Assam: Order on BSF man also declared 27 others as foreigners

He learnt about the order when he came home for Eid-ul-Adha on August 12. Rehman’s lawyer, Nakibur Zaman, said the National Register of Citizens (NRC) local office informed him.

A member of a foreigners’ tribunal in Jorhat in upper Assam declared 28 people, including a serving Border Security Force (BSF) assistant sub-inspector posted in Punjab, as foreigners in a single ex-parte order.

The Supreme Court, which is monitoring the NRC in Assam, had stated that any resident of Assam declared a foreigner, and his or her descendants, should be removed from the NRC draft. (HT FILE)

An ex-parte order is one delivered without all the parties to a dispute being present. The order, issued in December 2018, came to public notice only after the BSF officer, Mazibur Rehman, claimed on Friday that the tribunal had declared him a foreigner without hearing his side of the story.

He learnt about the order when he came home for Eid-ul-Adha on August 12. Rehman’s lawyer, Nakibur Zaman, said the National Register of Citizens (NRC) local office informed him.

The Supreme Court, which is monitoring the NRC in Assam, had stated that any resident of Assam declared a foreigner, and his or her descendants, should be removed from the NRC draft. Those excluded from the NRC will have to appeal to foreigners’ tribunals within 120 days against the exclusion.

On December 21, 2018, NN Jha, member of the foreigners’ tribunal, in his order, said: “…despite having reasonable opportunities being granted, the opposite party (ies) of the aforesaid cases have failed to present and file their respective W/S (written statements) within the time as prescribed them to do so. As such having no alternative, I therefore constrained to take up these cases for passing the same order ex parte.”

Jha said that according to the Foreigners’ Act, the burden to prove citizenship was on the suspect and not the state, therefore allegations that 28 were foreigners who had entered India (Assam) after March 25, 1971, the cut-off date, stood unchallenged and unrebutted.

Lawyer Zaman termed the order erroneous, asking how a member of the tribunal could give an opinion on 28 cases when every case had its own merits. He said an appeal against Jha’s order would be filed next week in the Gauhati high court.

BP Katakey, a retired judge of Gauhati high court, said there may not be any illegality in the way the tribunal member had clubbed cases he deemed similar but questions could be raised on the way notices were served to the affected parties.

“After going through the tribunal order, one can safely see the serving of the notice on which the ex parte case hinges was not properly done as per the high court judgment, at least in Rehman’s case,” Katakey said. “The tribunal member’s opinion seems to be contrary to the report submitted by the process servers (the official who serves notice).”

Dhiren Hazarika, deputy commissioner of Golaghat, said, “I am aware that (Rehman’s) family is an indigenous Muslim. I don’t know how it happened as it is an old case.”

Mukul Saikia, superintendent of police at the headquarters of the Border Organisation of the Assam Police, said Rehman would not be sent to a detention centre till his case goes to the high court.

In his BSF enrolment record of 1988, Rehman had declared himself a citizen of India, produced a copy of his father’s name in the electoral rolls and his high school-leaving certificate from the Board of Secondary Education, Assam. Rehman, his wife Jargine Begum, and 26 others from villages in Golaghat district, were declared foreigners.

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