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Beyond jurisdiction says Gauhati HC, case remanded back to Foreigner Tribunal

An order declaring Golapi Begum foreigner was set aside and the petitioner protected

CJP 24 Jul 2021

Foriegner TribunalImage Courtesy:telegraphindia.com

The Gauhati High Court has set aside an order of Foreigners Tribunal, Baksa, Assam declaring an individual to be foreigner, holding that the Tribunal had acted beyond its jurisdiction. The bench of Justices N Kotiswar Singh and Soumitra Saikia held that the Tribunal had acted beyond the reference made by the Superintendent of Police and thus remanded the case back to the Tribunal to be decided again within the timeframe of the reference. The court also outlined the relief available to the petitioner and her family in case they are declared foreigners as they were deemed to have entered Assam after January 1, 1966 and before March 25, 1971.

Background

The writ petition was filed by one Golapi Begum challenging the order passed by Foreigners Tribunal, Baksa, Assam on November 29, 2019 delcaring her to be a foreigner. The order stated that Begum was not successful in proving her citizenship and that she had entered India illegally after March 24, 1971.In May 2020, the Gauhati High Court had granted protection to the petitioner from coercive steps subject to payment of Rs. 5,000/- as bail bond and that her biometrics are recorded by the Superintendent of Police (Border), Baksa.

Foreigners (Tribunals for Assam) Order, 2006 which was framed under section 3 of Foreigners’ Act, 1946 deals with Constitution of Tribunals. As per Order 2 (1), Central Government may by order refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946 to a Tribunal to be constituted for the purpose for its opinion. This power of reference has been delegated to all concerned Superintendents of Police in the state.

In August 2007, a reference was made against the petitioner and her family members on the basis of investigation and enquiry that they are foreigners coming into Assam after January 1, 1966 and before March 25, 1971. This is the extract of the reference:

While the reference being made is in the matter of the suspected foreigners entering Assam after January 1, 1966 and before March 25, 1971, the foreigners Tribunal’s impugned order deemed that the petitioner entered India illegally after March 24, 1971.

The court’s findings

The high court held that the Tribunal acted beyond its jurisdiction while declaring so. “The Tribunal cannot suo motu assume jurisdiction to give an opinion which is not sought. No opinion was sought from the Tribunal as to whether the petitioner entered India after 24.03.1971 or not,” the high court held.

“As such, though the reference made by the Superintendent of Police (Border), Baksa vide Memo No. BSA/B/06/07/314-37 dated 31.08.2007 against the petitioner was that he was a foreigner who entered into Assam after 01.01.1966 and before 25.03.1971, the Tribunal, however, rendered its opinion by holding that the petitioner entered India on or after 25.03.1971,” observed the court.

The court also cited the high court previous judgements in Santosh Das Vs. Union of India (2017) 2 GLT 1065 and in SonaKha @ Sona Khan vs. Union of India and Ors. (WP(C) No.1293/2021) in which the Foreigners’ Tribunals assuming jurisdiction beyond the reference had been held to be not permissible.

In Santosh Das Vs. Union of India a similar circumstance had arisen of the Tribunal acting beyond jurisdiction and the court had held thus:

16. From a careful reading of Order 2(1), what is discernible is that a reference is made to a Tribunal for its opinion whether a person is or is not a foreigner within the meaning of Section 2(a) of the Foreigners Act, 1946. The Tribunal gets its jurisdiction to render its opinion only when a reference is made to it. Without a reference being made, Tribunal cannot exercise its jurisdiction to opine that a person is nor is not a foreigner. It is only when a reference is ma de as above that the Tribunal assumes jurisdiction to render its opinion. Therefore, to our mind, Tribunal would have to confine to the terms of the reference made to it and cannot go beyond the same. Admittedly, in this case, reference was that petitioner was a foreigner who had illegally entered into India (Assam) from the specified territory during the period 01.01.1966 to 24.03.1971. The Tribunal was required to answer the reference either in favour of the State or in favour of the proceedee. If the reference was to be answered in favour of the State and it was answered rightly so by the Tribunal, the natural corollary would be that petitioner is a foreigner belonging to the 01.01.1966 to 24.03.1971 stream. Therefore, the view taken by the Tribunal that the Foreigners Act, 1946 or the Orders framed there under do not bind it to the terms of the reference is not correct.”

The complete judgement in Santosh Das v UOI may be read here:

The court held that the Tribunal went beyond the reference and rendered its opinion that the petitioner and her family members are illegal immigrants who entered India after March 25, 1971, which is clearly impermissible in law and thus, deemed it illegal.

