On November 21, 2023, a division bench of the Gauhati High Court, who was hearing a petition filed by a man named Forhad Ali against the opinion of the Foreigner’s Tribunal declaring him a foreigner, delivered a very crucial judgment. The bench comprising Justices Achintya Malla Bujor Barua and Mitali Thakuria not only addressed Ali’s request for a review of the aforementioned Bongaigaon Tribunal’s ruling, but it also provided a severely critical assessment of the Foreigners Tribunal system, particularly its rather scattered operational procedures. Given this, the court instructed the Assam government to examine situations in which the Foreigners Tribunals determined an applicant’s nationality or immigration status without conducting a thorough study of the supporting documentation. The aforementioned High Court ruling may have a further negative effect on the already suffering people of Assam, the majority of whom are being singled out due to their religious beliefs. While the High Court correctly observed there to be inconsistencies in the orders of the Tribunals, the ones on trial will now have to endure an additional round of bureaucratic scrutiny in addition to proving their Indian citizenship in these Tribunals. This step, especially in terms of the visible biasness showcased by this executive authority on many occasions, has created another loop of legal arbitrariness for the ones put to trial as well as those who have already sustained the trial as the High Court has granted the Assam government the power to “review”.
Brief background of the case-
The divisive bench of the Gauhati High Court was hearing a writ petition filed by the petitioner, Forhad Ali, 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, which consisted of Voter’s List of various years and the Jamabandi of a plot of land, 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.
The loopholes within the observations made by the judgement–
1. If enough documents were present for the High Court to question the order of the Tribunal, why was the case remanded back to the Tribunal?
In regards to the discrepancies in the name of the father, the court objected to the finding of the tribunal 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.” (Para 5)
Diving more into the issue and the documents provided as evidence, the Court held the opinion that a minor discrepancy in the name of the person being depicted was required to be ignored. Additionally, the Court provided that merely because of the discrepancy of the name between Habi Rahman and Habibar Rahman, between which there also exists a similarity and proximity, 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.
The bench had also noted that the tribunal had used an inappropriate arithmetic calculation on the age of Ali’s father to reject the voter lists that he furnished. Specific to the land documents relied upon by the petitioner as evidence, the High Court held that the petitioner discharged the initial burden of proof in the case and stated “The Exhibit-11 Jamabandi also contains the information that the land had been mutated in the name of Forhad Ali son of Habibar Rahman in place of Habibar Rahman in respect of a plot of land at Village Lotibari Part-III. As per the order of the Circle Officer dated January 18, 2017 in Mutation Case No. 2584/2016-17, and if the information contained in the Jamabandi is acceptable which shows that Forhad Ali is the son of Habi Rahman of Village Lotibari Part-III and the name of Habibar Rahman as Habi Rahman as appears in the Voters Lists of the year 1966 & 1970, the petitioner may have discharged the burden under Section 9 of the Foreigners Act, 1946.” (Para 15)
Even as the High Court made the aforementioned strong observations, it refuses to take the next logical step and instead takes a U-turn by remanding the matter back to the Foreigners Tribunal. The bench further urged the Foreigners Tribunal, a quasi-judicial bodies established under the Foreigners (Tribunals) Order, 1964 and the Foreigners Act, 1946, to re-examine the “complete Voters Lists of the years 1966, 1970, 1977 & 1985 in respect of the Village Lotibari Part-III as well as the information contained in the Exhibit-11 Jamabandi and pass a reasoned order”. (Para 16)
Furthermore, while emphasising on the duty of the Tribunal to pass a “reasoned order”, the bench holds that the said reasoned order can either be in favour of the petitioner and would prevail over the previous 2019 order of the Tribunal or may be against the petitioner, in which case the “consequences under the law may follow.” (Para 17)
The said decision of the Court does not sit right and raises the big question- why did not the High Court bench did not reach a decision on the case of Ali itself, based on the observations made by them? By once again remanding the matter to the Tribunal and urging them to “pass a reasoned order”, the Court re-started the process of scrutiny for the petitioner. It is crucial to highlight here that after having received a negative unfavourable order by the Foreigners Tribunal, the petitioner had rightfully approached the High Court by filing a Writ Petition. Remanding the said matter to the Tribunal to re-examine the documents and pass a reasoned order, without even making any comment on the merits of the case, the High Court bench asserted that “till the reasoned order is passed, no coercive action shall be taken against the petitioners.” (Para 18)
2. How does, the Tribunals not following the law does established, warrant the involvement of an executive authority?
In its judgment, the High Court bench severely deprecated the Foreigner Tribunals for reaching conclusions in matters of citizenship without following the law established and materials produced cannot be accepted. The bench also specifically pointed to the Tribunals not providing any reason behind reaching the conclusion in the matter. Highlighting this trend, the bench in its order stated that “In course of the present proceeding as well as other proceedings, it has been noticed that in many cases, a proceedee had been declared to be a foreigner without stating the reason as to why the Tribunal arrives at such a conclusion and also not deciding the matter as per the materials on record. It is noticed that the Tribunals often state and describe the materials which the proceedee relies upon in course of the proceeding and thereafter merely arrives at a conclusion that in the view of the Tribunal, the proceedee is a foreigner.”
