Case BriefsHigh Courts

Gauhati High Court: The Division Bench comprising of N. Kotiswar Singh and Somitra Saikia, JJ.,  heard the instant petition against the ex-parte order passed by the Foreigners Tribunal by which the petitioner was declared an illegal migrant of post-1971 stream. The Bench remarked,

“By virtue of citizenship, one becomes a member of a sovereign country and becomes entitled to various rights and privileges granted by law in the country and, as such, if any question arises about citizenship of a person…the same should be adjudicated as far as possible on the basis of merit and on hearing the person concerned.”

Though notice was served, according to the petitioner, upon receipt of notice from the Foreigners Tribunal, her son appeared on her behalf without her knowledge. But unfortunately, the petitioner’s son neglected to appear before the Tribunal on various
dates fixed by the Tribunal resulting in passing of the ex-parte order. The contention of the petitioner was that the Tribunal passed the order without hearing the petitioner which had deprived her of her citizenship.

The Bench opined that citizenship is one of the most important rights of a person. By virtue of citizenship, one becomes a member of a sovereign country and becomes entitled to various rights and privileges granted by law in the country and, as such, if any question arises about citizenship of a person, the same should be adjudicated on the basis of merit and on hearing the person concerned. In view of above, the impugned order was set aside and the matter was remanded to the Foreigners Tribunal for reconsideration of the issue as to whether the petitioner is a foreigner. Further, the petitioner was directed to ensure her presence before the aforesaid Foreigners Tribunal.

Additionally, after observing that the petitioner’s citizenship was under cloud as the petitioner had already been declared a foreigner, the petitioner was directed to appear before the Superintendent of Police (Border), within 15 days and furnish a bail bond of Rs.5000 with one local surety of the like amount. The authority concerned was directed to allow the petitioner to have remained on bail.

The Superintendent of Police (Border) was granted liberty to obtain necessary information and documentation along with biometric details as required under the rules from the petitioner for securing her presence. However, the Court imposed restriction on the petitioner from leaving the State without giving details of the place of destination and her place of stay to the Superintendent of Police.[Rahima Khatun v. Union of India, WP(C) No. 8284 of 2019, decided on 08-04-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. P. N. Goswami and Adv. D. Gogoi

For the Respondents: Sr. Adv. P. S. Bhattacharjee, Special Counsel J. Payeng, Adv. B. Das and Standing Counsel P. S. Lahkar

Case BriefsHigh Courts

Gauhati High Court:  The Division Bench of N. Kotiswar Singh and Manish Chaudhury, JJ., set aside the impugned order of the Foreign Tribunal whereby the Tribunal had declared the petitioner non-Indian on the ground of him having failed to prove his ancestral linkage with his father’s relatives.

Factual Matrix of the Case

The present petition had been filed challenging the order passed by the Foreigners’ Tribunal, whereby the petitioner was held to be an illegal migrant and consequently, was declared a foreigner under Section 2(a) of the Foreigners Act, 1946. According to the Tribunal, the proceedee-petitioner had failed to mention his links with the other persons mentioned in the voter’s list of 1970 and also links with his father and grandparents Nadu Miya and. Aymona were also held to be not proved.

Noticeably, the petitioner had mentioned the names of his grandparents whose names were reflected in the voter’s list of 1965 with the necessary details, viz., name of the village, house number, mouza, police station etc. However, in the voter’s list of
1970, the names of the grandparents of the petitioner were shown with similar descriptions but along with the names of the other voters.

Analysis and Observations by the Court

Contrary to the view held by the Tribunal, the Bench opined that the non-explanation of the linkage of the petitioner with others whose names were shown along with his grandparents in the voter’s list of 1970 did not affect the credibility or genuineness of the evidence. The fact that Harmuz Ali was the son of Nadu Mia was clearly established by the voters’ lists of 1970, 1971 and 1965. Since the State never questioned the authenticity or genuineness of the voters’ lists of 1965 and 1970 before the Tribunal, these documents had remained unrebutted.

The “fact in issue”, in the instant case was whether the petitioner could trace his ancestry to the said Nadu Miya (grandfather of the petitioner) through Harmuz Ali (father of the petitioner), as Nadu Miya was admittedly an Indian who had been casting his vote since 1966. And the fact in issue was not whether the petitioner had other relatives also.

Therefore, failure to disclose the names of all the members of the family could not weaken the petitioner’s case and render his evidence unreliable, nor reduce the credibility of his evidence, when there are other corroborating evidences. The Bench stated,

“There is no law nor dictum that if the proceedee does not disclose the names of all the other relatives…”

Whether Rules of Written Statement as prescribed in CPC would strictly apply in proceedings before the Foreign Tribunal?

Considering that no document, other than the notice was given to the petitioner while impugning his citizenship; the Bench opined that while “written statement” as understood under the Civil Procedure Code (CPC) is a defence put up by the defendant with reference to and in response to the specific averments and allegations made in the plaint; in the instant case notice was merely issued to the petitioner informing that he was an illegal entrant to the State, in the territory of Assam and India from the specified territory without any other facts and documents being furnished to him. Thus,

“The petitioner was totally in dark as to how he came to be considered to be a foreigner and not an Indian.”

Order 8 Rule 2 of CPC is that all the facts must be specifically pleaded, to avoid taking the opposite parties by surprise. However, in the proceeding under the Foreigners Tribunal, the onus had been squarely put on the petitioner to prove that he is not a foreigner but an Indian. If the petitioner introduces new facts to discharge his onus, it could not be said to take the State by surprise, as the petitioner was merely trying to prove his case and was not responding to any allegation, other than that he was a foreigner. Therefore, the principles contained in the CPC relating to the scope of written statement and limitations placed thereon cannot be strictly applied in the proceedings before the Tribunal.

On the Issue of Adverse Inference

On the issue that whether the withholding of the fact of petitioner’s father having siblings until examination-in-chief would lead to adverse inference; the Bench while relying on the judgment of Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, said that, production of less evidence could not necessarily lead to rejection of the claim of the petitioner nor would lead to drawing of any adverse inference. In fact,

“A proceedee must be afforded all the opportunities to prove his case and no hyper technical view should be taken to deny introducing new facts or document, so long as these are relevant and bolster the case of the proceedee.”

Findings and Decision

The Bench expressed disbelief on how the Tribunal could come to this conclusion that the petitioner could not establish his link with his father. Since, the voters’ lists of 1965, 1970 as well as subsequent voters list of 1989 onwards were found to be unrebutted which clearly show the linkage of the petitioner’s father, Harmuz Ali with the claimed grandfather, Nadu Miya.

Further, the Bench was of the view that though the Jamabandi and other revenue receipts, as relied on by the petitioner could not create the title, nevertheless, these were corroborating evidences to show that the petitioner’s father and his grandfather were in possession of certain land during the aforesaid period of 1966 to 1971. The Bench opined that even if these documents do not create title, these certainly indicate that the petitioner’s father and his grandfather were in possession of the certain property in Assam before 1971 which was corroborating evidences to show that the petitioner was a descendant of persons who were already living in Assam prior to 1971 and 1966.

The standard of proof in the discharge of the onus by a proceedee under Section 9 of the Foreigners Act is preponderance of probability as had been also reiterated in the Full Bench decision of this Court in State of Assam v. Moslem Mondal, 2013 (1) GLT 809. Therefore,

“What is important to be proved is that the parents and grandparents of the petitioner were residing during 1965 and 1970, which would rule out any allegation that they entered Assam after 01-01-1966 or after 25-03-1971.”

Hence, the fact in issue had been established without any doubt after the voter’s lists of 1965 and 1970 were proved, which corroborate the oral evidence of the petitioner and others. Further, after considering the transfer certificate of Higher Secondary School in favor of the petitioner’s father and admit card of the petitioner issued by the Board of Secondary Education, the Bench held that the documents clearly show the linkage of the petitioner with his father Harmuz Ali and grandfather, Nadu Miya and accordingly, it had been held that the petitioner was an Indian citizen and not a foreigner. Accordingly, the instant petition was disposed of with leaving the question of whether a proceedee before the Foreign Tribunal is entitled to more than mere notice open for consideration in an appropriate case. [Haidar Ali v. Union of India, 2021 SCC OnLine Gau 683, decided on 30-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court:

For the Petitioner: Adv. M. J. Quadir and Adv. K. Mira

For the Respondents: Adv. A. Gayan, CGC., SC A. Kalita, SC B. Das and SC L. Devi

Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ and S. Kumar, J., addressed the vital issue of citizenship with respect to its essentialities and other issues such as whether the State Election Commission is empowered to set aside the election of a person in light of her not being a citizen of India.

Primary Issue for consideration

Whether the appellant is a citizen of India or not?

Other Issues:

  1. Was the State Election Commission empowered to set aside the appellant’s election under Section 136(1) of the Bihar Panchayat Raj Act, 2006 on the ground of her not being an Indian citizen?
  2. Whether voluntarily relinquishing Citizenship of Nepal confers any right of Indian Citizenship upon the appellant?
  3. Can the appellant’s voter ID Card; PAN Card; Aadhaar Card; acquiring education or immovable property in India; having a Bank Account, function as proof of Indian Citizenship?
  4. Whether the appellant was disqualified from being elected to or function as Mukhiya of the Gram Panchayat in Bihar?
  5. Can the appellant’s status of Statelessness be remedied as per Indian Law?

The instant appeal arose from an order and judgment by which the appellant’s writ petition assailing the order of the State Election Commission was dismissed. Appellant’s election was set aside on the ground of disqualification contained under Section 136 1(a) of the Bihar Panchayat Raj Act, 2006.

Appellant was born and brought up in Nepal and after her marriage, she permanently started residing in India.

Issue of appellant’s nationality became the subject matter of challenge in the year 2018 after she was elected as a Mukhiya of Gram Panchayat.

Examination of Issues

ISSUE 1:

Court noted that the appellant herself acknowledged that she was born and brought up in Nepal and wasn’t an Indian Citizen under Sections 3 and 4 of the Citizenship Act, 1955.

Hence, the State Election Commission was empowered to set aside her election as Mukhiya.

Bench added that the issue is no longer res integra in view of the decision Supreme Court’s decision in Rajani Kumari v. State Election Commission, (2019) 4 PJLR 673.

ISSUE 2 and 4:

For the adjudication of issue, Article 10 and 11 are reproduced as under:

“10. Continuance of the rights of Citizenship.— Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.

11. Parliament to regulate the right of Citizenship by law.— Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of Citizenship and all other matters relating to Citizenship.”

Section 135 of the Panchayat Act makes it clear that every person whose name is entered in the voters’ list of any Panchayat constituency, unless disqualified under the Act or any other provisional law, shall be qualified to be elected as a member or office-bearer of the Panchayat.

Section 136 of the Panchayat Act commences with a non-obstante clause. The expression used is ‘notwithstanding anything contained in this Act’. If a person entails any one of the disqualifications also enumerated in the said Section, a person will entail disqualification.

For the post of a Mukhiya, the person stands disqualified if she/he is not a citizen of India.

Further, the expression ‘citizen of India’ is not defined under the Panchayat Act. The Constitution of India itself does not confer any right of Citizenship. Hence, the Citizenship Act enacted under Entry 17 of List I of 7th Schedule for acquisition and determination of India Citizenship is to be considered.

Only the Central Government is empowered to confer Citizenship upon the Foreign Nationals. Petitioner admitted that she has not applied for Citizenship under the Citizenship Act.

Adding to the above, Court also stated that the appellant’s case would fall under clause (c) of sub-section (1) of Section 5. She is married to a citizen of India and is ordinarily residing in India for the last seven years. But then, significantly and undisputedly, she never sought Citizenship by way of registration.

An oath of allegiance is necessarily required to be taken by the appellant. Hence, by her actions and conduct, she precluded herself from being considered as a citizen under the Citizenship Act.

Mere relinquishment of original Citizenship cannot be perceived as an intent of seeking Indian Citizenship.

The Citizenship Act does not provide for a scenario where a person residing in India, upon relinquishing her/his original Citizenship is automatically considered to be a citizen of India.

Hence, in Court’s opinion, the appellant failed to follow the procedure as set out in the Citizenship Act.

ISSUE 3:

Whether documents produced by the appellant can form the basis of conferring Citizenship upon her or not. Court stated that in view of the discussion, it cannot be in the affirmative.

In the Supreme Court’s decision of Sarbanda Sonowal v. Union of India, (2005) 5 SCC 665, laid down certain principles in dealing with cases of illegal migrants.

“Burden of proof would be upon the proceedee as he would possess the necessary documents to show that he is a citizen not only within the meaning of the provisions of the Constitution of India but also within the provisions of the Citizenship Act.”

Further, on reading the Representation of the People Act, 1950 it is clear that the name in the electoral roll (voter list)  would not be proof of the Citizenship of India.

“Mere registration of a person’s name in the voter list, ipso facto, does not confer Citizenship.”

The only exception to the above was Supreme Court’s decision in Lal Babu Hussein v. Electoral Registration Officer, (1995) 3 SCC 100, but then, that was peculiar to the attending facts and circumstances, where action for ‘en-masse’ deletion of names of lakhs of voters, who already exercised their right of franchise, was influenced by extraneous consideration and without any proper enquiry.

Purpose of the PAN card is to facilitate the payment of taxes to the Indian State, which foreigners may also be required to pay.

This Court in Narendra Narayan Das v. State of Bihar, AIR 2008 Pat 124, while examining the issue of a citizen of Nepal, held that Citizenship of a foreigner is determined under the Municipal laws of the parent country and not the Indian Citizenship Act.

The eligibility criteria for obtaining an Aadhaar Card is residency in India for a period of 182 days or more, not citizenship.

Section 9 of the Aadhaar Act, 2016 clearly states that an Aadhaar number or authentication thereof shall not by itself confer any right of or be proof of Citizenship or domicile of the Aadhaar number holder.

Hence, the appellant cannot rely on her PAN card and Aadhaar Card as proof of Indian Citizenship.

Further, Bench also held that, mutating name in the register is only proof of ownership of property and is silent on the status of Citizenship of person to whom property is transferred.

Supreme Court in Hari Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233, held that even a certificate of registration under Section 5(1)(c) of the Citizenship Act may be challenged in an election petition under Section 82(1) (a) of the Representation of the People Act, 1951.

Hence issue 3 was not answered in the appellant’s favour.

ISSUE 5:

Appellant had surrendered her Nepali Citizenship in 2016 but failure to meet the requirements for Indian Citizenship by registration coupled her surrender of Nepali Citizenship, left her citizenship status in limbo.

The facts of the present case represent the appellant’s intention to make India her permanent home/domicile.

There is an additional bureaucratic hurdle in registering herself under the Citizenship Act – the documents to be attached for an application under Section 5, per Form III under Rule 5(1)(a) of the Citizenship Rules, 2009, include a copy of valid Foreign Passport and a copy of the valid Residential permit.

To re-obtain her Nepalese Citizenship, she will have to return to “reside” in Nepal before applying for Citizenship, away from her immediate family in India.

Hence, in view of the above, the Court held that it is not permitted to direct the Central Government to grant the petitioner Indian Citizenship as that would impinge upon the Executive’s functions.

Complications in legal status

Parting with the decision, and on observing the peculiar situation of the petitioner and in order to prevent statelessness, Court directed that upon receipt of petitioner’s application, the appropriate authority may consider her application expeditiously.

Gist of answers for the issues raised

  • State Election Commission was empowered to set aside the petitioner’s election on the specified ground under Section 136(1) of the Panchayat Act of her not being an Indian citizen.
  • Mere relinquishment of Citizenship of Nepal does not confer upon any right of Indian Citizenship.
  • Mere possession of a Pan Card; a Voter ID Card; or an Aadhar Card cannot be said to be proof of Indian Citizenship.

In view of the above, the present appeal was disposed of.[Kiran Gupta v. State Election Commission, 2020 SCC OnLine Pat 1641, decided on 12-10-2020]


Counsel for the Appellant: Advocates, Rajes Singh, Ranvijay Narain Singh, Jitendra Singh and Ranjeet Choubey.

Counsels for the State Election Commission: Amit Shrivastava and Girish Pandey, Advocates.

For the State: Lalit Kishore, A.G. and Pawan Kumar AC to AG.

Hot Off The PressNews

Court of Appeals (UK): Shamima Begum who left east London in order to join ISIS, has won the legal battle to be allowed to return home to fight the government’s decision to revoke her UK citizenship. Begum left Bethnal Green in London with two teenage friends in 2015 to join Isis, when the terror group was at its height. Four years later, after its territorial defeat, she was found in a Syrian refugee camp, nine months pregnant. Her citizenship was revoked by the Home Office on grounds of security. The Court of Appeals partially overturned an earlier ruling by the Special Immigration Appeals Commission which held that she had not been illegally rendered Stateless while she was in Syria because she was entitled to Bangladeshi citizenship.

The then Home Secretary, Sajid Javid had vehemently argued in the favour of Shamima’s citizenship revocation on the ground that she had the right to become a Bangladeshi citizen, the birth country of her parents. The British security sources have argued time and again that Shamima Begum represents a security risk, and that she was a member of Isis’s morality police: al-Hisba, during which time she had a reputation for strictness and used to carry a Kalashnikov rifle on her person.

Shamima Begum’s lawyers contended that she did not have a fair opportunity to give her side of the story and stripping of her citizenship without a chance to clear her name, is not justice.

Perusing her contentions, Lord Justice Flaux held that, “Notwithstanding the national security concerns about Ms Begum, I have reached the firm conclusion that given that the only way in which she can have a fair and effective appeal is to be permitted to come into the United Kingdom to pursue her appeal, fairness and justice must, on the facts of this case, outweigh the national security concerns.” 


 Source: The Guardian 

                                                                                                                                                                                  

Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharya, J., while addressing a petition regarding the citizenship of a person, held that,

“An application has to be made to acquire citizenship under Section 5(1)(c) of the Citizenship Act, 1955 mandatorily in Form III as given in Rule 5(1) of Citizenship Rules, 2009.”

Petitioner states its grievance that he has been denied citizenship of India since he was not able to file an application under Section 5(1) (c) of the Citizenship Act, 1955 as the online application that has to be filed now requires a copy of the passport as a mandatory requirement for such application.

Counsel for the Petitioner, submitted that the petitioner was a Pakhtoon citizen and due to political turmoil in the said State he had to migrate to India with his father. Petitioner was a 5-year-old child at that time. Under such circumstances, the petitioner could not have any opportunity of having a valid passport since they were refugees under distress.

Counsel for the State submitted that in view of the petitioner not complying with the mandatory requirement of submitting a copy of the passport. State Government cannot, under the law forward such an application to the Union Government.

Court’s Analysis & Decision

Petitioner has to make an application to acquire citizenship under Section 5(1)(c) of the Citizenship Act mandatorily in Form III as given in Rule 5(1) of 2009 Rules. On perusal of Form III, Court stated that clause 9 of the same requires passport particulars of the applicant and documents to be attached with application include a valid foreign passport.

Further, the Court noted that,

A compliance of Rule 5(1)(a), although contemplates that an application shall not be entertained unless the application is made in Form III, such provision ipso facto does not make the availability of a passport a mandatory requirement, since the Form given with the Rules or the Rules themselves cannot override the provision of the statute itself, under which the said Rules are framed, which does not stipulate such a mandate on the applicants for citizenship under Section 5 (1)(c) of the 1955 Act mandatorily to carry a passport.

 Thus, the Court held that, it is nowhere indicated in Form III that particulars regarding passport of the petitioners have to be furnished mandatorily along with a copy of a valid foreign passport. The Bench also added that, there has to be a relaxation in such requirement in the case the petitioner is able to satisfy the appropriate authorities the reasons for non availability of such passport.

Hence, the requirement of having a passport has to be read as optional in Form III of the Citizenship Rules, 2009.

Further, the Bench made an observation that,

“…despite the provision of making applications online, a provision has to be made for persons who do not have all the particulars of their passport, which is read as optional, to file applications manually, which are to be treated as valid applications under Rule 5 of the Citizenship Rules, 2009, alternatively to amend the necessary software so that the online applications can be presented with or without passports, in the latter case furnishing detailed reasons as to non-furnishing of passports.”

[Bismillah Khan v. Union of India, 2020 SCC OnLine Cal 540, decided on 24-02-2020]

Hot Off The PressNews

Supreme Court: A Bench headed by CJI SA Bobde has issued a notice to the Central government on a petition claiming that around 2,000 transgenders were excluded from the National Register of Citizens (NRC) list in Assam.

The petition, filed by Assam’s first transgender judge Swati Bidhan, said that NRC was not inclusive of the transgenders and forced them to accept male or female as their gender.

The plea said that most transgenders were abandoned and they do not have documents from before 1971, which is required for the NRC. The applications did not contain ‘others’ as a gender category, the plea added. The Transgender Persons (Protection of Rights) Bill, 2019, which seeks to provide a mechanism for social, economic and educational empowerment of transgenders, was passed by the Parliament of India on November 26 and received the President’s assent on December 5, 2019.

The Transgender Persons (Protection of Rights) Act, 2019 defines the expression “transgender person”, prohibits discrimination against them, confers the right to self-perceived gender identity and provide that no establishment shall discriminate against them in matters of employment, recruitment, promotion and other related issues.

(Source: ANI)

Case BriefsForeign Courts

Supreme Court of Liberia: A Full Bench of Francis S Korkpor, Jamesetta H Wolokolie and Sie-A-Nyene G Yuoh, JJ. allowed a petition of a petitioner who wasn’t granted travel permit by Liberia government as per Aliens and Nationality law which was termed by them, to be violative of certain sections of the constitution of Liberia.

In this case, the petitioner was a native of Liberia who lived in the USA and his application for getting a travel permit was rejected by the Liberian Embassy in Washington D.C., USA. The Embassy, in turn, asked him to apply for a non-immigrant visa as his original application was turned down as it couldn’t fulfill the requirements mentioned in Section 22.1 and Section 22.2 of Aliens and Nationality law.

Counsellors Seward Montgomery Cooper and Frank Musah Dean jr. appeared for petitioner and pleaded about his grievances.

The Court adjudged Section 22.2 of the Aliens and Nationality Law to be in direct conflict with requirements of Article 20(a) of the Liberian Constitution which calls for the protection of life, liberty, the security of person, property and his privilege.

Also, the government’s policy of taking away citizenship solely on account of a person’s performance of acts or fulfillment of conditions mentioned in Article 22.1 of any proceedings, nullifying or cancelling citizenship in violation of due process clause under Article 20(a) of 1986 constitution was declared null and void.

In view thereof, Court found the petitioner to have been directly affected by government policy and his Liberian citizenship has suffered due to Section 22.1 and Section 22.2 of Aliens and Nationality Law and thus allowed the petition.[Alvin Teage Jalloh v. Olubankie King-Akerele, A.D. 2019, decided on 23-12-2019]

Hot Off The PressNews

Supreme Court: The Court has ordered the transfer of Assam NRC coordinator, Prateek Hajela, to Madhya Pradesh on deputation. The bench headed by Chief Justice of India (CJI) Ranjan Gogoi, however, did not specify the reason, behind transferring Hajela to Madhya Pradesh.

After the final list of National Register of Citizens was published in Assam, several complaints were filed against Hajela alleging discrepancies in the list. On August 31, when the final list was published, the NRC State Coordinator Prateek Hajela had announced,

“A total of 3,11,21,004 persons are found eligible for inclusion in final NRC, leaving out 19,06,657 persons, including those who did not submit their claims,”

.The list is aimed at segregating Indian citizens living in Assam from those who had illegally entered the state from Bangladesh.

(Source: ANI)

Case BriefsSupreme Court

Supreme Court: The bench of Ranjan Gogoi, CJ and RF Nariman, J has refused to re-open the National Register of Citizens (NRC) process in Assam.

The Court elaborately discussed the NRC exercise as below:

  • Section 6A of the Act which was inserted with effect from 7th December, 1985 by the Citizenship (Amendment) Act, 1985 (Act No.65 of 1985), carves out a special category of citizens in the State of Assam.
  • In view of the special category of citizens so created a special procedure came to be prescribed by Rule 4A of the 2003 Rules read with the Schedule thereto in the matter of preparation of National Register of Indian Citizens in the State of Assam whereby the claims of all persons (including persons born in India) for inclusion in the NRC were to be related to the entries 19 either in the National Register of Citizens 1951 or any of the electoral rolls prepared upto the midnight of the 24th day of March,1971 or on the basis of any of the additional documents referred to earlier.
  • The above said procedure was necessitated on account of a large number of persons who acquired citizenship by virtue of Section 6A of the Act without being actually born within the territories of India. Yet, as Section 6A of the Act confers citizenship on such person(s), a special procedure, indicated above, has to be devised for inclusion in the NRC in the State of Assam. This is what was agreed upon under the Assam Accord which led to the introduction of Section 6A in the Citizenship Act, 1955 with effect from 7th December, 1985.

Considering the abovementioned procedure, the Court said,

“The entire NRC exercise having been performed on the aforesaid basis, the same cannot be now ordered to be reopened by initiation of a fresh exercise on certain other parameters that have been suggested on behalf of the intervenors/applicants on the strength of the provisions of Section 3(1)(a) of the Act.”

On the issue of the maintenance of security of the NRC data, the bench directed the Central Government to enact an appropriate regime for on lines similar to the security regime provided for AADHAR data. Only thereafter, the list of inclusions and exclusions shall be made available to the State Government, Central Government and Registrar General of India.

The Court further directed,

  • only hard-copies of the supplementary list of inclusions be published at the NRC Seva Centers, Circle Offices and Offices of the District Magistrates of the State.
  • the list of exclusions be published on 31st August, 2019 shall be published only on on-line and shall be family-wise.

[Assam Public Works v. Union of India, 2019 SCC OnLine SC 1025, decided on 13.08.2019]

Case BriefsSupreme Court

Supreme Court: Deciding the conflict between sub-paragraph (2) to paragraph 3 and paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, the 3-judge vacation bench of Ranjan Gogoi, CJ and Deepak Gupta and Sanjiv Khanna, JJ, held,

“Paragraph 8 does not envisage and provide for a second round of litigation before the same authority i.e. the Foreigners Tribunal constituted under the 1964 Order on and after preparation of the final list. Provisions of paragraph 8 of the Schedule to the 2003 Rules will apply when there has not been an earlier adjudication and decision by the Foreigners Tribunal.”


  • Paragraph 3 deals with the preparation of consolidated list of original inhabitants of Assam, their children and descendants if their citizenship is ascertained beyond reasonable doubt and to the satisfaction of the Registering Authority.
  • Paragraph 8 provides for a right of appeal to the person who had filed objections and is not satisfied with the outcome of the decision under the final list published under paragraph 7. Such persons may prefer an appeal before the designated Tribunal constituted under the 1964 Order within a period of sixty days and on disposal of appeal by the Tribunal, such persons can accordingly be included or deleted from the National Register of Indian Citizens in the State of Assam.
  • Paragraph 8, therefore, makes the Foreigners Tribunal under the 1964 Order as the appellate forum to decide claims and objections under paragraph 7 of the Schedule.

The Court held that the person concerned should be permitted to double-dip and be entitled to a second round of litigation before the Foreigners Tribunal notwithstanding the earlier opinion expressed by the Foreigners Tribunal is far-fetched, and completely unacceptable.

It said that where the issue and question of nationality has already been determined under the 1964 Order, an appeal would not be maintainable under paragraph 8 of the Schedule to the 2003 Rules. The determination would be final and binding on the Registering Authority under the Schedule and the Local Registrar.

The Court also held,

“Any order passed in case of close family members, subsequent to adjudication order determining the citizenship status of a person, would necessarily be a material evidence which can be duly taken note of and considered while deciding a writ petition or a review application.”

It was held that in a given case, the person aggrieved would have liberty to invoke writ jurisdiction, or if necessary, review jurisdiction before the High Court or this Court to ensure that no injustice is done.

[Abdul Kuddus v. Union of India, 2019 SCC OnLine SC 733, decided on 17.05.2019]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Sanjiv Khanna, JJ dismissed a plea seeking direction to the Centre and the Election Commission to debar Congress President Rahul Gandhi from contesting Lok Sabha elections till the issue of his citizenship is decided.

The Court rejected the contention of the petitioners, who said that in a form along with the annual data of a UK-based company in 2005-06, it was allegedly mentioned that Rahul Gandhi is a British citizen. It said,

“If some company in some form mentions his nationality as British, does he become a British citizen.”

