Citizenship Should Ordinarily be Decided on Merit Rather Than by Default: Gauhati HC

The Gauhati High Court set aside an ex-parte order passed by a Foreigners' Tribunal in Silchar, Assam, which had declared the petitioner to be a foreigner. The court observed that citizenship being a very important right of a person should ordinarily be decided on merit rather than by way of default.

The petitioner, Sefali Rani Das challenged the ex-parte order made against her declaring her a foreigner. The bench of Justices N Kotiswar Singh and Soumitra Saikia decided to remand the case back to Foreigners' Tribunal 6th, Silchar for reconsideration. 

Brief background of the case

A reference was made against her in Case No.404/2015. After being duly served the notice, the petitioner appeared before the Foreigners' Tribunal, she even filed her written statement and filed some relevant documents.

However, unfortunately the petitioner did not get proper legal advice from her engaged counsel, who not only failed to give proper legal advice but also failed to appear before the Foreigners' Tribunal. The petitioner, also not being well versed with the legal provisions and also because of the communication gap between the petitioner and her engaged counsel, remained absent before the learned Tribunal on several occasions resulting in the Tribunal passing the ex-parte order declaring her to be a foreigner.

The petitioner submitted that there was no willful negligence or disregard on her part and thus sought permission from the court to approach the Tribunal again to prove her case as an Indian citizen. The counsel appearing for the state did not object to this prayer.

The court observed thus, “Citizenship being a very important right of a person should ordinarily be decided on merit rather than by way of default as has happened in the present case and as such.” The court thus allowed the petitioner to appear before the learned Tribunal again to prove her case that she is a citizen of this country and not a foreigner. The court accordingly set aside the order passed by Foreigners' Tribunal 6th, Silchar, Assam passed on September 19, 2017 and directed the petitioner to appear before the Tribunal within 1 month.

On July 15, the same bench had set aside another Foreigners' Tribunal order and remanded the case back for reconsideration as it deemed that the Tribunal had acted beyond its jurisdiction in terms of the time frame for which the reference was made against the family. The court held that the Tribunal went beyond the reference and rendered its opinion that the petitioner and her family members are illegal immigrants who entered India after March 25, 1971 while the reference stated that the family entered Assam after January 1, 1966 and before March 25, 1971.

The Ex parte menace

The Foreigners Tribunals in Assam have passed ex-parte orders on several occasions. SabrangIndia’s sister organisation, Citizens for Justice and Peace (CJP) has helped secure release of many persons who were thrown into detention camps after an ex parte order was passed against them declaring them foreigners. In April, CJP's Assam team secured bail of Chenbhanu Begum, a daily wage labourer after she was declared foreigner in an ex-parte order. In early June, the team managed to secure release of a Dalit woman, Shanti Basfore, who was detained in Kokrajhar detention camp after being declared foreigner in a ex parte order. Notably, a 101-year old man was detained after he was declared foreigner in an ex parte order and he spent 3 months in a detention camp before he was finally released. Chandrahar Das, a registered refugee from Bangladesh, was declared ‘foreigner’ as the Dementia and Parkinson’s Disease afflicted man, arrested at the age of 101, could not recall when he crossed into the country. He died at the age of 104 years, still asserting his Indianness but he died a ‘declared foreigner’.

All these petitions that come before the High Court have a human side to them and a different story of hardship to narrate. It is these human stories that make us realise the human cost of the exercise in Assam and how these people struggle to come before courts bearing legal costs, to prove that they are Indians.

The complete order may be read here: