Citizenship Is An Essential Right: Gauhati High Court Sets Aside Ex-Parte Order Declaring Man As Foreigner

The Gauhati High Court has observed that citizenship, being an essential right of a person, ordinarily, should be decided based on merit by considering the material evidence that may be adduced by the person concerned and not by way of default.

A Division Bench of Justices Manish Choudhary and N. Kotiswar Singh set aside an ex-parte order of the Foreigner's Tribunal, declaring the petitioner as 'foreigner' under Section 2(a) of the Foreigners Act, 1946 because he failed to submit a written statement by adducing evidence to prove his documents.

Advocate M.A. Sheikh argued for the petitioners that he is a very poor person. He could not readily collect the relevant documents bearing the names of his grandfather, father, and in respect of him for filing the written statement. As such, the petitioner could not appear before the Tribunal.

He also argued that he could not communicate with the engaged counsel, nor his counsel communicated with him of the subsequent dates fixed by the Tribunal.

It was submitted that the petitioner had to leave the State of Assam for Kerala to earn his livelihood. He also submitted that the verification officer lodged the case against the petitioner in the Foreigners' Tribunal as a 'D' voter without properly examining his documents. However, on receipt of the notice from the Tribunal, the petitioner appeared through his engaged lawyer as he had no intention to evade the proceedings.

After that, several dates were given by the Tribunal for filing of the written statement on certain facts, but the petitioner failed to do the same for the reasons stated above. As a result, the impugned ex-parte order was passed.

Advocate A. Verma, special counsel for Foreigner's Tribunal, submitted that the law is clear that in the absence of the proceedee concerned, the Tribunal had no option but to proceed ex-parte and declare him as a foreigner as required under the law.

Findings

The Court sent the matter back to the Foreigners' Tribunal by noting that if the petitioner can prove through the documents, he can make a reasonable claim that he is an Indian citizen and not a foreigner.

On the question of his non-appearance, the Court noted that there were sufficient reasons for the petitioner for not appearing before the Foreigners' Tribunal to enable the Tribunal to consider his claim on merit.

The Court directed the petitioner to appear before the Foreigners' Tribunal for fresh proceedings. The Court noted,

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

The Court also imposed a cost of Rs. 5,000/- on the petitioner to be deposited before the Tribunal. The failure to deposit the same will revive the ex-parte order set aside by the High Court.

Case Title: Asor Uddin v. The Union of India & Ors.

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