Md. Misher Ali @ Meser Ali v. Union of India, CA/1058-1059

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Date: 24.03.2021

Court: Supreme Court of India

Judges: Justice D.Y. Chandrachud, Justice M.R. Shah and Justice Sanjay Khanna

Summary: The Appellant had been declared an illegal migrant through an ex parte order of the Foreigners’ Tribunal without having been duly served the notice of the proceedings. The Supreme Court set aside the Tribunal’s order and the Gauhati High Court judgment dismissing the Petitioner’s appeal and ordered the Tribunal to constitute fresh proceedings. 

Facts: A reference was made by the Sivasagar Superintendent of Police (Border) to the Foreigners’ Tribunal claiming that the Appellant was an illegal migrant. The process server served notice at his last known place of residence in Sivasagar. When the proceedee failed to appear before the Tribunal, an ex parte order was filed on the 22nd of March, 2018, declaring him to be a foreigner. Aggrieved by the order, the Petitioner approached the Gauhati High Court under Article 226. The Court dismissed the petition on the grounds that the notice had been properly served and failed to discharge the burden to prove his citizenship. The Appellant then filed an appeal before the Supreme Court and argued that he failed to appear as the notice was not duly served at his permanent place of residence at Dhubri district, even when the authorities had knowledge of the same.

The two issues before the court were: 

  1. Whether the notice had been properly served to the proceedee; 
  2. Whether the Appellant had failed to avail the opportunity under Paragraph 3A of the Foreigners (Tribunals) Order of 1964 which provides the procedee with thirty days to file an appeal to set aside an ex parte order. 

Holding: The Court held that the process server had failed to meet the requirements of paragraph 3(5)(f) of the Foreigners (Tribunals) Order 1964 which deals with a situation where a “proceedee” has changed the place of residence or place of work without intimation to the investigating agency. The Court noted that the Tribunal’s Order and the police authorities had taken note of the fact that the permanent address of the Appellant had shifted from Sivasagar to Dhubri. As the authorities were aware of the appellant’s permanent place of residence and still made no effort to serve the appellant at that address, the Court held that the order was not duly served to the appellant. 

Consequently, the Court noted that the remedy under paragraph 3A would not be attracted in this instance since it requires proceedee to present cause for non-appearance where notice was duly served. The Court set aside both the order of the Tribunal and the judgment of the Gauhati High Court. It also ordered the release of the Appellant who had been in Custody for nearly two years and asked that he appear before the Tribunal for the fresh proceedings. The Tribunal was instructed to “allow the appellant a sufficient opportunity, consistent with the principles of natural justice, to file his response and produce documentary and other material.” (paragraph 13)

Significance: The non-service of notice upon the proceedees leading to ex parte is an important issue of concern with respect to the functioning of the Foreign Tribunals. The judgment is significant as it clarifies that the Tribunals cannot pass ex parte orders where the concerned authorities have failed to make the person aware of and duly serve the notice when their proper address is within their  knowledge.

As the burden to prove their citizenship lies on the accused in the Court/Tribunal, their non-appearance even for lack of understanding of the notice issued or in the absence of any notice has led to their being declared as “foreigner”. In Rahima Khatun v Union of India, the Gauhati High Court observed that any questions about a person’s citizenship should be decided upon after hearing the person concerned instead of passing an ex-parte order. However, as many as 63,959 persons have been declared foreigners through ex parte proceedings in Assam since 2019 highlighting the problematic conduct of the Tribunals as in the present case. 

Any challenge to the tribunal’s orders must lie in the form of a writ petition where the higher courts are only restricted to determining the legality of the tribunal’s order. This leads to the constitution of fresh proceedings in the Tribunal when the court decides against the Tribunal, unnecessarily lengthening and complicating the procedure for the appellants who are usually poor and marginalised. The Appellant had to spend almost two years in detention due to the Tribunal’s illegal order. 

However, the Supreme Court did not impose any bail amount or a local surety on the Appellant which had become a persistent issue in matters where the Court set aside the Tribunal’s orders. (see Kabir Uddin v. Union of India and Samsul Hoque v. Union of India) Though the aim of the court is to do justice and provide relief to the Petitioners in such matters, the imposition of a bail amount or surety is an additional burden on the petitioners who are usually poor and from marginalised communities. 

