Dharnia.

Mohammad Salimullah v. Union of India, W.P. No. 793 of 2017

Read the judgment here

Date of decision: 08.04.2021

Court: Supreme Court of India

Judges: Chief Justice S.A. Bobde, Justice A.S Bopanna and Justice V. Ramasubramanian

Summary: The petitioners, Rohingya refugees, sought the release of detained Rohingya refugees in Jammu who were facing deportation. The Supreme Court allowed deportation of the refugees, holding that the right against deportation is concomitant to rights under Article 19(1)(e). 

Facts: In March 2021, several newspaper reports indicated that about 150­-170 Rohingya refugees detained in a sub jail in Jammu were facing deportation back to Myanmar. This was done in line with a 2017 circular issued by the Home Ministry to all State Governments/UTs, which advised them to initiate deportation processes against refugees housed in various camps across the country. The petitioners, who were themselves Rohingya refugees, sought, through an interlocutory application, release of the detained Rohingya refugees and a direction to the government to not deport them. The present petition was therefore an interlocutory application in the main case. 

Holding: The petitioners argued that despite India not being a signatory to the 1951 Refugee Convention, the principle of non-refoulement is part of the right guaranteed under Article 21 of the Constitution. 

The Supreme Court dismissed the plea and ordered that the detained refugees be deported, following proper procedure. The court stated that, “the right not to be deported is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).” (paragraph 13), implying that India is not bound by the principle of non-refoulement. It also acknowledged the government’s concerns that refugees posed threats to internal security and would lead to increase in illegal immigration. 

Significance: While the Supreme Court’s decision can be understood as implying that the principle of non-refoulement is not a part of Article 21, this was not explicitly stated in the court’s order. So, it would be incorrect to say that the present case lays down an authoritative position of law with respect to non-refoulement and Article 21. 

The court’s decision is only an interlocutory order, and therefore should not be considered as laying down a ratio, as was also correctly noted by the Manipur HC in Nandita Haksar v State of Manipur (our analysis here). The issue of non-refoulement is a substantial question of law, and should be decided by a proper Constitution Bench. The petitioners’ arguments of Article 21 and non-refoulement amounted to a substantial question of law, which should have been referred to a Constitution Bench in line with Article 145(3). Instead, it was determined by a division bench in a mere interlocutory order. 

The court locates the right to not be deported within Article 19(1)(e), a misinterpretation of the petitioners’ arguments. The petitioners did not argue for a total right against deportation, they argued that that the refugees had a right not to be deported to a country accused of genocide against them. Deporting them would violate their right to life under Article 21, which is guaranteed to all persons. 

Further, the court acknowledged that, “National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.” (paragraph 12), but in its order, it referred to no such sources of law. Nothing in Indian law contravenes the principle of non-refoulement, and therefore, by the court’s own reasoning, it had the leeway to read non-refoulement into Indian law which it did not do. The court disregarded the fact that other international treaties that India is a party to, such as the ICCPR, encapsulate the principle of non-refoulement and will stand breached if the refugees are deported. Such a breach would also violate Article 51 of the Constitution, which calls for honouring international treaty obligations. 

By disregarding international conventions, the Supreme Court also contradicted its own judgement in Vishakha v. State of Rajasthan, wherein it had held that international conventions that are consistent with fundamental rights must be read into the Constitution. 

The decision also represents a break from several High Court judgements that have read non-refoulement into Article 21. The Gujarat HC in Ktaer Abbas Habib Al Qutaifi v. Union of India, and the Delhi HC in Dongh Lian Kham v. Union of India, have both held non-refoulement to be a part of Article 21. Both cases involved refugees from different nations seeking protection against deportation. 

The court’s acceptance of the national security argument is also flawed and stands in contrast to the Manipur HC’s treatment of a similar argument advanced before it in Nandita Haksar v. State of Manipur. Unlike the present case, in Nandita Haksar, the Manipur HC concluded that the petitioners, Myanmarese refugees seeking safe passage to UNHCR, represented no threat to national security. In order to reach this conclusion, the court examined several documents of the petitioners, noting the circumstances under which they had sought refuge in India. However, in the present case, the Supreme Court undertook no such examination and seems to have relied on the government’s unsubstantiated arguments.

