Assam FT Declared Foreigners Without ‘Reasoned Opinion’: HC

New Delhi: The Gauhati High Court in an order dated September 19, 2019, revealed the reports of an HC ordered inquiry which shows that several of those declared foreigners by the Foreigners’ Tribunals (FTs) were either Indians or there were serious errors in the orders. The FTs are responsible for furnishing opinions on the citizenship of those whose nationality is doubted by the Border Police and the Election Commission.

It was found that in several cases, judgement copies are absent and dual judgements are issued without vacating the earlier order. Two judgements in the same case, without vacating the earlier order in the case file, cannot be considered as order in the eye of law. Such a noting or order cannot be construed to be an order disposing off a reference case by an FT. There has to be an opinion on record carrying the seal and signature of the presiding officer of the tribunal.

Also read: How Assam FTs Declare Indians as Foreigners: ‘No Prior Probe, Non-Application of Judicial Mind’

The matter came to light after a Member In-charge, Foreigners’ Tribunal No. 4, Morigaon, wrote an e-mail to the Principal Secretary to the Government of Assam, Home and Political Department, on April 23, 2018. The letter, with a copy marked to the Registrar (Judl), Gauhati High Court, mentioned that 288 references were shown to be disposed off by the earlier member but detailed opinions signed by the member were not available in the case records.

Soon after learning about the sorry state of affairs, the HC issued a notice on June 15, 2018, directing the Principal Secretary, Home and Political (B) Department, Government of Assam to seize the case records of those 288 references and to place those records before the court along with a detailed report compiled in that regard.

Also read:Assam: ‘Arbitrary Powers’ to FTs While People Are Set to Face Citizenship Test

The Deputy Secretary to the Government of Assam, Home and Political Department, submitted its report on October 3, 2018, stating 50 of the 288 cases were already seized on February 21, 2018. In its order dated September 19, the High Court narrates the details of the inquiry report, which is as follows:

“After making due scrutiny through the Special Cell of the Office of the Addl. D.G.P. (Border), Assam, 13 out of the 50 seized cases—where the proceedees have been declared as Indian—were already recommended by the State Level Screening Committee for filing writ petitions before this Court. Accordingly, the case records of the 13 cases were handed over to the Special Standing Counsel, Gauhati High Court. In so far as the rest 37 cases are concerned, the report indicates that the same were found to be correct in all respects. The report also mentions that out of the remaining 238 case records, the Superintendent of Police (Border), Morigaon had placed 232 case records before the Addl. D.G.P (Border), Assam. On a scrutiny so conducted, it was reported that out of the 232 case records, as many as 175 cases have been found correct in all respects, while in the remaining 57 cases anomalies were detected.”

Also read: Foreigners Tribunals in Assam: Saga of Inherent Gender Bias, Presumption of Non-Citizenship

According to the report, the nature of the anomalies fall under the following categories: (a) Judgment not found on record in 11 cases, (b) Mismatching between judgement copy with order sheet in six cases, (c) there were dual judgements in five cases, (d) No vacating order was found in 32 cases, (e) In two cases, there was proceedee discrepancy, (f) One case was found to be undisposed since proceedee had expired.

It was also discovered that the actual number of cases seized was 282 and not 288, because six cases had been repeated.

SHOCKING DISCREPANCIES

A number of shocking errors have been noted in the order. For instance, in the case of Rabindra Chanda [FT-(D) 125/2015], the proceedee’s name has been recorded as Rabindra Chanda S/O Ridai Chanda in reference, but in the opinion, dated June 18, 2016, his father name is mentioned as Rupchand Biswas. In addition, there is another Rahima Khatun who is not related to the case in any way.

Similarly, take the case of Md. Pachar Ali [FT-(D) 51/2017] wherein the proceedee’s name was recorded as Md. Anuwar Hussain S/O Abdul Rahman in the reference, but in the opinion dated April 6, 2018, another two names are found – Rahima Khatoon and her father’s name, recorded as Rupa Chand Biswas, which is not related to this case at all.

In 11 cases, there is no record of the judgement. The inquiry committee concludes in its remarks, “Judgment not found in record.”

In five cases, the proceedees are declared Indian in note sheet, but in opinion copies, they are declared as foreigners.

In another five cases, two opinion were found in the same case.

In 32 cases investigated, the proceedees were earlier declared foreigner ex-parte, but later they were declared Indian without vacating the earlier order.

In one case, no opinion was passed by the member as the proceedee died, making the offspring doubtful.

The High Court Order

On the basis of these findings, the Gauhati High Court ruled, “…we hold that mere noting in the note-sheet or passing of an order that reference was disposed off without a reasoned opinion/absence of judgment copy/dual judgment/without vacating earlier order in the case file would be no order in the eye of law. Such a noting or order cannot be construed to be an order disposing of a reference case by a Foreigners Tribunal. There has to be an opinion on record which must carry the seal and signature of the Presiding Officer of the Tribunal. In the absence thereof, such a reference will have to be treated as not being disposed of and be considered as a pending reference, which would have to be heard afresh.”

Also read: Assam: Over 63,000 People Declared Foreigners Through Ex-Parte Proceedings, Admits MHA

“Therefore, in all the above 57 references of the Foreigners’ Tribunal No. 4, Morigaon, the ‘orders of disposal’ are non est in the eye of law and liable to be set aside, which is accordingly done. All the above 57 references shall now be heard afresh from the respective stages. The Member of the Tribunal shall list the above references in the notice board of the Tribunal giving fresh dates. Fresh notice may also be issued to the proceedees.”

Expressing disdain, the High Court said, “Before parting with the record, we express our disappointment over the way the Member conducted himself. This was not expected. In the ordinary course this would have called for some action, disciplinary or otherwise. We leave it at that.”

The complete High Court order can be accessed here: