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

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Supreme Court: A bench headed by CJ SA Bobde has directed Delhi High Court to hear on Friday the PIL filed by Delhi violence survivors seeking registration of FIR against political leaders over their hate speeches, which allegedly led to the riots in the national capital. The Court also directed the High Court to hear on Friday other connected matter on the issue, which was adjourned till April, as an adjournment of the matters for a month was not justifiable and asked it to finish hearing in an expeditious manner.

Taking up the High Court, CJI Bobde said,

“Their prayer to hear the matter on time is justified. In riots, violence cannot be curbed by courts. But just because there is no violence it does not mean that courts can give such long adjournments.”

The Court also sought the names of political leaders who could talk to people to bring peace in the region. The top court also slated to hear on Friday the matter related to the speech given by petitioner Harsh Mander, in which he allegedly said that he doesn’t have faith in the judiciary, and sought a transcript of the video of the incident.

Solicitor General Tushar Mehta mentioned the alleged video of Mander saying he is seen to have called on the people of India to streets for “real justice” and expressed no faith in the courts. Stating that he will only hear directly affected party as of now, CJI said,

“If this is what he (Mander) feels about the court then we have to decide how to deal…,”

Advocate Karuna Nandy, appearing for Mander, said that his client did not make such a statement.

Senior advocate Colin Gonsalves, who is representing the riot survivors, said that local BJP leader Kapil Mishra had in January made similar statements but no police action was taken against him. Gonsalves said that while the protests caused the disruption, no violence took place, and claimed that Mishra’s statement led to the violence as “Goli Maaro” slogans were raised by leaders.

The court asked Tushar Mehta if the situation was now conducive for filing FIRs, to which he responded saying that registration of FIRs was an exclusive prerogative of the police and added that law enforcement authorities have to take a call on the matter. Mehta said that so far, 468 FIRs have been registered in connection with the violence.

“There are speeches from both sides and if we start registering FIRs against the leaders of the communities, things may aggravate. We leave it to the authorities. The government has not said it will not file FIRs, but that it will be done when time is conducive,”

CJI Bobde said that the bench has some experience of riots adding that sometimes when leaders are arrested, the riots flare-up.

“You know what happened in the Bombay riots… When the Shaka Pramukhs were arrested and locked up, the riots flared up. Bombay riots were worse than this,”

This comes after at least 47 people including IB officer Ankit Sharma and Police Head Constable Rattan Lal died while around 200 people sustained serious injuries in the violence that raged for three days in north-east Delhi last week.

(Source: ANI)

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Supreme Court: A bench headed by CJ SA Bobde has agreed to hear on March 4 a plea seeking immediate registration of FIR against BJP leaders Kapil Mishra, Anurag Thakur and others for their alleged “hate speech”, that allegedly led to the violence in North-East Delhi. The petition was filed by a group of Delhi violence survivors.

The bench posted the matter for hearing on Wednesday after senior advocate Colin Gonsalves appearing for the survivors told the apex court that Delhi High Court had last week adjourned the issue for six weeks whereas people are dying every day. Gonsalves said that it is an urgent issue and added that the top court should hear the matter today or tomorrow.

The Chief Justice said that he “wished for peace” but added that the court cannot give preventive relief.

“We are not saying people should die. That kind of pressure we are not equipped to handle. We cannot stop things from happening. We cannot give preventive reliefs. We feel a kind of pressure on us… We can only deal with the situation after it occurs, the kind of pressure on us, we can’t handle that… it’s like the court is responsible,”

He further added,

“We read newspapers, we know the kind of comments that are made. Courts come on to the scene after the thing is done and courts have not been able to prevent such a thing. We wish peace…,”

The plea filed by a group of 10 Delhi violence survivors sought an immediate FIR against Kapil Mishra, Anurag Thakur, Parvesh Verma and Abhay Verma who allegedly “indulged in hate speech, rioting, murder and arson”. It sought the constitution of a Special Investigation Team (SIT) with officers from outside Delhi to probe violence and call in the army to maintain law and order in the national capital.
The plea further sought an inquiry committee headed by a retired judge to probe police persons involved in the violence and exemplary compensation to all victims. The petitioners also sought postmortem reports to be released immediately to the families of victims. It also sought a direction to the government and police to make public the full
list of persons detained by police and paramilitary and to preserve all CCTV footage of violence-affected areas.

At least 46 people lost their lives and more than 200 others sustained serious injuries in the violence that rocked North-East Delhi last week.

(Source: ANI)

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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 BriefsHigh Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., directed the State to remove from all Government portals and facebook sites of government institutions and departments the publications that are Anti Citizenship (Amendment) Act, 2019 and National Register of Citizens (NRC).

Court further asked the Eastern Railway and Southern-Eastern Railway to place reports with respect to actual details of loss caused to railway property and damages incurred therein. The reports will also contain a statement in regard to the action taken and the action to be taken for recovery of loss caused for such damages to the railway property.

The Bench decided to leave open the legal issue as to whether the State or the Government could issue such publications at State expense or using the government machinery.

Court also noted the Advocate General Kishore Datta’s response with respect restrictions on internet services, that the same have been lifted throughout the State and the publication material which is anti-CAA and NRC to be withdrawn from circulation.[Sri Surajit Saha v. State of W.B., 2019 SCC OnLine Cal 5228, decided on 23-12-2019]

Hot Off The PressNews

Union Minister of State for Home Affairs, Nityanand Rai, in a written reply to a question regarding the construction of detention camps in Nagaland, in Rajya Sabha, said that no such camps have been constructed.