Table of Authorities

  1. Kabir Uddin v. Union of India 
  2. Samsul Hoque v. Union of India
  3. Rahima Khatun v Union of India


  1. Parichay Team, Case Note: Md. Misher Ali v. Union of India, Parichay Blog, May 3, 2021
  2. Sanchita Kadam, The Highs & Lows of Foreigners Tribunals that affects Justice Delivery: Assam, Sabrang, November 5, 2019
  3. Prashant Bhushan, Conduct of Foreigner’s Tribunal is Assam is questionable, The Indian Express, September 20, 2019
  4. The Wire Staff, Assam: Since 1985, Ex-Parte Tribunal Orders Have Declared Almost 64,000 People as Foreigners, The Wire, July 2, 2019
  5. Designed to Exclude, Amnesty International, 2019
  6. Sagar, How Assam’s Foreigners Tribunals, aided by the high court, function like kangaroo courts and persecute its minorities, The Caravan, November 6, 2019

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, and an earlier version of the note was prepared by Sitamsini Cherukumalli.

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

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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.


  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. 

Smt. Sefali Rani Das v. Union of India, WP(C)/206/2018

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Date of the decision: 20.07.2021

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh and Justice Soumitra Saikia

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 citizenship should be decided on merit, and not by default.  

Facts: The petitioner had appeared before the Foreigners Tribunal 6th, Silchar, after notice was served, filing her written statement along with certain documents. However, she did not get proper legal advice and later failed to appear before the Tribunal on several occasions. As a result, the Tribunal passed an ex parte order against her on 19.9.2017, declaring her a foreigner. Accordingly, the present writ petition was filed, the petitioner pleading that she be permitted to approach the Tribunal again to prove her case as an Indian citizen. 

Holding: The petitioner argued that there was no wilful negligence or disregard on her part about the proceeding as she had duly appeared and filed her written statement. The Gauhati High Court granted the relief, remanding the matter to the Foreigners’ Tribunal for reconsideration. The Court, in its order, stated that “citizenship being a very important right of a person should ordinarily be decided on merit rather than by way of default as has happened in the present case” (paragraph 5).

Significance: The case deals with an ex parte order depriving an individual of their citizenship. It is significant because it reaffirms the importance of citizenship as a right, and that it cannot be taken away without proper consideration of its merits. While the Gauhati HC has also stated in previous orders that citizenship cases should not be determined on an ex parte basis, these orders are decided on a case-to-case basis, and it is unclear whether they indicate a general prohibition on ex parte orders. 

More than 60% of cases are decided ex-parte by Foreigners’ Tribunals. A large number of these orders are because the persons do not receive notices, or stop attending the proceedings midway through. Ex parte orders often affect vulnerable and marginalised persons such as wage labourers, who cannot appear before the Tribunals either due to lack of sound legal advice or because they stand to lose a day’s wage. While Foreigners’ Tribunals have the power to summon and enforce attendance of persons, there currently exists no mechanism to ensure that persons are able to attend hearings, which points to larger structural issues in the functioning of the Tribunals. Although laws like the Legal Services Authorities Act provide free legal aid for marginalised and disadvantaged persons, experiences show that such laws are ineffective in practice, making it difficult for the poor and marginalised to access legal aid.  

Table of Authorities:

Rahima Khatun v. Union of India WP(C)/8284/2019.   


Nupur Thapliyal,Gauhati HC Sets Aside Ex Parte Order Declaring Woman As Foreigner, LiveLaw, 29 July 2021.

Sabrang India, Citizenship Should Ordinarily be Decided on Merit Rather Than by Default: Gauhati HC, Newsclick, 30 July 2021.

Challenging Ex Parte Orders on the Ground of Non-Availability of Legal Aid, Parichay Blog, 9 November 2020.

The Search for Foreigners in Assam – An Analysis of Cases Before a Foreigners’ Tribunal and the High Court, Parichay Blog, 23 June 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.