(Source: PTI)

Conference/Seminars/LecturesLaw School News

Indian Journal of Law and Public Policy & Ayyubi Law Practices, Alumni Association of Jamia Millia Islamia; New Delhi conducted a National Conference on Identity, Citizenship, and National Register of Citizens, Assam on February 2nd, 2019 at Auditorium, Faculty of Engineering and Technology.
The event was held in two sessions:
The first session dealt with National Register of Citizens, Legal Framework and Implementation and D-Voters: Abundance Precaution or Legal Persecution and was joined by very esteemed panelists, namely:
  1. Prof. Anupama Roy (Centre for Political Studies, School of Social Sciences-II, Jawaharlal Nehru University)
  2. Prof. Sanjoy Hazarika (International Director, Commonwealth Human Rights Initiative)
  3. Mr. Venkitesh Ramakrishnan (Chief of Bureau, The Frontline)
  4. Dr. Ghulam Yazdani (Academic Advisor, IJLPP)
  5. Mr. Fuzail Ayyubi (Advocate on Record, Supreme Court of India)
The panelist heard a number of research papers which were presented by students and independent writers all over India.
Professor Anupama Roy addressed the gathering by stating that “Statelessness is an issue which we need to look at whether our Constitution allows it within the ambit of Constitutional morality”.
The second session dealt with Citizenship Laws in India: Leaning towards Political Rhetoric or Constitutional Morality and Post NRC Regime and Issues regarding Illegal Migrants and Detention Camps. The session was joined by esteemed panelists, namely:
  1. Prof. Mahendra P. Lama (Professor of South Asian Economies, School of International Studies, Jawaharlal Nehru University)
  2. Mr. Mohan Katarki (Advocate, Supreme Court of India)
  3. Ms. Jayshree Satpute (Co-founder, Nazdeek and Human Rights Lawyer)
  4. Mr. Mohammad Nizam Pasha (Advocate, Supreme Court of India)

On several papers, Prof. Lama commented, “The entire discourse we’ve lost the major discourse of how, close to 40 lakh people are illegal and as to who brought them and the role played by paramilitary forces in this. This issue should be looked at from an inter-disciplinary aspect, for instance, the impact on relations of India with its neighbors due to this issue, the shape of the borderline to be considered, etc. Further, it becomes necessary to go beyond legal interpretations and to examine this issue in the context of public interest.”
The valedictory speech was attended by Mr. Salman Khurshid (Advocate, Supreme Court of India) as a Chief Guest. He spoke about the big problem of lack of communication existing in Indian politics with the Congress Party in Assam being unaware of the issue and having never been consulted on this issue. Further, he pointed out that the apex court is incompetent to find a solution to this issue and that it is doubtful whether the people involved in the entire NRC exercise have been given the appropriate training to conduct this exercise. NRC has no mitigating factors and no law can be without its mitigating factors.
For more information, please visit: http://ijlpp.com/conference-proceedings/
Case BriefsForeign Courts

Supreme Court of Pakistan: The Seven-Judge Bench of Mian Saqib Nisar, HCJ and Gulzar Ahmed, Azmat Saeed, Mushir Alam, Umar Ata Bandial, Ijaz Ul Ahsan and Mazhar Alam Khan Miankhel, JJ. was hearing a suo motu case pertaining to dual nationality of civil servants and officials of autonomous bodies.

Article 63(1)(c) of the Constitution of Islamic Republic of Pakistan states that a person is not eligible to be elected as a Member of Parliament if “he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State”. Section 14(1) of the Pakistan Citizenship Act, 1951 does not permit dual citizenship, as a general principle. However, Section 14(3) of the said Act extends the privilege of dual nationality to persons acquiring citizenship of, inter alia, USA, Canada and the United Kingdom countries.

In view of the exception created under Section 14(3) of the Act, the question before Court was as to the interpretation of the word “or’ in Article 63(1)(c).

The Court affirmed the dictum in Syed Mehmood Akhtar Naqvi v. Federation of Pakistan, 2012 SCC OnLine Pak SC 59 and held that the intention of Constitution framers was to use the word “or” in Article 63(1)(c) disjunctively. This was done to cater for a separate distinct situation where a Pakistani citizen acquires a dual nationality of a foreign State under Section 14(3) of the Act, without loss of his Pakistani citizenship in terms of Section 14(1) of the Act. An interpretation to the contrary would render the phrase “acquires the citizenship of a foreign State” under Article 63(1)(c) of the Constitution redundant.

In view of the above, the Court examined the documents submitted by newly elected senators who were alleged of having dual nationality; and disqualified two of them as members of the Senate.[Dual Nationality of Parliamentarians, In re, 2018 SCC OnLine Pak SC 17, Order dated 17-10-2018]

Call For PapersCase BriefsLaw School News

The National Law School of India Review (NLSIR) is now accepting submissions for its upcoming issue – Volume 31(2). Volume 31(2) will a special issue of the NLSIR and will follow the theme of the XII NLSIR Symposium, i.e., ‘Sovereign-Rights Dichotomy: Exploring Issues of Migration, Refuge and Citizenship’ in the context of India.

Since, this is a special issue of the journal, papers relevant to the above theme, i.e., those engaging with the issues of Migration, Refuge or Citizenship will be considered only. Please send in your submissions before March 31, 2019 in order for them to be considered for our special issue, i.e., Vol. 31(2)

About NLSIR

The NLSIR is the flagship law review of the National Law School of India University, Bangalore, India. The NLSIR is a bi-annual, student edited, peer-reviewed law journal providing incisive legal scholarship on issues that are at the forefront of contemporary legal discourse. In the past 30 years, the NLSIR has regularly featured articles authored by judges of the Indian Supreme Court, senior counsels practicing at the Indian bar, and several renowned academics from national and foreign universities.

The most recent volume of the NLSIR, Vol. 30 will feature contributions by Professor Jonathan Herring, Vice Dean and Professor of law, Faculty of Law, University of Oxford, and Professor Steven Freeland, the Dean of the School of Law and Professor of International Law at Western Sydney University, Australia, among several others. Moreover, NLSIR has the unique distinction of being the only Indian student-run law journal to be cited twice by the Supreme Court of India, with the latest one in the landmark judgment in Justice K.S. Puttaswamy v. Union of India. NLSIR has also recently been cited in Justice R. S. Bachawat’s Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.

