According to a recent Gauhati High Court order, the Assam government has been instructed to carry out a departmental review in cases where foreigner tribunals have declared applicants or proceedees to be citizens of India or foreigners without properly analysing the evidence or providing a rationale for the declaration. As per a report of the LiveLaw, the state government has also been directed to take the necessary action in such cases.
The said order had been passed by a divisive bench of the High Court upon observing a worrying trend in the orders of the foreigner tribunals whereby declarations regarding one’s citizenship is given based merely recording material without analysis or failing to assign any reasons for their declarations.
“As almost 85% of the references have resulted in the proceedee being declared to be citizens, where it is noticed that in many such cases neither any decision nor any proper adjudication had been made and a conclusion had been arrived without stating any reason or without even analyzing the implication of the materials produced.”
Findings of the Tribunal in the said case:
The divisive bench of the Gauhati High Court was hearing a writ petition filed by the petitioner against an order of the Foreigner Tribunal No. 2, Bongaigaon (Tribunal), declaring the petitioner to be a foreigner. The said order, dated October 29, 2019, had declared the petitioner to be a foreigner on the basis of a discrepancy in the name of his father. The documents relied on by the petitioner before the Tribunal stated his father’s name as Habi Rahman and Habibar Rahman, and the Tribunal rejected it on the grounds that such documents were not sufficient to prove that Habi Rahman and Habibar Rahman were one and the same person.
Decision of the High Court:
Minor discrepancies in the name to be ignored- The court had objected to the finding of the tribunal in the aforementioned case and observed that, “No material is also available on record which may show that the names of Habi Rahman and Habibar Rahman appeared together in the same document to give an indication that they are different person. In Sirajul Hoque Vs. State of Assam & Others reported (2019) 5 SCC 534, the Supreme Court was of the view that the minor variation in the spellings of the name is not to be made a basis to conclude that the two persons may be different persons,” the Court had said, as per the report of LiveLaw.
The Court had held the opinion that a minor discrepancy in the name of the person being depicted was required to be ignored. Additionally, the Court also provided that merely because of the discrepancy of the name between Habi Rahman and Habibar Rahman, the petitioner’s application for citizenship could not be rejected under the law unless it was proved that Habi Rahman and Habibar Rahman were two different persons. Therefore, the Court remanded the said matter to the Tribunal to re-examine the documents and pass a reasoned order.
Tribunals not following the law established- In its order, the Court deprecated the aforementioned trend being adopted by the Tribunals and it was noted that any conclusion reached by the Tribunals without following the law established and materials produced cannot be accepted. As per LiveLaw report, the bench observed:
“Such procedure adopted would have to be deprecated. The Tribunals are entrusted upon the jurisdiction to adjudicate a reference made and decide upon the materials produced before it by giving reasons as to whether the materials indicated the person to be a foreigner or a citizen. Any conclusion arrived dehors any decision or adjudication cannot be an acceptable conclusion and it has to be construed that the Tribunals had not discharged the jurisdiction vested upon it under the law.”
The Court further noted that in some other cases, a proceedee had been deemed to be a foreigner by a Tribunal without providing any explanation for the said decision. As per the bench, some of these decisions had been made by the Tribunal without even referencing to the evidence that was available on record. With regards to this, the Court also emphasised on the instances where the same procedure (or lack thereof) had been employed by the Tribunal to wrongly declare a proceedee to be a citizen or a foreigner. The court deprecated the conduct of the Tribunal, deeming it to have serious consequences.
As per the LiveLaw report, the Court stated: “But we are afraid to observe that in much many more other orders, the same procedure of describing the materials produced is adopted but without analyzing the implication of the materials or without stating any reason and without arriving at any decision, a conclusion is arrived that in the view of the Tribunal, the proceedee concerned is a citizen. In some of the matters, it is noticed that even there is no proper recording as to what material has been relied upon which would be a basis for the conclusion arrived. Such procedure adopted would have a far more serious consequence.”
Accordingly, as provided by the report of LiveLaw, the Court directed the Secretary to the Government of Assam, Home Department, to conduct a departmental review of all such references that had been made by the Tribunals declaring the proceedees to be citizens. Subsequently, it was directed by the Court that wherever it was noticed that any such conclusion or declaration of proceedings had been made without any analysis of the materials or without providing for any reason thereof and no decision had been arrived at, the Home Department would be free to take any appropriate measures as may be available under the law.
It was further opined that if any action or measure was taken, then it should strictly comply with the required procedure of law as may be applicable for the purpose and should also comply with the principles of natural justice.
“we require the Secretary to the Government of Assam in the Home Department, to conduct a departmental review of all such references…and to take appropriate measures as may be available under the law. Any further action that may be taken pursuant to this order, the result thereof be put up in the public domain or before the people of the State for their knowledge, as the matter of illegal migrants in the State of Assam is an issue which may affect the entire State,” the Court added, as per LiveLaw.
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