SC Grants Protection From Coercive Steps To Person Adjudged "Foreigner" To File Review On Basis Of Centre's Notification Exempting Migrants Of Specified Communities From Foreigners Act

On September 7, 2015, by notification being GSR 686(E), Paragraph 3A of the Foreigners Order,1948 was added, by virtue of which persons belonging to minority communities in Bangladesh, Pakistan and Afghanistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, who were compelled to seek shelter in India due to religious persecution and entered into India on or before December 31, 2014, and who do not have valid requisite documents, are granted exemption from the application of provisions of the Foreigners Act, 1946 and the orders made thereunder in respect of their stay in India.

The bench of Justices D. Y. Chandrachud and Hrishikesh Roy was hearing an SLP by one Mangla Das against the January, 2019 order of a division bench of the Gauhati High court, by which the opinion of the Foreigners' Tribunal declaring him a "foreigner" was confirmed.

In its order passed on Monday, the bench of Justices Chandrachud and Roy records what the Court had directed in Anima Sutradhar's case in 2016: "Delay condoned. Our attention has been drawn to a notification issued in the Gazette of India on 8th September, 2015. The order reads as follows:

G.S.R. 686(E).- In exercise of the powers conferred by Section 3 of the Foreigners Act, 1946(31 of 1946), the Central Government hereby makes the following order further to amend the Foreigners Order, 1948, namely:-
1.(1) This Order may be called the Foreigners (Amendment) Order, 2015.
(2) It shall come into force on the date of its publication in the Official Gazette.
2. In the Foreigners Order, 1948, after paragraph 3, the following paragraph shall be inserted, namely:-
'3A. Exemption of certain class of foreigners.(1) Persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December, 2014-
(a) without valid documents including passport or other travel documents and who have been exempted under rule 4 from the provisions of rule 3 of the Passport (Entry into India) Rules, 1950, made under Section 3 of the Passport (Entry into India) Act, 1920(34 of 1920); or
(b) with valid documents including passport or other travel document and the validity of any of such documents has expired,

are hereby granted exemption from the application of provisions of the Foreigners Act, 1946 and the orders made thereunder in respect of their stay in India without such documents or after the expiry of those documents, as the case may be, from the date of publication of this order in the Official Gazette'
It appears that this order was not brought to the notice of the High Court. Under the circumstances, we grant liberty to the petitioner to approach the High Court with a review petition. The High Court will consider this notification as well as any other document that the petitioner may choose to file on record. The special leave petition is disposed of. There will be a stay of the order of the High Court for a period of four weeks from today"

By notification being GSR 685(E) of September 7, 2015, the requirement of valid documents including passport and other travel documents for entering India for a person proceeding from any place outside India has been done away with in respect of 'persons belonging to minority communities in Bangladesh, Pakistan and Afghanistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before December 31, 2014'. This has been done by inserting Rule 4(1) (ha) in the Passport (Entry into India) Rules, 1950.

As recorded in the impugned order of the High Court, reference was made by the Superintendent of Police(Border), Lakhimpur district for an opinion on the basis of the police enquiry report expressing doubt about the nationality of the petitioner to the Foreigners' Tribunal, Lakhimpur, based on which the Tribunal registered a case in 2015. On receipt of the notice, the present petitioner as the proceedee filed his written statement denying the claim that he is a foreigner post 25.3.1971. It was submitted that the petitioner is a permanent resident and citizen of India by birth. The father of the petitioner is Tembaru Das. The name of the father is recorded in the voter list of the year, 1960 and name of the elder brother Debeswar Das is also recorded in the voter list of 1971 of 32 South Salmara LAC. The petitioner was born in village Bherbheri under P.S. South Salmara in the district of Dhubri. His father died about 30/40 years back and his mother also died after one year of his father's death. He had seven brothers and sisters out of which, elder brothers Debeswar and Ratneswar died in the year 1970. He migrated from the district of Dhubri to Lakhimpur and is staying at Badatighat Khakandarguri, Alimur. The name of the mother Kumudini Devi and brother Ratneswar Das are recorded in the voter list of 1960.

In support of his claim, the petitioner relied and exhibited 6 Nos. of exhibits out of which Ext. 1 is the voter identity card, Ext. 2 voter list of 1993 showing the name of the petitioner, Ext. 3 voter list of 1960 of Mankachar LAC, Ext.5 voter list of the year, 1970, Ext. 4 and Ext.6 are details of legacy data.

The Tribunal considered each and every of the documents so exhibited and recorded that Ext. 2 the voter list of 1993 records the name of the petitioner showing the name of his father as Temparu. Ext.3 the voter list of 1960 shows the name of the father of the petitioner as Temboru Ram, son of Dhepu Ram, Ext. 5 , the voter list of 1970 showing the names of Debeswar Das, brother and Ratneswari Das purported sister of the petitioner showing their father's name as Tembaru. The Tribunal held that there are variations in the name of the projected father of the petitioner. In the voter list of 1960 his father's name, as hereinabove, is shown as Temboru Ram alongwith Kumudini Devi his wife and Debeswar Das son of Tembaru Das. If Kumudini Devi is taken as the mother of the petitioner then she is not the wife of Tembaru Ram. On the other hand, if the name of Debeswar Das is considered, the name of the father is shown as Tembaru Das. Further, voter list of 1960 shows Ratneswari as the daughter of Temboru Ram. "From the deposition of the petitioner, the Tribunal finds contradictions with respect to the date of birth of the petitioner himself. After discussing as aforesaid the Tribunal held that the proceedee has failed to produce any cogent and reliable evidence in respect of the name of his father and accordingly, the petitioner failed to establish his lineage with Tembaru Das whom he claimed to be his father", it was recorded in the High Court order.

"We have considered the submission of the counsel and also perused the various annexures annexed to this writ petition. The annexures in this writ petition are exhibited which the petitioner produced before the Tribunal. While passing the impugned opinion it is found that the specific pleadings in the written statement by the petitioner has been duly considered by the Tribunal. The specific pleading of the petitioner is that he is the son of late Tembaru Das of village Salmara in the district of Dhubri and in support of the said pleadings the voter list of 1960 is relied. Similarly he claims one Debeswar Das, son of Tembaru Das to be his brother. He admitted that he is holding electoral photo identity card and he is casting vote since 1993 and in support of his contention Ext.2 is the voter list of 1993 showing his name as the son of Temparu. On the other hand, the voter list of 1960 which is ext. 1 shows the name of eight persons out of which the petitioner claims Tembaru Ram son of Dhepuram to be his father. In the said voter list the projected elder brother Debeswar Das's name is also shown to be recorded but father's name is shown as Tembaru Das. It is not the case of the petitioner that he claims his lineage from Debeswar Das rather his claim is from Tembaru Ram and to that effect he relies the voter list of 1960. The same is in clear contradiction to the name of his father shown in the electoral voter identity card wherein his father's name is shown as Tempa Das. There is no such documentary piece of evidence showing that the valid name of his projected father resembles one and the only person whose name is Tempa Das", noted the High Court.

Under such circumstances, the High Court did not find any error apparent on the face of the opinion, resulting in the dismissal of this writ petition at the motion stage.