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CAUGHT IN A BUREAUCRATIC WEB

Why in news?

The Gauhati High Court declared Sahijuddin a foreigner on November 13, 2015. He had appealed to the High Court against an ex-parte order of the Foreigners Tribunal in Kokrajhar declaring him a foreigner. Mr. Sahijuddin was too poor to afford the services of a lawyer and was not represented before the Tribunal. The High Court found this reason unconvincing and stripped him of his citizenship without even examining the documents he possessed.

What is discussed in this article?

The authors discuss the problems with how appeals from Foreigners Tribunals cases are decided by the Gauhati High Court, based on an analysis of 787 such orders and judgments between 2010 and 2019.

Facts:
Of the cases analysed, 41% of the appeals were from Morigaon, Barpeta, and Goalpara, none of which share a border with Bangladesh. Around 35% of these appeals were from ex-parte orders of Foreigners Tribunals i.e., without hearing the person accused of being a foreigner.

Ex parte is a legal term defined as one of the involved parties are not present or not represented. An example of an ex parte hearing is one where the victim is not there.


Details:

  • The burden of proof under the Foreigners Act, 1946 is on the person accused of being a foreigner.
  • If the person accused does not appear before the Tribunal, they will be declared a foreigner without the state having to prove their case.
  • In 99% of the appeals from ex-parte orders of the Foreigners Tribunals, the High Court agreed with the findings of the Tribunals.
  • All the persons who appealed to the High Court had some form of documentation.
  • Around 61% of them produced electoral rolls and 39% of them produced permanent residence certificates/certificates from the panchayat.
  • In 66% of the cases, the Foreigners Tribunals found the documentation unsatisfactory.
  • In 38% of the cases, documentation was rejected because spellings did not match and in 71% of them, the secondary evidence was deemed inadmissible.
  • This means that where people had produced copies of documents, these were not certified copies or the person who had created the document could not certify its contents.

Note: These numbers are just for reference purpose. Don’t try to memorise them.

Problem in case of Women:

  • Women who do not have birth certificates and get married before registering as voters do not have any document linking them to their parents.
  • The Supreme Court in Rupajan Begum vs. Union of India allowed a certificate from the gram panchayat secretary to be submitted as a link document to prove descent from a person who entered India before March 24, 1971.
  • However, wherever this certificate is produced as evidence, the gram panchayat secretary needs to testify in person. This standard of proof is quite difficult to meet, given that gram panchayat secretaries change over time.
  • In 99% of the cases where such a document was produced, the person was declared a foreigner.

Note: These numbers are just for reference purpose. Don’t try to memorise them.

Detention and deportation

  • Overall, in 97% of the appeals before the High Court, the person was declared a foreigner.
  • In 15% of these cases, the High Court ordered deportation.
  • Amongst the remaining cases, in 1%, the Court ordered that the person be sent to a detention centre, and in 80% of the cases, the Court did not specify what steps were to be taken.
  • In a majority of cases, the High Court instructed the Border Police or the Foreigners Tribunal to “do the needful.”

Note: These numbers are just for reference purpose. Don’t try to memorise them.

The question of citizenship is nestled in a confusing tangle of documents, bureaucracy, and legal procedures which Foreigners Tribunals and the Gauhati High Court are tasked with resolving.

Background:

The Foreigners’ Tribunals are quasi-judicial bodies meant to “furnish opinion on the question as to whether a person is or is not a foreigner within the meaning of Foreigners Act, 1946”.

In 1964, the Centre passed the Foreigners’ (Tribunals) Order under provisions of Section 3 of the Act.

The Foreigners’ Tribunals get two kinds of cases: 

  • those against whom a “reference” has been made by border police, and
  • those whose names in the electoral rolls have a D (Doubtful) against them.

Under what provision do Foreigners’ Tribunals pass ex parte orders?

Section 9 of the Foreigners Act says that “the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, not withstanding anything contained in the Indian Evidence Act, 1872, lie upon such person”.

Thus, the accused has to prove he or she is an Indian. Since the onus is on the person, if he or she is absconding and doesn’t appear before the tribunal, the member can pass an ex parte order.

Can an accused contest an ex parte order?

The said order may be reviewed by the Foreigners’ Tribunal if sufficient reasons are shown by the proceedee for his absence or for having no knowledge about the cases, within the absence or for having no knowledge about such order.

What happens if an exparte order does not come up for review, or a review fails?

If police can track the person after the order, he or she will be arrested and put into a detention camp. If not, the person will be an ‘untraced foreigner’. Many ‘declared foreigners’ appeal in the High Court and then the Supreme Court against an order by the Foreigners’ Tribunals.

Q. What is/are following statements true regarding Foreigners’ Tribunals?
1) The Foreigners’ Tribunals are constitutional bodies
2) Onus of proving that accused person is not a foreigner is on accused only
3)  Foreigners’ Tribunals can hear those case where names in the electoral rolls have a D (Doubtful) against them   A) Only 2
B) 2 and 3
C) 1 and 2
d) All of the above   Ans. B
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September 2022
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