Foreigners Tribunals orders can seal fate of citizenship, must be given after analysing evidence: Gauhati High Court

The Gauhati High Court on Thursday offered a family another opportunity to prove their citizenship before a Foreigners Tribunal that declared them foreigners without hearing them (Rajendra Das and ors v. Union of India and ors)..A Bench of Justices N Kotiswar Singh and Malastri Nandi set aside an ex parte order passed by the Tribunal in January 2018 and upheld in April 2018. The Court asked the Tribunal to hear the matter afresh and directed the petitioners to appear before the concerned Tribunal by December 24 this year, file written statements, and produce evidence to support their Indian citizenship claim..While doing so, the Bench highlighted the importance of citizenship. The order stated,"It is through citizenship that a person can enjoy and enforce fundamental rights and other legal rights conferred by the Constitution and other statutes, without which a person cannot lead a meaningful life with dignity. A person stripped of citizenship would 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. Therefore, any such proceeding which has the potential of depriving citizenship ought to be accordingly, examined from that perspective also.".The Tribunal ruled on appeal that no sufficient cause was shown by the petitioner for setting aside their ex parte order. It relied on the Gauhati High Court decision in Rukia Begum v. Union of India & Ors, which held that applications to set aside an ex parte opinion should not be routinely entertained.On moving the High Court, counsel for the petitioners pointed out personal documents to show that they were Indian citizens residing in Assam since before 1971. The Court observed that the family has a legitimate claim of Indian citizenship if the documents could be authenticated.It was further argued that the family had missed the first Tribunal hearing on account of illness of the father, and that the adverse orders had a cascading effect on the citizenship claims of his wife and minor children..Pointing to its Full Court decision in State of Assam & Ors v. Moslem Mondal & Ors, the Bench emphasised that citizenship has to be zealously guarded. It noted that in regular court proceedings, the rights of a citizen remain despite adverse findings, but not in case of quasi-judicial bodies like the Foreigners Tribunals. It stated that orders passed by such tribunals "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." The Court opined that the Tribunal's order should have been passed after analysing evidence produced by the petitioners, and not by way of default as in the present case. "...considering the nature of the case, we are of the view that the petitioners may be offered another opportunity to appear before the learned Tribunal to prove that they are Indians and not foreigners," the order stated..Given the doubts over their citizenship in the interim, the Court granted the family bail for the entire course of the proceedings to follow, on bonds of ₹5,000 each with a surety of like amount. It ordered that the petitioners cannot leave the district without the police's permission.The Bench appreciated the services of Advocate Swati Bidhan Baruah, who appeared as amicus curiae. Baruah, a member judge of a Lok Adalat in Guwahati, is Assam's first transgender judge..[Read Judgment]