Further, he added that while the Government of Assam had sought for re-verification of the certain population under NRC in the districts bordering Bangladesh, the Supreme Court had not agreed for the same.

Any person, not satisfied with the outcome of decisions of the claims and objections of the NRIC process may appeal before a designated Foreigners Tribunal constituted under The Foreigners (Tribunal) Order, 1964, within a period of 120 days from the date of such order, and after the disposal of appeal by the Tribunals, the names shall be included or deleted, as the case may be, in the NRIC of the State of Assam.

Ministry of Home Affairs

[Source: PIB]

[Press Release dt. 04-12-2019]

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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 BriefsHigh Courts

I appeal to all the Hindu people of both the Barak Valley as well as the Assam Valley to come together to find an amicable solution because our culture, traditions and religions are same. We should not hate each other just on the basis of language.”

-S.R. Sen, J.

Meghalaya High Court: While disposing of a writ petition concerning the difficulties faced by the residents to get Domicile Certificate (DC) and Permanent Residence Certificate (PRC), A Single Judge Bench comprising of S.R. Sen, J. opined that “National Register of  Citizens (NRC) process is defective as many foreigners became Indians and original Indians were left out.” The “horrific conditions” in Detention Camps where NRC non-qualifiers are sent also found mention in the judgment.

While dealing with the matter, the learned Judge laid focus on the plight of migrants in the State of Assam. He called out the history of formation of the State and the unfortunate partition and it’s after effects on the society. Detailing the change of territories after partition and reposing confidence in idea of India the Judge mentioned, “Pakistan declared themselves as an Islamic country and India since was divided on the basis of religion should have also been declared as a Hindu country but it remained as a secular country.” In later part of his judgment, the Judge further mentions, “I make it clear that nobody should try to make India as another Islamic country, otherwise it will be a dooms day for India and the world.”

He also requested the Prime Minister, Home Minister, Law Minister and the Members of Parliament to “bring a law to allow the Hindus, Sikhs, Jains, Buddhist, Christians, Parsis, Khasis, Jainitias and Garos who have come from Pakistan, Bangladesh and Afghanistan to live in this country peacefully and with full dignity without making any cut off year and be given citizenship without any question or production of any documents.”

In the same stroke the Judge made clear that, “However am not against my Muslim brothers and sisters who are residing in India for generations and abiding Indian laws, they should also be allowed to live peacefully.”

Highlighting the need of a uniform law, he said, “Anybody opposing the Indian Laws and constitution, they cannot be considered as citizens of the country. We must remember that first, we are Indians, then good human beings and thereafter comes the community we belong.”

In the instant case, the petitioner was a resident of Shillong for the last three generations and applied for domicile certificate, but it took ten months to get the domicile certificate only after the intervention of the High Court. Notifications issued by the Meghalaya Government were also brought to notice to the Court according to which for issuing of PRC, a person may be deemed to be a permanent resident if he continuously resides in the same place for not less than 12 years. This was in contravention of the guidelines passed by the Supreme Court and the High Court in earlier cases. Setting aside the notifications and following the case of Rabbe Alam v. State of Meghalaya, 2016 SCC OnLine Megh 301, the Court held that:

(i)a person residing in the State of Meghalaya permanently or at least for the last five years has got every right to apply for the domicile certificate; (ii) a person coming on transfer to serve the State can apply for DC prior to 5 years; (iii) a person residing permanently in the State of Meghalaya for the last 12 years and has an intention to reside permanently, he should be granted PRC without any further questions; (iv) DC or PRC is granted for all purposes.

The matter was disposed of with above observations and directions. [Amon Rana v. State of Meghalaya, 2018 SCC OnLine Megh 274, decided on 10-12-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi and Rohinton Fali Nariman, JJ., after hearing the learned counsels for the parties stated that at present the situation demands for an order to be passed that would open the process for receipt of claims and objections in respect of the final draft NRC.

The present order stated that the process for receipt of claims and objections in respect of entries in the final draft of NRC to be open and further the stated process to be started by 25-09-2018 and would remain effective for a period of 60 days. List of documents on which the claimant could rely for the process were also mentioned.

Further, Additional Solicitor General appearing for the State of Assam, Mr Prateek Hajela would provide his opinion on the permissibility of introduction of one or more above-mentioned documents. The confidential reports filed by Mr Hajela have been placed before the Court in a sealed cover. For the said report, AG Venugopal stated that a copy be made available to the Union of India. Court in its opinion stated that the report contains some confidential and sensitive data which may affect the entire process, so no information pertaining to the exercise be circulated amongst Executive, Legislature or Judicial authority; therefore it should just remain in the Court’s custody for now.  Mr Hajela’s views are to be filed within a span of 15 days. [Assam Public Works v. Union of India, WP(C) No. 274 of 2009, Order dated 19-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi and Rohinton Fali Nariman, JJ., in an order directed the State Coordinator for National Registration (NRC), Registrar General and Census Commissioner of India to not make any statements or undertakings in regard to the preparation of Final NRC.

The above-stated persons had issued some statement in regard to the NRC which were not appropriate and were highly improper. The Court also stated that once the Court had passed an order there could have been no room for any of the authorities to make statements in question.

Therefore, the Supreme Court further stated that the matter concerning is at the final stage where the process for publication of final NRC is to be initiated and completed. The persons concerned who had issued such statements were directed to be cautious in future and devote their time only to the assigned work.

The matter is further listed on 16-08-2018. [Assam Public Works v. Union of India,  2018 SCC OnLine SC 927,Order dated 07-08-2018]