Second chance to 27 residents of Assam declared foreigners

Arrested in 2013, the elderly couple came out in 2020 during the COVID-19 lockdown after the Supreme Court (SC) ordered the release of long-term detainees on conditional bail.

The family is modest. Noorjahan is a housewife, and Abdul Jebbar worked as a cleric in a mosque in Tezpur until his arrest in 2013. The family lives in a small house.

But challenges to their detention – first before the Gauhati High Court in 2013, which was dismissed four months later and then before the Supreme Court in 2017 – became part of a landmark top court order last week, declaring 27 Assam residents as foreigners through similar proceedings.

Noorjahan said, “I can’t forget that night when the police almost dragged us away. We were among several families and they (police) were treating us as if we were not human beings but domestic cows.”

He said the family members tried to show their documents to the police officials but the officials refused to investigate. He said, “My father’s name was included in the National Register of Citizens (NRC) of 1951, he had voted as an Indian many times before 1966 and we have all the documents. We tried to show them, but no one listened to us.”

The FT notice was issued in early 2009, and the couple appeared before the tribunal twice. However, according to Noorjahan’s sons, due to miscommunication with her lawyer, they did not receive updates about the next hearing dates. He was declared a foreigner in mid-2012 and about seven months later, on 26 March 2013, he filed a writ petition before the Gauhati High Court.

In 2016, he contacted lawyer Milan Laskar, who represented him before the Supreme Court.

Laskar confirmed that the name of Noorjahan’s father Abdul Khaliq was included in the draft NRC 1951 and he has this document.

“As per records, she accepted the FT notice and appeared once or twice but later stopped. She was declared a foreigner in an ex-parte order,” he said.

His son, Umar Farooq, said he spent more than ₹Rs 12 lakh on legal process. “The process in the High Court and the Supreme Court was extremely expensive and we had to sell our land, cows and whatever valuables we had,” he said.

“We are five brothers and two of us were minors when our parents were arrested. They left their studies and took up work so that we could afford the lawyers’ fees. After 13 years, we finally got a chance to show our documents,” he said.

Supreme Court decision

Last week, a top court bench of Justices Vikram Nath and Sandeep Mehta said that even when a person fails to appear before the Foreigners Tribunal, citizenship cannot be determined through a mechanical or purely technical process. The court remanded all 27 cases to the respective tribunals for fresh adjudication and directed that no coercive action would be taken against the appellants until the proceedings are concluded.

The judgment did not declare any of the appellants as Indian citizens. Instead, it stressed that citizenship disputes, given their serious consequences, should be decided through a process that meets constitutional standards of impartiality.

The court said, “A person tried before a Foreigners Tribunal may ultimately fail to establish Indian citizenship, but the process by which such a determination is made must still meet the constitutional requirements of fairness, reasonableness and non-arbitrariness.”

assam citizenship deadline

Under the Assam Accord, those who entered Assam before January 1, 1966 are recognized as Indian citizens. Those who arrived between January 1, 1966 and March 24, 1971 may remain in the state after registering as aliens and be eligible for citizenship after 10 years, without the right to vote during that period. Those who entered on or after March 25, 1971, are considered illegal immigrants and may be detected and deported.

In 2018, the NRC was conducted using March 24, 1971 as the cut-off date for inclusion in line with the Assam Accord. As part of the exercise, applicants had to establish a “family tree” by proving legitimate connections to their ancestors using documents dating back to 1971.

The 27 appeals before the Supreme Court shared a common feature: each individual was declared an alien following ex parte proceedings. First, the border police referred the cases to FTs in the respective districts. After this the FT issued notices asking the persons to appear on a specific date. Many appeared initially but did not continue, while many others did not even receive notice.

According to advocate Shishir De, former member of the FT in Assam’s Sribhoomi district, if a person misses three consecutive hearing dates, the tribunal has the power to issue an ex-parte order.

Laskar represented five of these 27 cases and said that one of them had evidence of residence in Assam before March 25, 1971.

Aziuddin, 60, was given an FT order in 2010, which was another unilateral order.

The farmer was asked by the FT in 2011 to register his name at the Morigaon Foreigners Regional Registration Office (FRRO), but he did not do so.

According to Laskar, Aziuddin was directed to register with the FRRO within 90 days of the FT’s order. However, due to health issues, he approached the office after more than 180 days. The FRRO refused to register him as he had missed the deadline. He then approached the tribunal seeking a fresh date to complete the registration, but the petition was rejected.

“He later moved the High Court, but nothing changed and he continued to live in uncertainty until the Supreme Court finally allowed him to appeal again before the FT,” Laskar said.

Laskar said, “According to the FT, he did not attend many hearings, but he was not aware of it at the ground level; he did not receive the FT notice. The first notice he received was an FT order which was based on a direct reference from the police.”

Many of the appellants said that they never received the tribunal notices properly. But as per FT records, they attended initially but missed the dates later.

Most of the petitioners are economically poor

Tezpur activist Mansoor Ahmed said many of the petitioners were daily wage labourers. “They leave their work to appear on these dates and most of the time, the process gets delayed due to the absence of FT members or the government lawyer,” he said.

“Absence is contempt of court which is punishable, but it should not take away an Indian’s citizenship,” Ahmed said. His organization, Progressive Society, is working for people fighting for citizenship in many parts of Assam.

Many of the declared foreigners cited illness, poverty, illiteracy, or confusion about the legal process as reasons for not appearing before the FT on the scheduled dates. Many argued that minor differences in spelling, typographical mistakes, or discrepancies in decades-old electoral records and heritage documents ultimately became grounds for them being declared foreigners.

Those who approached the top court included Sabitri Dey, Azbahar Ali, Mohammad Akbar Ali, Abeda Khatoon and Anwara Khatoon. Their petitions argued that highly technical inconsistencies in the historical records affected the solid evidence supporting their citizenship claims.

How tribunal cases unfolded

In the case of Sabitri Dey, the FT declared him and his family as foreigners, as none of them appeared or filed a written statement. The Gauhati High Court later upheld the verdict, primarily on the grounds that he had not participated in the proceedings.

Mohammed Akbar Ali’s brother appeared before the tribunal and informed that Akbar Ali was seriously ill and hence unable to appear. Despite the explanation, the tribunal acted unilaterally and ultimately declared him a foreigner.

Samiran Nessa initially appeared before the tribunal and asked for additional time but later remained absent, resulting in another ex parte declaration. Abeda Khatoon filed a written statement but failed to produce evidence despite being given the opportunity, resulting in the same outcome.

The top court said that although ex-parte proceedings are legally acceptable, they do not relieve tribunals of their obligation to independently assess the available material before reaching any conclusion.

“Ex-parte proceedings may dispense with the participation of the absent party, but it does not take away from objective consideration and meaningful decision by the tribunal,” the bench said.

Activist Kamal Chakraborty said that although unilateral action is a legal process, its implementation is unjust in most cases. “In many cases, the police pasted notices on trees or shops; the person concerned did not even know that they had been asked to appear,” he told HT.

Applying the principle of audi alteram partem, the principle that every person must have an opportunity of being heard, the Court described it as one of the fundamental rules of natural justice and “the rule of fair play in action”.

For Noorjahan and Abdul Jebbar, the legal battle that began more than a decade ago is far from over. But after spending years inside a detention centre, repeated court appearances and a long struggle to establish their identity, they now have something they say they never really had before – a chance to be heard.

“I hope we will be able to prove our citizenship in the court (FT),” Noorjahan said. “At least, we will die as Indians.”