Justice – Too Little, Too Late In Assam!

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The Gauhati High Court has set aside multiple orders of Foreigners’ Tribunals in one month. The tribunals had declared individuals to be foreigners in all of these cases in an erratic manner, with little substantiation of its process, indicating the need for a systemic overhaul. The Leaflet has accessed the following cases from November and December, which are illustrative of the rot in the system. An ex parte order was passed against the petitioner Sukhdev Ree, a tea garden worker, in 2016, by which he was declared a foreigner. The tribunal held that even though the petitioner had filed his written statement and accompanying documents, he failed to appear for cross-examinations on several occasions and discharge the burden of proof placed on him. It appears the petitioner was unwell at the time of the cross-examinations, and could therefore not attend the hearings, due to which the matter proceeded with ex parte. After the order was passed, the petitioner was detained, and put in a detention camp for three years, as a result of which, he was only able to challenge the decision after his release. Ree, on the other hand, submitted that he had sufficient evidence to prove that he is an Indian citizen, including voters lists from 1966 and 1970 which contained his father’s name, and voters lists from 1977 and 2005 where his name is listed.

Observing that citizenship is one of the most important rights available to a person today and that even a quasi-judicial hearing before a Foreigners Tribunal has the power to render a person stateless, the Court held that it was important that the tribunal truly examine the evidence available with the petitioner to prove his citizenship, and granted him another opportunity to appear before the tribunal. The petitioner’s bail is to remain effective during the pendency of the matter on furnishing a bail bond and a local surety. Passing directions to the authorities to collect necessary biometric data from the petitioner, the Court concluded that further failure by Ree to appear before the tribunal would result in this order being vacated and the previous order of the tribunal being revived. Ironically, the order of the Court was passed three days after Ree had died of cardiac arrest. And this is just one among many other similar cases.

The Court reiterated that such decisions affect the fundamental rights of citizens and must be made after evaluating evidence and not as a matter of procedure. “The opinion of the tribunal is used to determine the citizenship of individuals by the relevant authorities, and potentially stripping a person of their fundamental rights must not be taken lightly,” the Court said. It appears that there is no reasonable expectation while appearing before a foreigners’ tribunal. These bodies seem to function based on whims and fancies, and there are no set guidelines as to the determination of citizenship. One is left to ponder about the fate of poor, illiterate, or uneducated individuals who do not possess as many documents. Many regions of Assam continue to reel from the effects of natural calamities, with many losing all their material possessions and being permanently displaced. Expecting all documentation, in perfect condition, nonetheless, seems unrealistic to say the least.

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