Dulu Chowdhury v Union of India, WP(C)/8146/2019
Read the order here.
Date of the decision: 16.03.2022
Court: Gauhati High Court
Judges: Justice N. Kotiswar Singh (authoring) and Justice Nani Tagia
Summary: The Gauhati High Court held that the 60 days time-limit for the conclusion of the Foreigners’ Tribunals proceedings, as prescribed by Clause 3(14) of the Foreigners (Tribunal) Order, 1964, needs to be construed liberally in the interest of justice, in cases where the delay is reasonable, and not deliberate.
Facts: The Petitioner was referred to the Foreigners’ Tribunal (FT) on the ground that he was a ‘foreigner’ who entered India after 25.03.1971. The FT declared him a foreigner on the basis of the materials available on record, which in this case consisted only of the Petitioner’s written statement.
The Petitioner submitted that he was unable to adduce evidence within the limited time granted, on the ground that he wanted to file his School Transfer Certificate, a crucial document which could prove his linkage with his father. The original document had been misplaced by his daughter. But, the Petitioner asserted that he could prove the same via secondary evidence. However, the FT refused to grant additional time to the Petitioner on the ground that the 1964 Order prescribed a limit of 60 days for the conclusion of the proceedings. Subsequently, the Petitioner challenged this order, praying for another opportunity to prove his citizenship before the FT.
Holding: The Gauhati High Court held that a liberal view should be adopted regarding the timelines for the conclusion of the proceedings.
The Petitioner presented before the High Court those documents, which it could not present before the FT. These consisted of a copy of the registration certificate dated 30.10.1956 issued in favour of his father, a copy of School Transfer Certificate, a voters list of 1970 mentioning his father’s name, and multiple voters lists (1997, 2005 and 2010) with his name. The Court held that the documents produced by the Petitioner before the High Court if proved, could legitimise the Petitioner’s claim of citizenship. Thus, if the FT had given the Petitioner enough time to adduce this document, it could have changed the entire outcome of the proceeding with the possibility of the Petitioner retaining his citizenship. Therefore, the Court held that even though the order of the Tribunal technically withstood the test of legality, a liberal view ought to have been adopted of the timeline for the conclusion of proceedings, since the proceedings herein dealt with the important, potentially life-altering, issue of citizenship.
It explained its reasoning in a paragraph grounded in the importance of citizenship. It held: “Citizenship is one of the most important rights of a person in today’s world. It is the key to the enjoyment of the rights guaranteed by the law of the land……A person stripped of citizenship could be rendered a stateless person if any other country refuses to accept him or her as its citizen. Such is the overarching significance and importance of citizenship to a person.…Though a proceeding under the Foreigners’ Tribunal is merely quasi-judicial in nature, an adverse opinion by the Tribunal that the proceedee is a foreigner almost seals the fate of the proceedee as far as the issue of citizenship is concerned, as the authorities are expected to declare such a person a foreigner in terms of the opinion of the Tribunal and he would be liable to be detained and deported. Thus, ordinarily, such an opinion of the Tribunal, in our view, ought to be given after analyzing all the relevant pieces of evidence that may be produced by the proceedee and not by way of default as has been done in the present case.” (paragraph 10). In other words, the High Court held that the orders should not be passed by default, without fully hearing the proceedee’s case. This means that the FTs must be mindful of the severity of the consequences and only pass their orders after examining all the evidence that the proceedee could adduce. This is because even though the FT proceedings are unlike normal legal proceedings, their potential consequences are severe, i.e. to render a person stateless.
Accordingly, the Court was satisfied that the ground pleaded by the Petitioner was not unreasonable, and that there was no deliberate avoidance of the proceedings on his part. The Court stressed that citizenship proceedings should be decided after giving the proceedee an opportunity to be heard by the Court and, thus, relaxed the 60 days limit. The Petitioner was consequently granted another opportunity to prove his case before the FT in the interest of justice.
Significance: This judgement is significant since it prescribes a liberal approach to the stringent timelines prescribed by the Foreigners (Tribunal) Order, 1964, when it comes to determining an issue as vital as citizenship. The Order provides for an austere time bound process, with, inter alia, a limit of 10 days being given to proceedees to produce evidence, and 60 days to FTs to conclude proceedings. The timeline does not take into account the rigours of proving documentary evidence. FTs do not accept photocopies, but require certified copies of documents which involves a lengthy process of verification and certification of voters lists and land documents before the Election Office and Revenue Office. Moreover, private documents such as the Marriage Certificate are required to be physically proved by the issuing authorities (like Gaonburas), for which the proceedees themselves have to specially request the presence of such authorities. The completion of such bureaucratic processes is nearly impossible to achieve in the limited time given by the FTs. As a result, the proceedees are forced to present their case with little to no evidence, resulting in the FTs passing orders based on such incomplete evidence.
This may lead to a grave consequence. According to Clause 3(13) of the Foreigners’ Tribunal Order, 1964, the proceedee is liable to be detained at the detention centre if they are unable to produce any proof in support of their claim of citizenship, and are also not able to arrange for bail. Therefore, the delayed production of evidence can thus cost the proceedee their liberty.
The Court underlined the importance of giving an opportunity to the proceedee to be heard. FTs have a long history of passing ex-parte orders, and in light of such history, this decision of the Court is significant. The judgement takes into consideration the difficulties faced by the proceedees in making a representation, and thus reaffirms the importance of giving sufficient opportunity to the procedee to present their case.
The Court has previously adopted a similarly liberal outlook towards the time prescribed, but this is the first instance where the necessity of such a liberal outlook has been discussed in the context of the importance of citizenship. As was emphasised by the Court, citizenship is the key to unlock access to many fundamental rights. FT orders, by declaring a proceedee a foreigner, have the potential to forever bar a proceedee from exercising crucial rights by rendering them stateless. Thus, the determination of an issue as vital as citizenship should not be made solely on the basis of procedural non-compliance. The judgement could serve as precedent for a more liberal approach towards procedural barriers that have acted as fetters on the ability of the proceedees to prove their citizenship.
Resources:
Designed to Exclude: How India’s Courts are allowing Foreigners’ Tribunals to render people stateless in Assam, Amnesty International India, 2019.
Foreigners’ Tribunals: Why were they established and how do they operate?, Citizens for Justice & Peace, 15 April 2021.
Parichay Team, Challenging Ex Parte Orders – Special Circumstances, Parichay Blog, 2 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.
Shriansh Jaiswal and Ananya Kumar, India’s Response to Rohingyas, Jurist, July 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 P Ritika Rao.