Resources:

1. Gautam Bhatia, Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case, Indian Constitutional Law and Philosophy, April 2021.   
2. Shriansh Jaiswal and Ananya Kumar, India’s Response to Rohingyas, Jurist, July 2021. 
3. Malcolm Katrak and Shardool Kulkarni, Refouling Rohingyas: The Supreme Court of India’s Uneasy Engagement with International Law, Journal of Liberty and International Affairs, June 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 Radhika Dharnia.

Golapi Begum v. Union of India, WP(C)/2434/2020

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:

1. Santosh Das v. Union of India, (2017) 2 GLT 1065.
2. SonaKha @ Sona Khan v. Union of India and Ors., WP(C) No.1293/2021.

References:

1. 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, 30^th 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. 

Marium Khatoon v. State of Bihar, CWJ No. 390 of 2020

Read the judgment here.

Date of decision: 18-08-2021

Court: Patna High Court

Judges: Chief Justice Sanjay Karol and Justice S. Kumar

Summary: The Patna High Court intervened and expedited a matter for repatriation of two Bangladeshi illegal migrants staying in an After Care Home in India. The court conducted an investigation of these Homes and ordered the State Government to set up Detention Centres for such migrants in accordance with Central Government guidelines.

Facts: Two minor Bangladeshi migrants were arrested from the Patna Railway Station and kept in After Care Homes (Nari Niketan) for several years. The two migrants were admittedly illegal migrants who had entered India without valid documents. Their repatriation was still pending. The question to be addressed was about the conditions in which foreign citizens who had been prosecuted, convicted and had completed their sentence, were being kept. The court constituted a committee of three advocates to look into the conditions of the After Care Home in a fair manner. The Committee reported that migrants were being treated well, with no sexual/mental harassment or slavery, appropriate medical assistance, nourishment and tutoring. Meanwhile, the two migrants were deported back to Bangladesh. The amicus argued that such migrants should not be staying in such Homes and instead the State should create a Holding Centre or Detention Centre for migrants arrested in the State of Bihar.

Holding: The court held that such Detention Centre could not be created within the jail and must be created in terms of the instructions given by the Central Government. It is a primary duty of the State to create such Detention Centres. It was also held that it is a duty of the Union of India to respond to the court’s queries, including all its Departments and Ministries. Accordingly, the State eventually took up the setting up of such Detention Centres. The court further asked for details about (a) the time frame for setting up of the Detention Centre, (b) whether the temporary Detention Centre is equipped with the requisite minimum infrastructure stipulated under Chapter-4 of Model Detention Centre/Holding Centres/Camp Manual, 2019, (c) what steps have been taken by the State Government for sensitizing the general population of Bihar about the mechanism of identifying and deporting illegal migrants from Bangladesh, and (d) steps taken to digitalize the records sought to be maintained under Section 6 and Section 7 of the Foreigners’ Act 1946.

The matter currently stands pending and the State Government is yet to reply to the court.

Significance: Both, the judgment as well as the action of the executive here are quite irregular. As has been stated by an advocate of the Calcutta High Court, “Ideally, a legal proceeding should come to a halt as soon as the subject matter of such proceeding is exhausted. In this case, the writ petition ought to have been disposed of as soon as deportation took place, as the fate of all concerned persons was decided.” On the executive’s part, the two migrants were kept in the Nari Niketan, instead of being tried under the Foreigners’ Act. Yet, the court never called this into question. The court’s order is also plagued with several factual inconsistencies, such as there being three and not two women from Bangladesh who had been arrested and placed in the Nari Niketan and that the women had been minors at the time of their arrest. Moreover, the foreigners in question were women who were victims of cross-border human trafficking. In 2015, a Memorandum of Understanding was signed between India and Bangladesh on bilateral cooperation on matters concerning the cross-border trafficking of women and children between India and Bangladesh. The MoU sets out the process for repatriation of victims of trafficking, and the language used suggests that trafficked women and children are not to be treated as illegal migrants, but as victims, and repatriated accordingly. The court fails to account for the fact that victims of trafficking are accorded treatment distinct from other categories of foreigners. The fact that the court reached its conclusion despite these inconsistencies shows that the women and their predicament were completely sidelined, and were rather used by the court to make a policy decision about detention centres, in a case instead concerning repatriation of victims of human trafficking.. 

