The Supreme Court on Wednesday observed that authorities can apply the 30-day rule to challenge a Foreigners Tribunal’s decision declaring a person an “illegal immigrant”, only in cases where an appellant does not appear before the tribunal after receiving a notice, Live Law reported.
Paragraph 3A of Foreigners (Tribunal) Order, 1964, states that if an appellant goes to the tribunal within 30 days of an ex-parte order and gives a reasonable explanation for not showing up earlier, the tribunal can set aside the order declaring him a foreigner. This is to give people a chance to contest the case in the tribunal itself without having to approach a higher court.
The bench of Justices DY Chandrachud, MR Shah and Sanjiv Khanna made the observations while setting aside a Gauhati High Court decision. The High Court had dismissed a petition of an appellant who had challenged a March 2018 order of the Foreigners Tribunal that declared him an “illegal immigrant”.
The police had submitted before the Tribunal that the appellant was an “illegal immigrant” from Bangladesh, who entered India without the requisite documents after March 24, 1971.
The authorities maintain they had served a notice to the appellant by hanging one outside the man’s last known place of residence. But the appellant submitted that the said address was a temporary one, and that he lived there only briefly before shifting to his present permanent place of residence.
As a result, the man said he never received the notice, and failed to appear before the Foreign Tribunal, which then declared him a foreigner who had illegally entered into India.
The man then moved the Gauhati High Court, but the court rejected his plea, noting that a notice had been duly pasted at his known place of residence. In such a scenario, the court said the burden to prove their citizenship lies on the appellant who, “in neglecting to pursue the proceedings, had failed to discharge the burden”.
However, the Supreme Court on Wednesday observed that the order passed by the Foreigners Tribunal did have a record of the permanent place of residence of the appellant. Yet, the notice was served at the man’s last reported, or known place of residence. Further, no effort was made to serve the notice at his permanent address despite authorities knowing where he lived, the court said.
“At the outset, it is material to advert to paragraph 1 of the order of the FT [Foreign Tribunal] which indicates that the tribunal was apprised that while the address of the appellant is shown as (...), at the same time, his permanent residential address at (...) is also indicated. This is further fortified by the statement of the appellant recorded by the Senior Inspector of Police which indicates that the address of the appellant corresponds to the permanent residential address noted in the paragraph 1 of the Tribunal’s order. Besides, the interrogation report before the Inspector of Police also refers to the same address of the appellant in India. Evidently, there was no effort made to serve the appellant at his permanent address”— Supreme Court, Live Law
Based on these observations, the court said that it was “not impressed” by the argument that the appellant had not availed his rights under Paragraph 3A Foreigners (Tribunal) Order.
The Supreme Court noted that Paragraph 3A gives a period of 30 days to an appellant to go to the tribunal and give a reasonable explanation for not showing up earlier, based on which the tribunal can set aside the order declaring him a foreigner.
But when an appellant was not even aware of the order, how can they be expected to file an application within 30 days for setting aside the same, the court asked. “That provision is applicable where they were duly served and still did not appear,” it added. “Here, they were not served at all.”
The Supreme Court added that this was a “very serious matter”. “Opportunity has to be given to them to present their case,” Justice Shah said. “And when you were aware of the permanent address, what prevented you from serving the notice there?”
Besides setting aside the Gauhati High Court order, the Supreme Court also sent the case back to the Foreign Tribunal for fresh consideration.
Under Assam’s National Register of Citizens, or NRC, every person claiming Indian citizenship in Assam is required to submit proof that their ancestry in the country dated to before 1971 – the year Bangladesh was formed. Only those who can prove their citizenship to the government’s liking would be listed on the register. And if an applicant’s parents do not make the registry, the applicant would not either.