Gauhati HC on citizenship (PTI)
Gauhati HC on citizenship (PTI)

Citizenship an essential right: Gauhati HC in plea against foreign tribunal

The high court’s observation came while hearing a petition filed by Asor Uddin, a resident of Moirabari, challenging the decision of an FT order in April 2011 that declared him as foreigner
By Utpal Parashar
PUBLISHED ON SEP 13, 2021 11:57 PM IST

Guwahati: Citizenship is an essential right and should be decided on the basis of merit by considering the material evidence cited by the person concerned, and not by way of default, the Gauhati high court observed as it set aside an ex-parte order of a foreigners’ tribunal (FT) declaring a man in Morigaon district as foreigner.

The high court’s observation came while hearing a petition filed by Asor Uddin, a resident of Moirabari, challenging the decision of an FT order in April 2011 that declared him as foreigner under Section 2(a) of Foreigners Act, 1946, because he failed to submit a written statement by adducing evidence to prove his documents.

“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 be way of default as happened in the present case,” a division bench of justices Manish Choudhury and N Kotiswar Singh ruled in an order passed on September 9.

In his plea filed through advocate M.A Sheikh, the petitioner said that he is very poor and couldn’t readily collect documents bearing names of his grandfather, father as well as his own for filing written statements before the FT. Hence, he failed to appear before it.

He added that in order to earn a livelihood, he had to leave Assam and work in Kerala.

The petitioner also said that he couldn’t communicate with his engaged counsel, who also failed to inform him about the subsequent dates fixed by the FT for his appearance.

He pointed out that as he had appeared before the FT through his counsel on February 12, 2010, he had no intention of evading proceedings.

In his plea, Asor Uddin contended that the FT, in its case, listed him as a ‘D-voter’ (doubtful voter) without proper examination of documents.

However, special counsel for FT, A. Verma, said the plea should not be entertained as the petitioner himself is to be blamed for his non-appearance. She added that in the absence of the person concerned, the FT had no option but to carry forward proceedings ex-parte and declare him a foreigner as per law.

Taking note of the voter lists of 1965, 1970 and 1971, which included names of the petitioner’s grandparents, parents and also his own, submitted in the court, the bench said: “There were sufficient reasons for the petitioner for not being able to appear before the FT to enable the tribunal to consider his claim on merit and accordingly, we are inclined to afford another opportunity to the petitioner to appear before the FT to prove he is an Indian, not a foreigner.”

The court, however, directed Asor Uddin to appear before the Morigaon FT on or before November 8 this year for fresh proceedings. It added that since the petitioner’s citizenship “has come under cloud”, he will remain on bail during proceedings and appear before the superintendent of police within 15 days. He will also have to submit a bail bond of 5,000 and a surety of the same amount.

If Asor Uddin fails to pay the cost or appear before the FT on or before November 8, the FT order set aside by HC will be revived and “law will take its own course”, the bench observed.

The court directed the police to collect fingerprints and biometrics of the petitioner, and asked the petitioner not to leave the jurisdiction of Morigaon district without permission from the superintendent of police.

As per the Assam Accord of 1985, anyone who has been staying in the state prior to March 24, 1971, or can establish lineage to people residing on or before that date is considered as an Indian citizen — a requirement also accepted for inclusion in the National Register of Citizens (NRC) updated in 2019.

As many as 1.9 million people who failed to prove their or their ancestor’s residency in Assam on that date and those who were declared foreigners by foreigners’ tribunals (as well their relatives) were excluded from the NRC, potentially rendering them “stateless”.

The external affairs ministry later said the process of deciding the fate of the 1.9 million people is expected to be “fairly long” and they have the right to appeal to FTs and higher courts.

Assam has 100 foreigners’ tribunals, a quasi-judicial body, which adjudicates on citizenship of those people who have been marked as suspected foreigners by the border police or listed as doubtful voters (D-voters) in electoral rolls.

“There have been cases where FTs have passed ex-parte orders declaring someone as foreigner. If some one doesn’t appear at hearings or provide evidence to prove citizenship, the FTs have no option but to declare a person as foreigner. But before making such an observation, it should be seen whether the process of issuing summons and other details were followed properly,” senior advocate Nekibur Zaman said.

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