The court’s concern here for human rights violation can be appreciated, especially in the context of the horrible conditions in the Assam Detention Camps. While the Central Government’s Model Detention Centre/Holding Centres/Camp Manual, 2019 lay down some standards for humane treatment of detainees, it has been criticised for being far too ambiguous, putting into question the court’s insistence on establishing these Detention Centres.

Resources:

1. Neel Madhav How a Trafficked Woman’s Petition Is Being Used to Push for Detention of ‘Illegal Migrants’, The Wire, 3 September 2021.  
2. Where hope fades and time stands still: Assam’s Detention Camps, Citizens for Justice and Peace, 13 November 2018.
3. Vijaita Singh, Explained: Indian Home Ministry’s guidelines on migrant camps, The Hindu, 4 August 2019.
4. Ruhi Tewari, Modi govt sets norms for ‘model’ detention camps to ensure dignity of ‘illegal foreigners’, The Print
5. Deborah Grey, Ambiguous guidelines for ‘model’ detention camps raise questions, CJP, 28 November 2019.
6. Ministry of Home Affairs, Government of India, Conditions of Foreign Prisoners, 2 July 2019.
7. Ministry of Home Affairs, Government of India, Detention Centres in the Country, 24 July 2019.
8. Sparsh Upadhyay, Deportation Of Illegal Migrants Is Of Paramount Importance, In National Interest: Patna High Court Directs Govt To Sensitize People Of Bihar, LiveLaw, 28 August 2021.

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 Farhan Zia.

Suresh Raj v. State, Criminal O.P. No. 5875/2021

Read the judgement here.

Date of decision: 27.09.2021

Court: High Court of Madras

Judge: Justice M. Dhandapani

Summary: The High Court of Madras rejected the bail petitions of several foreigners who overstayed in or illegally entered India. It also issued several directions to the Ministry of Home Affairs and other authorities to curb and strictly regulate the presence of illegally staying foreign nationals in the country. 

Facts: The Court was hearing a batch of petitions filed by persons of different nationalities such as Srilankan, Nigerian, Chinese, Iranian and Bangladeshi, who had been either overstaying their visa period or had entered the country illegally. They had been arrested for committing various petty offences and subsequently filed bail/anticipatory bail applications before the Court. One of the Petitioners challenged the conditional bail granted by the lower court. The Petitioner argued that the condition to stay at the Trichy Special Refugees Camp was onerous.

Looking into the case of the Petitioners, the Court observed that such cases of illegally staying foreigners are not in isolation and sought data from the authorities on the entry, exit and status of all foreigners staying in and around Coimbatore and Tirupur Districts. The district authorities and DGP submitted status reports accordingly. Further, the FRRO was impleaded by the Court to obtain information that was unavailable with the district authorities. A comprehensive memo was filed by the Centre on behalf of the FRRO detailing the total number of foreign nationals who were overstaying their visa period. Given that the same is illegal, the Court directed the Central Government to file a report as to the mechanism available for identifying the foreign nationals, who are overstaying their visa period and the mechanism that has been devised/available to deport the said foreign nationals back to their country.

