Foreigners' Tribunal Declares 5 Members Of A Family 'Foreigners' As They Failed To Appear Before It: Gauhati HC Sets Aside Order

The Gauhati High Court on Wednesday set aside an order/opinion of the Foreigners Tribunal declaring a man and his family members as 'Foreigner' as the head of the family failed to appear before the Tribunal after being served notice and also did not file a written statement after seeking time.

The Bench of Justice Malasri Nandi and Justice N. Kotiswar Singh set aside the ex-parte order passed by the Tribunal as it noted that the Order would have a cascading effect on other members of his family i.e. his wife and minor children, as the rest of the family members are dependent on the petitioner No.1 (who failed to appear before the tribunal).

Background of the Case

On April 26, 2018, an order was passed by the Member, Foreigners Tribunal-4th, Cachar, Silchar, Assam upholding the decision of the Tribunal dated January 18, 2018, passed in F.T.4th Case No.327/2017 by which the petitioner No.1 and his family members were declared foreigners of post 25.03.1971 stream as they failed to appear before it.

When the petitioner No.1 approached the Tribunal for setting aside the said ex-parte opinion, the tribunal rejected his application on the ground that no sufficient cause was shown by the petitioner for setting aside the ex-parte order

Challengng the orders, the petitioners moved before the High Court and claimed that there are sufficient materials to show that they are Indians and not foreigners.

It was also averred that the petitioner No.1, because of his ill health could not appear before the Tribunal resulting in the passing of the ex-parte order, and because of the inability of the petitioner No.1 to appear before the Tribunal, the ex-parte order had been passed against his wife and three minor children as well.

High Court's observations 

At the outset, the Court observed that if the petitioners are able to prove the aforesaid documents, they may have a legitimate claim that they are Indians and not foreigners.

Further, stressing upon the importance of citizenship of a person in today's world, the Court observed thus:

"It is the key to the enjoyment of the rights guaranteed by law of the land. 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."

Significantly, referring to the opinion delivered by the Tribunal in the instant case, the Court noted that ordinarily, such an opinion of the Tribunal, ought to be given after analyzing the evidence that may be produced by the procedure and not by way of default as has been done in the present case.

Further, noting that the Court was conscious of the fact that ex-parte orders cannot be interfered with in a routine manner, however, the Court added, in the present case, the matter pertains to a very important right of a person i.e. citizenship.

They have been directed to appear before the Tribunal on or before 24.12.2021 and file their written statement and adduce evidence in support of their claim that they are Indians.

Accordingly, setting aside the orders and considering the nature of the case, the Court observed that petitioners may be offered another opportunity to appear before the Tribunal to prove that they are Indians and not foreigners and directed thus:

"However, since citizenship of the petitioners has come under cloud, they will remain on bail during the proceedings for which they will appear before the Superintendent of Police (B), Cachar within 15(fifteen) days from today by furnishing a bail bond of ` 5,000/- each with one local surety of the like amount to the satisfaction of the said authority."

Case title - Rajendra Das and others v. The Union of India and others

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