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Wednesday, January 19, 2022

Gauhati HC sets aside FT order which declared Cachar family as ‘foreigners’

The court has now asked the petitioners to reappear before the same tribunal by December 24. 

Written by Tora Agarwala | Aizawl |
Updated: November 30, 2021 8:28:12 am
Gauhati HCIn its judgment, the court said that while it was “conscious of the fact that ex-parte orders cannot be interfered in a routine manner”, the present case pertained to the issue of citizenship, which is a very important right of a person.

The Gauhati High Court last week set aside an ex-parte order by a Foreigners’ Tribunal (FT) declaring a Cachar district resident and his family members as “foreigners” and said that the petitioners should be given another opportunity to prove they are Indians.

In 2018, a tribunal in Cachar declared Rajendra Das and four of his family members as “foreigners” after they failed to appear before it following summons the previous year.

Hearing a writ petition, a High Court Bench of Justices N Kotiswar Singh and Malasri Nandi said that the petitioners should be offered another opportunity to “prove that they are Indians and not foreigners”. The judges said that if the petitioners were able to prove the authenticity of the documents presented before the court, they “may have a legitimate claim that they are Indians and not foreigners”. The petitioner had submitted to the court voters’ lists of 1965 and 1970, in which the names of Das’ parents were mentioned, and a marriage certificate of Das and his wife issued by the Mahadevpur gaon panchayat in Cachar.

The HC asked the petitioners to reappear before the same tribunal on or before December 24.

Das, his wife Renubala and three minor children were declared foreigners by an ex-parte order (in the absence of these persons) in April 2018 by the FT-4th of Cachar. At the time, the tribunal said that Das did not appear for the proceedings nor did he file a written statement after seeking time. Das’ counsel previously said he could not attend the hearing because of ill health.

In its judgment on November 24, the High Court said that it was “conscious of the fact that ex-parte orders cannot be interfered in a routine manner” but the case pertained to a very important right of a person: citizenship.

It said that despite an FT being “merely quasi-judicial in nature”, an opinion that a person is a foreigner “almost seals the fate of the proceedee as far as the issue of citizenship is concerned”. For this reason, Foreigners’ Tribunals should pass an opinion only after “analysing the evidence” and “not by way of default”, as it had in Das’ case, the judges said.

Last week’s order emphasised on the importance of citizenship in today’s world and said: “It is through citizenship that a person can enjoy and enforce fundamental rights and other legal rights conferred by the Constitution and other statutes, without which a person cannot lead a meaningful life with dignity… A person stripped of citizenship would be rendered a stateless person… ”

The verdict was welcomed by activists. Human rights lawyer Aman Wadud said the verdict was “exactly how a constitutional court should protect the most important right of a citizen”.

“Assam is staring at a major statelessness crisis, I am glad that the High Court has acknowledged the risk of statelessness of the petitioners in the case,” he said, adding that he hoped that FTs across Assam would follow the observations of the court.

Wadud said the order was significant because many people in Assam were declared “foreigners” by ex-parte because of non-delivery of notices or they fail to appear before the tribunal due to ill health and financial problems. “This is a major obstacle in getting access to justice,” he said.

In 2019, Minister of State for Home G K Reddy told Parliament that between 1985 and February 28, 2019, FTs in Assam have declared 63,959 persons foreigners in ex-parte proceedings.

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