On the morning of January 11, I arrived at Begum Zan’s home in Assam’s Barpeta district.
I came bearing bad news.
The 54-year-old woman was busy with her household chores in Chengulia, a village on the banks of the Beki river. Her husband, Mansur Ali, had gone fishing.
Two days ago, unknown to Zan, the Gauhati High Court had dismissed her appeal and struck down her citizenship. The reason: she had failed to enroll herself at the foreigners’ regional registration office in time.
“It was during the [first Covid-19] lockdown,” said Zan, as she broke down. “We should have gone for the hearing. But I didn’t know the urgency and our lawyer told us of the deadline three months later.”
Though previous Gauhati High Court orders had been more lenient in similar cases, the two-judge bench hearing her case took a different view.
In doing so, they cited the landmark Supreme Court order that upheld Section 6A of the Citizenship Act, 1955, which devised a framework for awarding citizenship to migrants to Assam. The five-judge bench upheld the section 4:1 in October last year.
Curiously, the Gauhati High Court cited the lone dissenting opinion of Justice JB Pardiwala to declare Zan a foreigner.
“Is it even justice that for a delay in registration, she will lose her citizenship and become illegal?” asked her husband Mansur Ali, the caretaker of a village mosque. The couple survive on the money sent by their three children, who work as migrant labourers outside the state.
The tribunal order – all was not lost
In 2017, Begum Zan was asked to appear before a foreigners’ tribunal – quasi judicial bodies unique to the state that rule on citizenship issues.
As is common in several such cases, the border police had raised a red flag over Zan’s citizenship and accused her of entering Indian territory illegally, leading to a notice from the tribunal.
Zan contested this allegation, arguing that she was a citizen of India by birth, that she was born in Chengulia and had lived in the village all her life – first at her paternal home and then with Ali.
On June 29, 2020, the foreigners’ tribunal in Barpeta district ruled that she was not a citizen by birth.
Nor had Zan been able to prove that she and her father entered Assam before January 1, 1966. But all was not lost. The tribunal was satisfied that the family had entered the state before March 24, 1971.
Both those dates are crucial to determining citizenship status in Assam, as laid out in Section 6A of the Citizenship Act, 1955.
The section was enacted in 1985 to implement the Assam Accord, signed between Assamese leaders and the Indian government, which put an end to a popular movement against “illegal immigrants” from Bangladesh. The law created two categories: those who entered Assam before January 1, 1966, and those who arrived between January 1966 and March 24, 1971.
Both were granted citizenship, but the latter group was denied voting rights for 10 years after being identified as “foreigners”.
Zan, according to the foreigners’ tribunal order, fell in the second category.
The tribunal said that she could still be granted citizenship, provided she registered herself with the FRRO in Barpeta within 30 days of the order – a condition laid down by Section 6A of the Citizenship Act, 1955.
Zan’s husband Ali told Scroll she failed to keep to the deadline as their advocate failed to inform them that they had to register with the FRRO within 30 days. “He took us there three months later, and by then the deadline had passed,” he said.
Ali added: “If we were educated, we would have registered ourselves.” He alleged that their advocate took at least Rs 3 lakh from them as fees.
Within three months of the tribunal order, she filed a formal request with the superintendent of border police in Barpeta for an extension. “We visited the SP’s office for three days. But our lawyer did not take us inside.”
Her request was turned down. In 2024, after doing the rounds of several lawyers’ offices, she finally moved the high court.
The high court order
Zan’s counsel AS Tapadar argued before the high court that she could not register with the concerned FRRO, Barpeta within the prescribed time limit due to a communication gap with the advocate, the Covid-19 lockdown and other compelling reasons. “The delay was neither deliberate nor intentional and was occasioned only due to financial hardship and poor legal advice from the local lawyer, for which considerable time was lost,” Tapadar argued.
But the bench of Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund rejected Begum Zan’s prayer that her citizenship not be struck down because of a delay in registration.
In doing so, the bench was going against earlier orders of the Gauhati High Court that had allowed late registration of several migrants.
The court argued that Justice Pardiwala’s dissenting opinion had forced their hand.
Justice JB Pardiwala had said that those who migrated to Assam between January 1, 1966 and March 24, 1971 but had failed to register themselves with the concerned authority in the prescribed time limit will no longer be eligible for citizenship.
“This Court, being bound by the decision of the Supreme Court of India would not have power to extend time for the petitioner to register herself before the concerned and/or jurisdictional registering authority,” the Gauhati High Court order said.
However, Tapadar, Zan’s advocate, had pointed out that the observation of Justice Pardiwala “is the minority view of the single judge, whereas the majority verdict does not subscribe to the minority view”.
The Gauhati High Court argued that the petitioner has not been able to demonstrate from the Section 6A judgement of the constitution bench that “there was a conflict between the majority opinion and the minority opinion given [in the paragraph concerning registration].”
Tapadar also referred to six earlier cases to show that the Gauhati High Court “has been consistently passing orders to extend the time” for a person who had been adjudged a foreigner to register himself/ herself “on good cause being shown”.
The court rejected this argument stating the previous decisions are “no longer a binding precedent” in light of the “decision of the recent Supreme Court of India.”
“This judgement means that late registration will not be permitted any longer,” Tapadar told Scroll. “Because of this judgement, lots of people will suffer.”
He said that approximately 5,000 people in this category may find it difficult to retain their citizenship and might be sent to detention camps. “We will take this to the apex court.”
Is a minority opinion binding?
Legal experts also contested the high court’s order. “I don't think the minority judgement would have any binding force on any point of law or fact,” Guwahati-based advocate Sauradeep Dey, who has represented many people caught in citizenship disputes.
Dey added: “The high court ought to deal with the issue of delay in registration [at the FRRO] on a case-to-case basis. The delay, if justified, should be condoned. If a person is unable to register for reasons beyond her control, would it imply losing citizenship outright without any option of taking corrective steps? I don't think that would be judicious. This decision has to be appealed in the Supreme Court.”
He said the only point of law to be decided here is whether the minority view, even if it is not in loggerheads with the majority view, would have any binding force.
Back in Chengalia village, the distraught couple was fearful of the road ahead. “We are poor people,” Zan said. “Our children survive by working outside, away from home, and we are staying on railway land. What can we do?”
Her husband Mansur Ali asked me: “Do you think she will be picked up by the police and sent to a detention centre? Is it safe for her to live here now or should we send her away somewhere?”