Submission Categories:

Submissions are accepted for the following categories:

  1. Long Articles:Between 5,000 and 10,000 words. Papers in this category are expected to engage with the theme and literature comprehensively, and offer an innovative reassessment of the current understanding of that theme. Purely theoretical pieces are also welcome.
  2. Essays:Between 3,000 and 5,000 words. Essays are far more concise in scope. These papers usually deal with a very specific issue and argue that the issue must be conceptualized differently. They are more engaging and make a more easily identifiable, concrete argument.
  3. Case Notes and Legislative Comments:Between 1,500 and 2,500 words. This is an analysis of any contemporary judicial pronouncement or a new piece of legislation whether in India or elsewhere. The note must identify and examine the line of cases in which the decision in question came about and comment on implications for the evolution of that branch of law. In case of legislative comment, the note must analyze the objective of the legislation and the legal impact the same is expected to have.

All word limits are exclusive of footnotes. The journal is flexible regarding the word count depending on the quality of the submission. Pieces in any of the above categories with relevance to India or Indian law are particularly welcome. This, however, is not a pre-requisite.

Formatting and Citation Guidelines

The body of the manuscript should be in Times New Roman, font size 12 with double linespacing. The footnotes should be in Times New Roman, font size 10 with single line spacing.

The manuscript should contain only footnotes (and not end notes) as a method of citation. Citations must conform to the Bluebook (20th edn.) style of citation.

Authors are required to adhere to the NLSIR Style Guide which can be found here.

How to submit?

The NLSIR only accepts electronic submissions. Submissions may be emailed to mail.nlsir@gmail.com under the subject heading “31(2) NLSIR – Submissions.” All submissions must contain the following:

  1. The manuscript in .doc or .docx format. The manuscript should not contain the name of the author or his/ her institutional affiliation or any other identification mark.
  2. A cover letter containing the name of the author, professional information, the title of the manuscript, and contact information.
  3. All manuscripts must also contain an abstract of not more than 150 words.

NLSIR shall shortly release a call for papers for Volume 32(1). This volume will be a general issue and papers on any contemporary theme with relevance to India or Indian law will be welcome.

More Information

For more information on NLSIR, please log on to www.nlsir.com.

Subscribe to the NLSIR

You can subscribe to the NLSIR here.

Warm regards,

Sharan A. Bhavnani

Editor-in-Chief, National Law School of India Review

Case BriefsForeign Courts

High Court of South Africa, Western Cape Division: This application was brought before N.P. Boqwana, J., seeking an order to declare DPB as a Citizen by Birth of South Africa and to issue an unabridged electronic birth certificate in terms of Section 9 of the Births and Deaths Registration Act, 1992 by respondent.

Facts of the case were that the two applicants who had filed this application were parents of DPB, holding South African permanent residence permits. DPB had a handwritten birth certificate which in practice was given to a child whose details were not included in the National Population Register. The grievance of the applicant was that the birth certificate did not contain any identity number. It is to be noted that the issue revolved around interpretation of Section 2 of the South African Citizenship Act, 1995 which stated the conditions under which a person would be considered a citizen of South Africa by birth before its amendment was enforced in 2013.

Respondents accordingly in the answering affidavit held the view that DPB was not a South African citizen, as contemplated by the old Section 2(1)(b) of the Citizenship Act read with Section 2(2).  After Court interpreted the old provision to be in favour of applicants, respondent argued that amended provision was retrospectively applicable to DPB according to which DPB would not be a citizen of South Africa.

Court was of the view that if amended provision is made applicable in the instant application then DPB would not be eligible to be a South African citizen by birth due to the fact that his parents were not a South African citizen at the time of his birth. But Court viewed the old provision to be applicable as a person born in South Africa whose parents have been lawfully admitted to the Republic for permanent residence ought to acquire citizenship by birth. On the question of retrospectivity of provision Court did not accept its applicability. Therefore, Court declared DPB to be South African citizen by birth and directed respondents to grant necessary documentation, birth certificate, issuance of unabridged electronic birth certificate and registration of DPB as citizen expeditiously. [FB v. Minister of Home Affairs, 2018 SCC OnLine ZAWCHC 1, dated 12-11-2018]

Case BriefsSupreme Court

Supreme Court: In the issue relating to admissibility of the certificate issued by Gram Panchayat Secretary as a proof of citizenship, the bench of Ranjan Gogoi and RF Nariman, JJ held that the said document can be used to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed after it clears a 2-step verification process. The steps include:

  • authenticity of the certificate itself.
  • the authenticity of the contents thereof.

The Court explained:

“The latter process of verification is bound to be an exhaustive process in the course of which the source of information of the facts and all other details recorded in the certificate will be ascertained after giving an opportunity to the holder of the certificate.”

The Court was hearing a batch of appeals against the order of the Gauhati High Court had held the Gram Panchayat certificate, submitted under ‘illustrative list of documents admissible’ as a supporting document, to be invalid in law.

Noticing that the Gram Panchayat Certificate merely acknowledges the shifting of residence of a married woman from one village to another, the Court made it clear that the said certificate by itself and by no means establishes any claim of citizenship of the holder of the certificate but will only its holder to establish a link between the holder and the person from whom legacy is claimed.

The Court, however, said:

“If the document and its contents is to be subjected to a thorough search and probe we do not see why the said certificate should have been interdicted by the High Court, particularly, in the context of the facts surrounding the enumeration and inclusion of the documents mentioned in the illustrative list of documents, as noticed above.”

