Foreigners Tribunals Declared Almost 85% Proceedees Indian Citizens: Gauhati High Court Directs State To Probe

The Gauhati High Court has directed the Assam Government to conduct a departmental review and take appropriate measures in cases where Foreigner Tribunals had declared proceedees/applicants as citizens of India or foreigners without any analysis of the materials on record or any proper reasoning for such declaration.

Upon observing such a trend in orders by the foreigner tribunals merely recording material without analysis or failing to assign any reasons for their declarations, a division bench observed:

Such procedure adopted would have to be deprecated. The Tribunals are entrusted upon the jurisdiction to adjudicate a reference made and decide upon the materials produced before it by giving reasons as to whether the materials indicated the person to be a foreigner or a citizen. Any conclusion arrived dehors any decision or adjudication cannot be an acceptable conclusion and it has to be construed that the Tribunals had not discharged the jurisdiction vested upon it under the law.

It was further pointed out by the Court that in many cases, a proceedee had been declared to be a foreigner without stating the reason as to why the Tribunal arrived at such a conclusion and also not deciding the matter as per the materials on record.

It was remarked that if proceedees had been declared to be foreigners without stating any reasoning or analysis of the materials produced, then there would be a possibility that the same procedure being used to declare a proceedee to be a citizen, may have led to many proceedees who may be foreigners or illegal migrants being wrongly declared to be citizens by the Tribunals.

The Court further observed: “But we are afraid to observe that in much many more other orders, the same procedure of describing the materials produced is adopted but without analyzing the implication of the materials or without stating any reason and without arriving at any decision, a conclusion is arrived that in the view of the Tribunal, the proceedee concerned is a citizen. In some of the matters, it is noticed that even there is no proper recording as to what material has been relied upon which would be a basis for the conclusion arrived. Such procedure adopted would have a far more serious consequence.”

Accordingly, the Court directed the Secretary to the Government of Assam, Home Department, to conduct a departmental review of all such references that had been answered by the Tribunals declaring the proceedees to be citizens.

It directed that wherever it was noticed that any such conclusion or declaration of proceedings had been made without any analysis of the materials or without providing for any reason thereof and no decision had been arrived at, the Home Department would be free to take any appropriate measures as may be available under the law.

It was further opined that if any action or measure was taken, then it should strictly comply with the required procedure of law as may be applicable for the purpose and should also comply with the principles of natural justice.

“…as almost 85% of the references have resulted in the proceedee being declared to be citizens, where it is noticed that in many such cases neither any decision nor any proper adjudication had been made and a conclusion had been arrived without stating any reason or without even analyzing the implication of the materials produced, we require the Secretary to the Government of Assam in the Home Department, to conduct a departmental review of all such references…and to take appropriate measures as may be available under the law. Any further action that may be taken pursuant to this order, the result thereof be put up in the public domain or before the people of the State for their knowledge, as the matter of illegal migrants in the State of Assam is an issue which may affect the entire State,” the Court added.

The bench was hearing a writ petition filed by the petitioner against an opinion dated October 29, 2019 rendered by the Foreigners Tribunal No. 2, Bongaigaon (Tribunal) declaring him to be a foreigner on the basis of a discrepancy in the name of his father. 

The documents relied on by the petitioner before the Tribunal stated his father's name as Habi Rahman and Habibar Rahman, and the Tribunal rejected it on the grounds that such documents were not sufficient to prove that Habi Rahman and Habibar Rahman were one and the same person.

In objecting to the tribunal's finding, the Court observed that, “No material is also available on record which may show that the names of Habi Rahman and Habibar Rahman appeared together in the same document to give an indication that they are different person. In Sirajul Hoque Vs. State of Assam & Others reported (2019) 5 SCC 534, the Supreme Court was of the view that the minor variation in the spellings of the name is not to be made a basis to conclude that the two persons may be different persons,” the Court said.

It was opined by the Court that the minor discrepancy in the name of the person being depicted was required to be ignored and merely because of the discrepancy of the name between Habi Rahman and Habibar Rahman, the petitioner's application for citizenship could not be rejected under the law unless it was proved that Habi Rahman and Habibar Rahman were two different persons.

Thus, the Court remanded the matter to the Tribunal to re-examine the documents and pass a reasoned order.

Citation: 2023 LiveLaw (Gau) 105

Click Here To Read/Download Order