Tribunal Cannot Mechanically Act Upon Any Reference Without Examining the Materials | Gauhati High Court Quashes Foreigners Tribunal’s Order for Lack of Fair Investigation and Due Process
Sanchayita Lahkar
The High Court of Gauhati Division Bench of Justice Kalyan Rai Surana and Justice Malasri Nandi held that the Foreigners Tribunal's opinion declaring the petitioner to be a foreigner was unsustainable in law. The court found that the reference made to the Tribunal was mechanical, lacking proper application of mind and in contradiction to the Enquiry Officer's findings. Consequently, the court set aside the Tribunal's opinion and permitted the State to initiate a fresh inquiry only if specific doubts about the petitioner's nationality arise.
The petitioner challenged the opinion dated 06.03.2020 of the Foreigners Tribunal 10th, Dhubri, passed in F.T. Case No.10/TMH/1211/2018, which arose from "D" Voter Case No.43/D/07. The Tribunal had declared the petitioner a foreigner who entered India post 25.03.1971 without valid documents.
The petitioner contended she is a citizen of India by birth, residing at Uttar Kachakhana, Dhubri, Assam. Her birthplace was village Belguri Part I under Agomoni P.S. Her grandfather, Ainulla @ Aynullah Munsi, and father, Safiar Ali @ Sopior Rahman @ Safior Rahman @ Safiyar Ali, were Indian citizens. Her father passed away on 31.05.2019, while her mother Jarina Bibi is alive.
She was married to Karim Baksh Sk around twenty years ago, residing with him and working in the brick industry across Assam. The petitioner relied on multiple electoral rolls to establish her lineage and Indian citizenship. These included the 1966 and 1977 voter lists bearing the names of her grandfather, father, and step-grandmother; the 1997 and 2005 voter lists bearing the names of her parents and brother; and the 2007, 2010, and 2015 rolls bearing her own name, her husband, and her mother-in-law.
She also submitted a school certificate issued by the Headmistress of Belguri L.P. School confirming she studied up to Class II. She produced land records such as a 1962 Khatian issued to her grandfather and a Periodic Khiraj Patta showing property inheritance by her father. A Gaon Panchayat certificate also certified her parentage and marriage.
The Tribunal had relied upon a verification report prompted by the ERO of 25 Golakganj LAC, who developed doubts about her citizenship following the inclusion of her name in the 2005 electoral roll. The verifying officer reported the petitioner as "not found" at her residence, as she and her husband were reportedly working at a brick kiln in Rangia, Kamrup.
The petitioner submitted that the Tribunal should have dismissed the reference in limine for being procedurally defective and legally untenable as per Moslem Mondal v. Union of India [(2013) 1 GLT 809]. She also argued that the absence of proper enquiry, fair investigation, and violation of procedural safeguards under Article 21 of the Constitution vitiated the entire proceeding.
It was further contended that the referral authority did not ascertain which migration stream applied to her—pre-1966, 1966–71, or post-1971. The Tribunal's presumption of post-25.03.1971 migration lacked any basis.
The petitioner cited several precedents, including:
- Rahim Ali @ Abdur Rahim v. State of Assam, (2024) INSC 511
- Abdul Khalique v. Union of India, (2013) 1 GLT 941
- Motior Rahman v. Union of India, (2020) 1 GLT 330
- Karim Ali v. Union of India, (2022) O Supreme (GAU) 1329
- Sona Kha @ Sona Khan v. Union of India, (2021) 3 GLT 12
The respondents argued that the burden of proving citizenship lies solely with the proceedee under Section 9 of the Foreigners Act, 1946. They contended that evidence must be cogent and convincing, and absence of rebuttal does not automatically validate inadmissible evidence. They referred to decisions in Ohab Ali (WPC 2641/2017), Rukia Begum (WPC 6344/2016), Bijay Das (2018) 3 GLT 118, and Basiron Nessa (2018) 1 GLT 372.
The court referred to the law laid down in Moslem Mondal, noting: "The right to get a fair trial is a basic fundamental and human right. Any procedure which comes in the way of a party in getting a fair trial would be violative of Article 14 of the Constitution."
It further recorded: "Fair trial also includes a fair investigation... The citizenship right is to be jealously protected. The right under Article 21 of the Constitution is available to all persons..."
The bench noted that the referral authority did not indicate any cogent reasons to contradict the Enquiry Officer's finding that no suspicion about the petitioner's nationality existed.
"It may be noted that though the opinion of the Enquiry Officer may not be binding... the Referral Authority must indicate the reasons with supporting materials to overrule such a finding..."
The court found no documentation or evidence presented by the referral authority to justify the reference: "The reference was thus mechanically made and suffers from non-application of mind."
It also held that the Tribunal failed in its duty to satisfy itself before issuing notice: "The Tribunal cannot mechanically act upon any reference without examining the materials on record."
On the absence of the petitioner during verification, the court noted: "As it was reported by their neighbor that she was working in a brick field..."
The court held: "Fair trial and reasonable opportunity required to be afforded to a proceedee also includes supply of the certified copy of any public document..."
The court summarized that the Tribunal failed to exercise due diligence in assessing whether a prima facie case existed.
The court issued the following directives: "We allow this petition by setting aside the impugned opinion dated 06.03.2020, passed by the Foreigners Tribunal 10th, Dhubri in F.T. Case No.10/TMH/1211/2018."
The court clarified: "It is made clear that the State is at liberty to further make an enquiry, if there is specific doubt against the petitioner that she is a foreigner of post 25.03.1971."
It directed: "Transmit the case records to the Tribunal."
Advocates Representing the Parties:
For the Petitioners: Mr. H.R.A. Choudhury, Mr. F.U. Barbhuiya, Ms. S. Das
For the Respondents: Ms. J. Sarma, Central Government Counsel; Mr. G. Sarma, Standing Counsel, FT and NRC; Mr. A.I. Ali, Standing Counsel, ECI; Mr. P. Sarmah, Additional Senior Government Advocate for the State
Case Title: Rafika Bibi @ Rafika Khatun v. Union of India and Others
Neutral Citation: GAHC010106022020
Case Number: WP(C)/3330/2020
Bench: Justice Kalyan Rai Surana, Justice Malasri Nandi
[Read/Download order]
