'Foreigners Tribunal Acted Half Heartedly': Gauhati HC Quashes Order Declaring Woman As Foreigner Passed Without Examining Relevant Witness

The Gauhati High Court has recently observed that "citizenship of a person is a valuable right" while quashing an order ofa Foreigners Tribal which declared a woman a foreigner.

The Court observed that the Tribunal appeared to have acted "half heartedly", as it did not take serious steps to ensure the attendance of a crucial witness - the Headmaster who issued the school certificate which was relied on by the petitioner to trace back her lineage before March 24, 1971(the cut-off date for Assam NRC).

"In the case in hand it appears that the Tribunal acted half heartedly while trying to enforce the attendance of the Headmaster of Indira Gandhi L.P. School. We have already mentioned herein before that citizenship of a person is a valuable right and here in this matter the school certificate is the only document to prove the linkage between the petitioner and her father. The petitioner could not prove the school certificate only because of the failure of the Tribunal to enforce the attendance of the Headmaster of Indira Gandhi L.P.School. Therefore, the impugned order suffers from perversity and for this reason alone the impugned order is not sustainable", observed a division bench comprising Justice Manojit Bhuyan and Justice Parthivjyoti Saikia.

The petitioner Nasima Begum was declared as a foreigner of post 1971 stream by the Foreigners Tribunal, Gohpur vide order dated 12.10.2018 which was subject to the challenge of the present petition.

The petitioner was issued a notice by the Tribunal after reference was made by the Superintendent of Police asking her to prove her citizenship.

It was the case of the petitioner that her father's name was Sultan Ansari and she had married to one Alal Halder in the year 1998. According to the petitioner her father's name appeared in the voters lists of 1965 and 1971.

The primary issue in the case was that the petitioner only had "school certificate" as a document showing her linkage with her father.

When the case reached before the Tribunal, summons were issued at various instances to the School Headmaster asking him to appear before the Tribunal. However, to no avail. It was then that the Tribunal finally delivered the order declaring Nasima to be a foreigner without examination of the Headmaster.

At the outset, the bench observed that:

"We have already mentioned herein before that citizenship of a person is a valuable right and here in this matter the school certificate is the only document to prove the linkage between the petitioner and her father."

In view of this, the Court observed that the petitioner was unable to prove her citizenship only because of the non appearance of School Headmaster and therefore, the impugned order of the Tribunal suffered from perversity. The bench also took note of the fact that the Tribunal had not taken into consideration the other two documents presented by the petitioner i.e. Gaonbura certificate and a certificate issued by the Secretary of the Panchayat.

"We are of the opinion that for the ends of justice at least one more opportunity should be afforded to the petitioner to contest the police reference on merits. In this view of the matter, we set aside the order/opinion dated 12.10.2018, with direction to the petitioner to appear before the Foreigners' Tribunal-4th, Tezpur at Gohpur on 19.02.2021. It is stated that the petitioner was taken in to custody on 06.05.2019 and is presently lodged at the Tezpur Central Jail. In this situation, we direct the Superintendent of Police (Border), Biswanath to make necessary arrangement to produce the petitioner before the Foreigners' Tribunal-4th, Tezpur at Gohpur on 19.02.2021. On such production and on application made for bail along with documents, the Tribunal shall take steps to release the petitioner on bail." The Court ordered.

Order Dated: 29.01.2021

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