Hence, the court set aside the impugned order dated November 29, 2019 (passed in F.T. Case No.126/Baksa/2017) and remanded the matter to the Foreigners Tribunal, Baksa, Tamulpur for a fresh decision in terms of the aforementioned reference. “The Foreigners’ Tribunal will hear the matter afresh and thereafter, render a finding as to whether the petitioner entered India between 01.01.1966 and 25.03.1971 or not,” the court ordered.

Procedure after declared foreigner

The court also reiterated that if the Foreigners’ Tribunal answers the reference in affirmative (i.e. declares them foreigners), the petitioner will be entitled to the benefits of registration under Sub-section 3 of Section 6A of the Citizenship Act, 1995 read with Rule 19 of the Citizenship Rules, 2009.

Section 6A of the Citizenship Act deals specifically with provisions as to citizenship of persons covered under the Assam Accord. Under sub-section 3 it is stated that

(3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who

(a) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and

(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and

(c)has been detected to be a foreigner, shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (thereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom.

Further, Rule 19 of the Citizenship Rules, 2009 provides for procedure for registration under Section 6A(3) of the Act. It states that an officer not below the rank of Additional District Magistrate should be appointed as the registering authority in each district. An application under Section 6A(3) of the Citizenship Act is to be made in Form XVIII before the registering authority within a period of thirty days from the date of his detection or identification as a foreigner. Thereafter, the authority will enter the particulars of the application in a register in Form XIX while returning a copy of the application under his seal, to the applicant.

The registering authority also has the power to extend the 30-day period limitation to 60 days for reasons recorded in writing. The registering authority is also required to submit copies of every application thus received in every quarter to the Central government as well as state government.

Section 6A(3) of the Citizenship Act and subsequently Rule 19 of the Citizenship Rules, 2009 is applicable here only because the reference made against the petitioner and her family was that they entered Assam after January 1, 1966 and before March 25, 1971. It is only this specific time period that is dealt with under these provisions and allows the petitioner and her family to get registered as citizens even if they are declared foreigners by the Foreigners Tribunal after re-consideration of their case.

The complete judgement may be read here:

Related:

800 kms, 5 districts: CJP goes the extra mile to locate detention camp inmate’s family
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Beyond jurisdiction says Gauhati HC, case remanded back to Foreigner Tribunal

An order declaring Golapi Begum foreigner was set aside and the petitioner protected

Foriegner TribunalImage Courtesy:telegraphindia.com

The Gauhati High Court has set aside an order of Foreigners Tribunal, Baksa, Assam declaring an individual to be foreigner, holding that the Tribunal had acted beyond its jurisdiction. The bench of Justices N Kotiswar Singh and Soumitra Saikia held that the Tribunal had acted beyond the reference made by the Superintendent of Police and thus remanded the case back to the Tribunal to be decided again within the timeframe of the reference. The court also outlined the relief available to the petitioner and her family in case they are declared foreigners as they were deemed to have entered Assam after January 1, 1966 and before March 25, 1971.

Background

The writ petition was filed by one Golapi Begum challenging the order passed by Foreigners Tribunal, Baksa, Assam on November 29, 2019 delcaring her to be a foreigner. The order stated that Begum was not successful in proving her citizenship and that she had entered India illegally after March 24, 1971.In May 2020, the Gauhati High Court had granted protection to the petitioner from coercive steps subject to payment of Rs. 5,000/- as bail bond and that her biometrics are recorded by the Superintendent of Police (Border), Baksa.

Foreigners (Tribunals for Assam) Order, 2006 which was framed under section 3 of Foreigners’ Act, 1946 deals with Constitution of Tribunals. As per Order 2 (1), Central Government may by order refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946 to a Tribunal to be constituted for the purpose for its opinion. This power of reference has been delegated to all concerned Superintendents of Police in the state.

In August 2007, a reference was made against the petitioner and her family members on the basis of investigation and enquiry that they are foreigners coming into Assam after January 1, 1966 and before March 25, 1971. This is the extract of the reference:

While the reference being made is in the matter of the suspected foreigners entering Assam after January 1, 1966 and before March 25, 1971, the foreigners Tribunal’s impugned order deemed that the petitioner entered India illegally after March 24, 1971.

The court’s findings

The high court held that the Tribunal acted beyond its jurisdiction while declaring so. “The Tribunal cannot suo motu assume jurisdiction to give an opinion which is not sought. No opinion was sought from the Tribunal as to whether the petitioner entered India after 24.03.1971 or not,” the high court held.

