'Fatal': Gauhati HC Sets Aside Foreigners' Tribunal's Order Declaring A Woman As Foreigner Without Reference To Date Of Alleged Entry Into India

The Gauhati High Court has recently set aside an order of a foreigners' tribunal declaring a woman as a 'foreigner', after noting that the tribunal had not specified the period during which she was alleged to have come to India.

The Court observed that such non-mentioning of the period of entry by the tribunal is 'fatal' and therefore must be reconsidered. 

A Bench comprising Justices N. Kotiswar Singh and Malasri Nandi noted that those persons who entered India before 01.01.1966, though illegally, and had been ordinarily resident of Assam, are not termed as foreigners but Indian citizens.

Thus, determination of date of entry becomes relevant. It observed,

"It was necessary on the part of the Tribunal to give the opinion with reference to the time when the petitioner had allegedly entered India (Assam). However, the same has not been done as clearly evident from the opinion and as such, we are of the view that the said opinion cannot be sustained in law and accordingly, requires to be remitted to the Tribunal for fresh consideration"

In the instant case, the petitioner had challenged the order dated October 1, 2018, issued by the Foreigners Tribunal, 4th, Nagaon, Juria (Assam) by which the petitioner was declared a foreigner without any reference to the period during which she was alleged to have come to India. 

The counsel appearing for the petitioner submitted that a person cannot be declared a foreigner generally and that such an order must have some reference to the period of entry in India as to whether it was between January 1, 1966 and on or before March 25, 1971 or after March 25, 1971. This is because such a period of entry will have a bearing on the nature of right that a person will have under law. 

It was further pointed out to the Court that a perusal of the verification report shows that the column for the period of migration has not been filled up. Thus, it was contended that there is no indication as to when the petitioner was found to have entered into Assam as required to be mentioned in the format. 

Taking cognizance of the grievance raised, the Court observed that non-mentioning of the period of entry would be 'fatal' as pursuant to Section 6A(2) of the Citizenship Act, 1955, all those persons of Indian origin who came to Assam from the specified territory before January 1, 1966 and who have been ordinarily resident in Assam since the dates of their entry to Assam shall be deemed to be citizens of India from January 1, 1966. Thus, those persons even if illegally entered India but had entered before January 1, 1966 and had been ordinarily resident of Assam, will not be termed as foreigners but Indian citizens, the Court stated further. 

"As provided under Section 6A(3), those persons who came to Assam on or after 01.01.1966 but before 25.03.1971 from the specified territory and who had been ordinarily resident of Assam, and have been detected as foreigners by the Tribunal, will not be liable to be deported and have a right to be registered as citizens of India provided, they register themselves after being detected as foreigners by the Tribunal with the concerned registering authority and on expiry of 10(ten) years thereafter, will be treated as Indian citizens. However, those who came to Assam after 25.03.1971 will be foreigners, plain and simple, and will not be entitled to any such benefits", the Court elucidated further. 

Accordingly, the Court directed the petitioner to approach the Tribunal again and raise its grievance regarding the absence of a proper enquiry and a proper reference. Reliance was placed on the Gauhati High Court judgment in the State of Assam and Ors. v. Moslem Mondal and Ors in this regard. 

The Court directed the petitioner to approach the Foreigners' Tribunal on January 4, 2022 and ordered the Tribunal to pass a fresh order in accordance with law after hearing the petitioner. 

"From the above, is clear that there has to be a proper enquiry before the reference is made. Reference can only be made on the basis of the materials on record and the Tribunal is also required to prima facie satisfy itself about the existence of the main ground before issuing notice to the proceedee", the Court remarked further. 

In a related matter, the Gauhati High Court on December 1 also set aside an ex-parte order by a foreigners' tribunal declaring a Silchar resident as a foreigner after noting that the tribunal had failed to properly serve notice, thus rendering the proceedings illegal.

Case Title: Asmina Begum v. Union of India 

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