Read the judgement here.
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:
- Whether the notice had been properly served to the proceedee;
- 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
- Parichay Team, Case Note: Md. Misher Ali v. Union of India, Parichay Blog, May 3, 2021
- Sanchita Kadam, The Highs & Lows of Foreigners Tribunals that affects Justice Delivery: Assam, Sabrang, November 5, 2019
- Prashant Bhushan, Conduct of Foreigner’s Tribunal is Assam is questionable, The Indian Express, September 20, 2019
- The Wire Staff, Assam: Since 1985, Ex-Parte Tribunal Orders Have Declared Almost 64,000 People as Foreigners, The Wire, July 2, 2019
- Designed to Exclude, Amnesty International, 2019
- 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.