Shedding light on this very crucial issue of the Foreigners Tribunal not following the law established through legislative procedures, landmark judgments and precedents, the High Court held that any conclusion that is reached by the Tribunals in any matter will not be acceptable if they are not as per procedure established by law, based upon the documents provided and does not specify the reasons for decision taken. The bench in its order stated “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.” (Para 20)
Further slamming the Tribunals, the bench stated that they wanted to know the procedures being followed by the Tribunals in declaring a person to be a foreigner or a citizen as people who have been excluded from the National Register of Citizens for Assam or whose citizenship has been marked as “doubtful” appeal to such tribunals. The High Court pointedly mentioned the submission made by the Assam government that almost 85% of the cases that came to the Foreigners Tribunals eventually resulted in the proceedees being declared Indians. In its judgement, the court stated “We are particularly interested in view of a submission made by the learned counsel for the State of Assam in the Home Department that statistically speaking in about 85% of the referred cases, the proceedees have been declared to be citizens.”
In view of the same, the bench held that “We are concerned that if proceedees have been declared to be foreigner without stating any reason and without analyzing the implication of the materials being produced and if the same procedure is adopted to declare a proceedee to be a citizen, there is a good possibility that many number of proceedees who may be foreigners or illegal migrants have been wrongly declared to be citizens by the Tribunals.”
Through the aforementioned observation, the bench made a very critical statement regarding the discrepancies and arbitrariness that have existed in orders of the Tribunals, resulting in the High Court questioning other orders delivered by the Tribunal which declared foreigners to be citizens. It is pertinent to highlight here that the bench also highlights that the said observations have been made by them after perusing through “a good number of judgments on a random sample basis from the Tribunals all over the State wherein the proceedees have been declared to be citizens.” (Para 23)
It is provided by the bench that out of the judgments viewed by the High Court randomly, some of them have passed a good reasoned order based on their analysis of the materials on record. However, the bench stated that “in many of the 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.” (Para 23)
This procedure adopted by the Tribunals, according to the bench, “would have a far more serious consequence.”
Basing upon this “possibility” of the Tribunals wrongfully declaring the “foreigners or illegal migrants” to be citizens of India, the bench then “requires” for the Secretary to the Government of Assam in the Home Department to conduct a departmental review of all such matters wherein the person in question has been declared to be a Indian citizen. In furtherance to this, the bench empowers the state government to “take appropriate measures as may be available under the law” if any discrepancies are found in such orders of the tribunals.
In the judgement, the Bench states “we require the Secretary to the Government of Assam in the Home Department, to conduct a departmental review of all such references that had been answered by the Tribunals declaring the proceedees to be citizens and wherever it is noticed that any such conclusion or declaration had been made without any analysis of the materials or without providing for any reason thereof and without arriving at any decision, the authorities in the State of Assam in the Home Department to take appropriate measures as may be available under the law.” (Para 24)
Without delving into whether an executive authority has the right the review the orders of a quasi-judicial body and follow the legal principle of natural justice, the bench states that “a responsibility is entrusted upon the State of Assam in the Home Department for doing the needful as indicated.” (Para 25)
It is imperative to highlight here that while lamenting the Foreigners Tribunals of reaching conclusions that have no basis, the Gauhati High Court itself does the same. By using vague terms in regards to the state government of Assam to “take appropriate measures as may be available under the law” in cases where arbitrariness in order is observed, without providing any limit to the same, the Court has provided the government with extraordinary discretionary powers. It is essential to note here that the High Court has not specifically provided any specific standards against which these previous orders of the Tribunals declaring persons to be Indian citizens are to be compared.
Another question that the conclusion of the said order raises is why the particular statistic of 85%, which has been provided by the state government and then supported by a random perusal of orders by the High Court bench, forms the basis of this one-sided review? The loophole behind only requiring the review of the orders declaring persons in question to be Indian citizens by the state government has not been answer at all. If there are such glaring mistakes in following procedures of law being committed by the Tribunals, why did the bench also not call a review of the orders where person in question had been declared a foreigner? Does that particular order of declaring an Indian citizen to be a foreigner not a miscarriage of law?
The complete order can be read here:
A paradox?
As a report by the Scroll has correctly noted, this ruling has restored, encouraged, and even put a legal stamp on the mistrust that stems from a broader, albeit unfounded, belief in mainstream Assamese nationalist discourse that the National Register of Citizens identified far fewer “illegal Bangladeshis” than it ideally should have. In many respects, the ruling of the High Court reinforces the negative discourse surrounding the National Register of Citizens, a counting procedure that is inextricably connected to the Foreigners Tribunal system.
It is disappointing that, despite correctly pointing out a contradiction in the legal system, the Court may have done more harm than good in its attempts to find and address the arbitrariness of the Foreigners Tribunal system. Those who were deemed Indian citizens by the Tribunals will likely face another executive nightmare as a result of this order’s retroactive applicability. The court has undermined the principle of separation of powers and runs the risk of subjecting the entire tribunal system to the whims of the executive branch by requesting a disparate body, the Assam government, to use its discretion to review and implement the orders of the Foreigners Tribunals. It remains to see whether this judgment of the High Court will open the Pandora’s Box and lead to even more cases people in Assam, most of whom are underprivileged and impoverished, will be declared foreigners or a miraculous decrease in such number will be the result.
It has been pointed out in a report of The Telegraph, pursuant to the order of the High Court, the Assam government has been planning to offer a “crash course” for members of Foreigners Tribunals at the National Law University and Judicial Academy, Assam.
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