Stating that the said document can in no manner be considered a ‘private document’, the Court held that Gram Panchayat Certificate can, however, be acted upon only to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed. It was made clear that the certificate will be put to such limited use only if the contents of the certificate are found to be established on due and proper enquiry and verification. [Rupajan Begum v. Union of India, 2017 SCC OnLine SC 1411, decided on 05.12.2017]

Case BriefsHigh Courts

Meghalaya High Court: While considering three petitions addressing the issue wherein the petitioners (they being children of Tibetan parents and born in India on or after 26.01.1950 and before 01.07.1987) were denied the status as citizens of India under the Citizenship Act, 1955, the Division Bench of Dinesh Maheshwari, C.J., and Ved Prakash Vaish, J., held that, on interpreting an unambiguous provision such as Section 3 of the Citizenship Act, 1955, the petitioners are Indian citizens in every respect and thus are entitled to all benefits and privileges available to the Indian citizens.

The three petitions which were addressed jointly by the Court, stated that the petitioners are citizens of India by virtue of Section 3 (1) (a) of the Citizenship Act, 1955, but they were denied the status of citizens and the rights attached therewith by the Union of India and the State of Meghalaya without any justification and reason. It was further contended that they were being compelled by the authorities to carry registration certificate as refugees. The respondents however contended that if the petitioners are having a claim of citizenship, then they need to apply to the authorities concerned under Section 3 read with Section 9 of the Citizenship Act, 1955 and the requisite declaration in their favour could be made only after due enquiry. The respondents claimed that the petitioners have furnished false information related to their birth and that they obtained the registration in the Electoral Rolls by suppressing the fact that they were registered Tibetan refugees and were not holding the citizenship certificate.

Perusing the facts of the case and the clarity of Section 3 (1)(a) of the Citizenship Act, 1955, the Court outright observed that the respondents were unjustified in denying the rights to the petitioners as citizens of India though such rights flow directly and unfailingly by the operation of the plain provisions of law. Moreover each of the petitioners was born within the cutoff year as provided by the law. Referring to the decisions of the Delhi High Court and Karnataka High Court in Namgyal Dolkar v. Government of India, 2010 SCC OnLine Del 4548 and Tenzin Choephag Ling Rinpoche v. Union of India, 2013 SCC OnLine Kar 5932 respectively, the Court stated that the plain reading of unambiguous provisions of law, as contained in Section 3 of the 1955 Act, leaves nothing to doubt and, “any decision by any Ministry cannot override the plain provisions of law nor any correspondence or any communication could do so.” [Tenzing Choden Sherpa v. Union of India, 2017 SCC OnLine Megh 35, decided on 15.02.2017]

 

Case BriefsHigh Courts

Calcutta High Court: While deciding a case where it was contended by the petitioner that Aadhar card was proof of his citizenship, the Single Bench of Joymalya Bagchi, J. held that in accordance with Section 9 of the Aadhar Act, the Aadhaar card by itself shall not confer any right of  proof of citizenship or domicile in respect of the holder thereto.

It was submitted by the petioner that aadhar card was submitted to him in view of his long residence in the country. It was argued by the State that relying on the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016  issuance of aadhar card cannot be treated as a proof of citizenship . The Court reaffirming the State’s view held that under Section 9 of said Act,  Adhaar Card by itself shall not confer any right of citizenship to petitioner.

Apart from this the petitioner also placed reliance of his claim of his citizenship on the residence certificate issued by a representative of a local body. The Court also did away with this claim by holding the letter issued by the representative of the local body as to the residence of the petitioner also does not, ipso facto, confer citizenship on the petitioner. [In Re, Rani Mistri, 2016 SCC OnLine Cal 8283, decided on 30.11.2016]

Foreign LegislationLegislation Updates

Citizenship (Amendment) Bill, 2015 was introduced in Lok Sabha on 27-02-2015. The objective of the Bill is to further amend the Citizenship Act, 1955. Salient features of the Bill are as follows:

  • Substitutes the words “overseas citizen of India” in the Citizenship Act, 1955 with that of “overseas citizen of India Cardholder” and provides a new definition thereto
  • Substitutes the words “has been residing in India for one year” with that of “is ordinarily resident in India for twelve months”
  • Inserts Section 5 (1 A) which provides that the Central Government, if it is satisfied that special circumstances exists, may after recording the circumstances in writing, relax the period of twelve months (mentioned above) upto a maximum of thirty days which may be in different breaks
  • Substitutes Sections 7A, 7B, 7C and 7 D of the Citizenship Act to provide for-

Ø  registration of Overseas Citizen of India Cardholder and also that the Persons of Indian Origin Cardholders shall be deemed to be Overseas Citizen of India Cardholders;

Ø  conferment of rights on Overseas Citizen of India Cardholder;

Ø  renunciation of Overseas Citizen of India Card;

Ø  cancellation of registration as Overseas Citizen of India Cardholder.

  • Repeals the Citizenship (Amendment) Ordinance, 2015.

-Lok Sabha

Legislation UpdatesStatutes/Bills/Ordinances

On 06-01-2015, the President of India promulgated the Citizenship (Amendment) Ordinance, 2015. The objective of the Ordinance is to amend the Indian Citizenship Act, 1955 with immediate effect. The Ordinance provides for the following amendments:

  • To relax the mandatory provision of one year continuous stay in India for Indian Citizenship, with that of a maximum thirty days (which may be in different breaks), if the Central Government is satisfied that special circumstances exist and after recording such circumstances in writing.
  • To enable for registration as Overseas Citizen of India (OCI) by a minor, whose parents are Indian Citizens.
  • To enable for registration as Overseas Citizen of India (OCI) by a child or a grand-child or a great grandchild of an Indian citizen.
  • To enable for registration as Overseas Citizen of India (OCI) by such spouse of a citizen of India or spouse of an OCI registered under Section 7A and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the presentation of the application.
  • In respect of existing PIO card holders, the Central Government may specify a particular date from which all existing PIO card holders will be deemed to be OCI card holders.

 

-Ministry of Home Affairs