“As such, though the reference made by the Superintendent of Police (Border), Baksa vide Memo No. BSA/B/06/07/314-37 dated 31.08.2007 against the petitioner was that he was a foreigner who entered into Assam after 01.01.1966 and before 25.03.1971, the Tribunal, however, rendered its opinion by holding that the petitioner entered India on or after 25.03.1971,” observed the court.

The court also cited the high court previous judgements in Santosh Das Vs. Union of India (2017) 2 GLT 1065 and in SonaKha @ Sona Khan vs. Union of India and Ors. (WP(C) No.1293/2021) in which the Foreigners’ Tribunals assuming jurisdiction beyond the reference had been held to be not permissible.

In Santosh Das Vs. Union of India a similar circumstance had arisen of the Tribunal acting beyond jurisdiction and the court had held thus:

16. From a careful reading of Order 2(1), what is discernible is that a reference is made to a Tribunal for its opinion whether a person is or is not a foreigner within the meaning of Section 2(a) of the Foreigners Act, 1946. The Tribunal gets its jurisdiction to render its opinion only when a reference is made to it. Without a reference being made, Tribunal cannot exercise its jurisdiction to opine that a person is nor is not a foreigner. It is only when a reference is ma de as above that the Tribunal assumes jurisdiction to render its opinion. Therefore, to our mind, Tribunal would have to confine to the terms of the reference made to it and cannot go beyond the same. Admittedly, in this case, reference was that petitioner was a foreigner who had illegally entered into India (Assam) from the specified territory during the period 01.01.1966 to 24.03.1971. The Tribunal was required to answer the reference either in favour of the State or in favour of the proceedee. If the reference was to be answered in favour of the State and it was answered rightly so by the Tribunal, the natural corollary would be that petitioner is a foreigner belonging to the 01.01.1966 to 24.03.1971 stream. Therefore, the view taken by the Tribunal that the Foreigners Act, 1946 or the Orders framed there under do not bind it to the terms of the reference is not correct.”

The complete judgement in Santosh Das v UOI may be read here:

The court held that the Tribunal went beyond the reference and rendered its opinion that the petitioner and her family members are illegal immigrants who entered India after March 25, 1971, which is clearly impermissible in law and thus, deemed it illegal.

Hence, the court set aside the impugned order dated November 29, 2019 (passed in F.T. Case No.126/Baksa/2017) and remanded the matter to the Foreigners Tribunal, Baksa, Tamulpur for a fresh decision in terms of the aforementioned reference. “The Foreigners’ Tribunal will hear the matter afresh and thereafter, render a finding as to whether the petitioner entered India between 01.01.1966 and 25.03.1971 or not,” the court ordered.

Procedure after declared foreigner

The court also reiterated that if the Foreigners’ Tribunal answers the reference in affirmative (i.e. declares them foreigners), the petitioner will be entitled to the benefits of registration under Sub-section 3 of Section 6A of the Citizenship Act, 1995 read with Rule 19 of the Citizenship Rules, 2009.

Section 6A of the Citizenship Act deals specifically with provisions as to citizenship of persons covered under the Assam Accord. Under sub-section 3 it is stated that

(3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who

(a) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and

(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and

(c)has been detected to be a foreigner, shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (thereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom.

Further, Rule 19 of the Citizenship Rules, 2009 provides for procedure for registration under Section 6A(3) of the Act. It states that an officer not below the rank of Additional District Magistrate should be appointed as the registering authority in each district. An application under Section 6A(3) of the Citizenship Act is to be made in Form XVIII before the registering authority within a period of thirty days from the date of his detection or identification as a foreigner. Thereafter, the authority will enter the particulars of the application in a register in Form XIX while returning a copy of the application under his seal, to the applicant.

The registering authority also has the power to extend the 30-day period limitation to 60 days for reasons recorded in writing. The registering authority is also required to submit copies of every application thus received in every quarter to the Central government as well as state government.

Section 6A(3) of the Citizenship Act and subsequently Rule 19 of the Citizenship Rules, 2009 is applicable here only because the reference made against the petitioner and her family was that they entered Assam after January 1, 1966 and before March 25, 1971. It is only this specific time period that is dealt with under these provisions and allows the petitioner and her family to get registered as citizens even if they are declared foreigners by the Foreigners Tribunal after re-consideration of their case.

The complete judgement may be read here:

Related:

800 kms, 5 districts: CJP goes the extra mile to locate detention camp inmate’s family
CJP’s online training programme on CAA-NPR-NRC
CJP’s work still going strong in Assam

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