Holding: The Court undertook a review of the existing laws and guidelines detailing the procedure issued by the Central government for identification, monitoring and timely deportation of illegally staying and arrested foreign nationals. There are different guidelines for Pakistani and Bangladeshi nationals, which involves communication from their respective countries’ consular office or High Commission and confirmation of nationality in all cases. In case of other arrested foreign nationals, they can be deported by the State authorities/FRRO after completion of their sentence and the procedure for the same has to be initiated 3 months prior to their release. Looking into the implementation of these guidelines, the Court observed that “the security of our motherland is being jeopardized due to the lethargic act of the Governmental machinery in not adhering to the guidelines issued by the Ministry of Home Affairs pertaining to deportation/repatriation of the foreign nationals, who stay put in the country without any valid permission/visa.” (paragraph 23). Thus, the Court considered such foreign nationals who illegally stay in India or who find illegal ways to extend their stay as a serious threat to India’s economic stability and security. Referring to the communications and data presented by different authorities, the Court observed that the exhaustive guidelines formed by the MHA for identification and deportation of illegal foreigners are not being followed, and the number of such foreigners has been increasing despite the presence of the guidelines. Consequently, the Court issued directions in this regard to curb the “menace” of illegal immigrants and foreign nationals illegally staying in India for long durations.

It directed inter alia (i) the MHA to frame appropriate laws within 3 months with regards to illegal immigrants who repeatedly commit petty offences in order to continue living in the country, (ii) the state government to set up detentions centres to hold illegal migrants when they are identified by the State law enforcement agency, (iii) the police authorities to establish a separate wing to monitor movement of all foreign nationals, record the entry and exit of all foreign nationals at various levels and spot, identify and deport overstaying foreign nationals, (iv) in case of foreigners who have committed serious offences, take necessary action to ascertain the nationality and complete the deportation formalities of foreign nationals as per MHA guidelines prior to their release so that they could be deported immediately without even moving them to detention centres, (v) the FRRO/ICP to communicate fortnightly, the entry of any foreign national within the State, along with details regarding their visa, passport and nationality and (vi) in case of foreign nationals/illegal immigrants who are serving prison sentence, the concerned authorities to take necessary steps for their deportation three months for prior to their release as per MHA guidelines. The Court adjourned the cases to 4^th January 2022 for the authorities to report compliance.

Further, the Court rejected the bail petitions of all the Petitioners on the ground “of the very many grave nature of the allegations against the petitioners and also their status with regard to their stay within the Indian territory without valid permission being put in issue” (paragraph 31). In other words, the Court rejected the bail of the Petitioners on the ground that such foreign nationals posed a risk to the security of the country. With regards to the Petitioner who had challenged the conditional bail ordering him to stay at the Trichy Refugees Camp, the Court refused to interfere in the matter on the basis that MHA guidelines allow authorities to impose such conditions on foreign nationals to restrict and monitor their movement. 

Significance: The order joins a series of others in which directions have been issued on the deportation and detention of the accused or convicted or the overstaying and illegally entered foreign nationals (here, here and here). The directions issued by the Court in this case highlight various concerns regarding the procedure of deportation of foreigners in India. The Court reprimanded the state authorities for not ensuring timely deportation of foreigners and directed the same to be followed. The Court also suggested mandatory detention of foreigners before their deportation and directed authorities to set up more detention centres in this regard. However, there exists no centralised time-bound procedure assisting the states in ensuring that foreigners are timely repatriated. In the absence of proper regulations governing the conditions at detention centres and detention limits, the detainees could be left exposed to several human rights violations and exceedingly long detentions, which can take a form of “coercive confinement” and lack Constitutional protections. Further, the Court’s decision to not interfere with one of the Petitioner’s challenge to the bail condition to stay at the Trichy Refugees Camp shows how extremely wide and unrestrictive powers have been conferred on the executive under the Foreigners Act, 1946 to control and regulate the movement, stay and expulsion of foreigners in India.

The Petitioners were only accused of petty offences like preparing fake Aadhar cards, which the Court referred to as “grave allegations” and referred to such foreign nationals as “unscrupulous elements”. The Court’s observations are underlined with a sense of paranoia that perceives foreigners as security threats and potential criminals which is often used to justify harsher and punitive standards of legal frameworks to deal with foreigners. The Court presumed that all the Petitioners were security threats for the sole reason that they were foreigners, without looking into the merits of the bail applications or the conditions of the Petitioners. Increased patterns of crimmigration are being observed in judicial decisions as courts across India regularly deny bail and impose harsh fines on persons identified as illegal migrants. 

Table of Authorities:

1. Model Detention Centre, Suo Motu Writ Petition No. 1 of 2019
2. Prof. Bhim Singh v. Union of India & Ors., 2015 (13) SCC 605
3. Babul Khan v. State of Karnataka, CRL.P. No. 6578/2019
4. Bawalkhan Zelanikhan vs B.C. Shah

Resources:

1. Aaratrika Bhaumik, ‘Unscrupulous Elements: Madras HC Directs MHA To Frame Laws Within 3 Months’, Live Law, 27 September, 2021 
2. Palak Chaudhari and Madhurima Dhanuka, ‘Strangers to Justice,’ Commonwealth Human Rights Initiative, 2019
3. Arijit Sen and Leah Varghese, Weaponizing Citizenship in India, Border Criminologies Blog, 19 February 2020
4. Sujata Ramchandran, The Contours of Crimmigration Control in India, Global Detention Project, 2019 
5. Darshana Mitra, From Citizen to Criminal: Citizenship Determination in India and the Limits of Due Process, The Leaflet, 27 January 2021
6. Aman and Roshni Shanker, Identity in Exile, The Hindu, 28 May 2018
7. Abantee Dutta, Indefinitely Incarcerated: Assam and Its Non-Citizens, Studio Nilima, January 2020

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 Dewangi Sharma.

Asor Uddin v. Union of India, WP(C)/6544/2019

Read the judgment here.

Date of decision: 09.09.2021

Court: Gauhati High Court

Justices: Justice N. Kotiswar Singh and Justice Manish Choudhary

Summary: The Gauhati High Court set aside an ex-parte order by the Foreigners’ Tribunal which declared the petitioner a “foreigner” due to his repeated non-appearance before the tribunal. The court reasoned that there were sufficient reasons which made the petitioner unable to present himself before the tribunal. 

Facts: The petitioner was declared a foreigner by the Foreigner’s Tribunal under Section 2(a) of the Foreigners’ Act, 1946, via an ex-parte order. The petitioner was a poor person and had to travel to Kerala for livelihood. Due to this, he had difficulty readily gathering documents containing his father and grandfather’s names, communicating with his counsel, appearing before the tribunal and filing a written statement. 

Due to his repeated non-appearance and non-filing of written statement, the tribunal passed an ex-parte order, declaring him a foreigner who had entered India from Bangladesh after 25.03.1971. The petitioner approached the Gauhati High Court to set aside the ex-parte order on the grounds mentioned above. The counsel for the Foreigners’ Tribunal argued that in the absence of the procedee, the law allows passing an ex-parte order. Since the petitioner had failed to file a written statement despite several dates given by the tribunal, the order was valid and legal. 

Holding: The court set aside the ex-parte order and directed the petitioner to appear before the Foreigners’ Tribunal for fresh proceedings. It was reasoned that “citizenship, being an important right of a person, ordinarily, should be decided on the basis of merit by considering the material evidences that may be adduced by the person concerned and not by way of default as happened in the present case.” [Para 7] 

The court deemed the reasons for the petitioner’s non-appearance sufficient to be considered by the Tribunal on merits. The court recused itself from deciding on the question of whether the petitioner is a foreigner or not, and instead remanded it to the Foreigners’ Tribunal for reconsideration. The petitioner was also directed to be released on a bail bond of Rs. 5000/- and to submit costs worth Rs. 5000/- to the tribunal. 

Significance: The High Court setting aside the ex-parte order is appreciable, considering the history of the large number of ex-parte orders being pronounced by the Foreigners’ Tribunal. Such orders are common since in many cases, procedees do not receive notice, or discontinue attending the proceedings due to poverty and/or the complexity of the proceedings. In a previous case, a similar ex-parte order was passed by the tribunal where the proceedee’s child appeared before the tribunal without her knowledge, and then proceeded to remain absent for subsequent hearings. 

At the same time, however, the judgment problematizes the exact situations in which cases can be remanded back to the Foreigners’ Tribunal by the High Court. Unlike the above-mentioned case, the court has not found any fault by the tribunal in serving notice or hearing a representative without a thorough checking. The reasoning relied upon by the High Court was that the case is a matter of citizenship, which is the case with all the matters heard by the Foreigners’ Tribunal, and that the petitioners’ reasons for non-appearance seemed sufficient to the court. It remains unclear what is the exact parameter that a court can deem reasons “sufficient” to set aside such an ex-parte order and remand the case back to the tribunal. 

Resources

1. Abhishek Saha, Explained: How do Foreigners’ Tribunals work?, Indian Express, 9 July 2019.
2. Gau HC | [Assam NRC] Citizenship is one of the most important rights of a person which shall not be taken away by an ex-parte order; HC remands the matter to the Tribunal for reconsideration, The SCC Online Blog, 22 April 2021.
3. Shrutika Pandey, Citizenship Is An Essential Right: Gauhati High Court Sets Aside Ex-Parte Order Declaring Man As Foreigner, LiveLaw, 13 September 2021.
4. Challenging Ex Parte Orders on the Ground of Improper Service of Notice, Parichay – The Blog, 11 February 2021. 
5. Aman Wadud, Judiciary must re-examine how it has viewed citizenship question in Assam, Indian Express, 24 September 2021. 

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 Farhan Zia.

Kabir Uddin v. Union of India, WP(C)/7901/2019

Read the judgment here

Date: 02.09.2021

Court: The Gauhati High Court

Justices: Justice N. Kotiswar Singh and Justice Soumitra Saikia

Summary: The Petitioner had been declared a foreigner through an ex parte order of the Foreigners’ Tribunal. The Gauhati High Court set aside the Tribunal’s order due to the improper procedure followed and remanded the matter to the Foreigner’s Tribunal for fresh consideration.

Facts: The Petitioner had shifted from his village many years ago in search of work and had not been in the State. When his name did not appear in the National Register for Citizens, he came to know from the NRC Seva Kendra in Doboka (Hojai District) that the Foreigners’ Tribunal had declared him a foreigner. He had not been served any notice and the process server had pasted the notice in a public place in the village where it was seen by the Gaonburah and others, none of whom had knowledge of the Petitioner.

Holding: The Court held that Order 3(5) of the Foreigners (Tribunals) Order, 1964 does not permit simply pasting notices in public places as a method of serving notice. While the procedure was unclear on what must be done when a proceedee was not found in the house or village, the Court held that the server ought to submit a report in accordance with Order 3(5)(f) and the Tribunal ought to take necessary steps in accordance with Order 3(5)(j). It was held that the notice could not be deemed to have been served and the ex parte proceeding could not continue. The Tribunal’s order was set aside and the Petitioner was directed to appear before the Tribunal for a fresh hearing of the matter. However, since the nationality of the Petitioner was still uncertain, the Court directed that he would remain on bail upon furnishing a bail bond for Rs. 5,000 with one local surety of the like amount, following the Court’s previous decision. The Court also noted that the Petitioner’s failure to appear before the Tribunal would result in the High Court order being vacated and the revival of the Tribunal order, with the Petitioner being liable for detention and deportation.

Significance: This decision indicates that in the instance that a proceedee’s whereabouts are unknown and their residence is not traceable, the server must report the same to the Tribunal and the onus falls on the Tribunal to take the further steps necessary and that simply pasting notices in public places would not amount to serving notice to the person. In so far as the bail conditions are concerned, the requirement for a local surety within the jurisdiction of the Tribunal in question seems especially problematic in such situations where no one in the village knew the Petitioner and vice versa. Moreover, when the Court speaks about the possibility of the Petitioner’s non-appearance and directs that the High Court order will stand vacated, it is not clear whether the holding regarding pasting of notices in public areas will also stand vacated or not.

Resources:

1. Parichay Team, Challenging Ex Parte Orders – Special Circumstances, Parichay Blog, 2 November 2020.
2. Aman Wadud, Judiciary must re-examine how it has viewed citizenship question in Assam, Indian Express, 23 September 2021.

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 Aayushmaan Thakur.